Case: 09 2002

Case: 09-2002 Document: 00115980791 Page: 1 Date Filed: 11/25/2009 Entry ID: 5396230
NO. 09-2002
United States Court of Appeals

for the First Circuit
THEODORE GRISWOLD, ET AL.,

Plaintiffs-Appellants,
v.
DAVID P. DRISCOLL, COMMISSIONER OF EDUCATION, ET AL.,
Defendants-Appellees.
ON APPEAL FROM A JUDGMENT

OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
BRIEF OF DEFENDANTS-APPELLEES
MARTHA COAKLEY
Attorney General
of Massachusetts
William W. Porter, 1st Cir. No. 15033

David Guberman, 1st Cir. No. 5564
Assistant Attorneys General
Government Bureau
One Ashburton Place
Boston, Massachusetts 02108
(617) 727-2200, ext. 2976

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 3
STATEMENT OF THE FACTS ............................................................................... 7
SUMMARY OF ARGUMENT ............................................................................... 13
STANDARD OF REVIEW ..................................................................................... 15
ARGUMENT ........................................................................................................... 15
I. THE THREE-YEAR STATUTE OF LIMITATIONS FOR

§ 1983 ACTIONS BARS PLAINTIFFS’ CLAIMS BECAUSE
THE ALLEGEDLY WRONGFUL CONDUCT OCCURRED
IN 1999 BUT THE COMPLAINT WAS NOT FILED UNTIL
2005. ....................................................................................................15
II. THE DISTRICT COURT CORRECTLY HELD THAT THE

COMPLAINT FAILS TO STATE A CLAIM FOR
VIOLATION OF THE FREE SPEECH CLAUSE.............................20
A. The Complaint does not allege any facts that would
demonstrate that the guidelines abridge the plaintiffs’
freedom of speech. ....................................................................20
B. As government speech, the curriculum guidelines are not

subject to review under the First Amendment. .........................24
C. The Board’s inclusion in the Guide of selected resources

“for teaching about genocide and human rights issues”
was also government speech, and did not create a limited
public forum. .............................................................................28
D. Because the Guide was the Board’s own speech, the
Board was free to revise or alter it, and to remove
background resources, even in response to “pressure”
from elected officials or public groups. ....................................34
III. PICO DOES NOT ESTABLISH THE FIRST AMENDMENT

CLAIM PLAINTIFFS ASSERT BECAUSE THE CASE IS
FACTUALLY DISTINGUISHABLE AND, IN ANY EVENT,
HAS NO PRECEDENTIAL VALUE. ................................................38
A. The right plaintiffs seek to enforce – to “receive

information” – cannot be invoked to compel the
government to express, as its own, the contrary views of
others. ........................................................................................38
B. Pico has no precedential value because it has no majority

opinion and Justice White cast his deciding vote on
nonconstitutional grounds. ........................................................44
IV. THE DISTRICT COURT LACKED JURISDICTION

BECAUSE NONE OF THE PLAINTIFFS HAS STANDING. .........47
CONCLUSION ........................................................................................................ 48
ADDENDUM
M.G.L. c. 260, § 2A
Mass. St. 1998, c. 276
TABLE OF AUTHORITIES
Cases
American Civ. Liberties Union v. Miami-Dade County School

Board, 557 F.3d 1177 (11th Cir. 2009) .......................................................... 45
Airport Impact Relief, Inc. v. Wykle,

192 F.3d 197 (1st Cir. 1999) ............................................................................ 7
Ambach v. Norwick, 442 U.S. 68 (1979) ................................................................ 43
Arkansas Educ. Television Comm’n v. Forbes,

523 U.S. 666 (1998).................................................................................27, 28
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)................................................................. 15
Asociación de Educación Privada de Puerto Rico, Inc.

v. García-Padilla, 490 F.3d 1 (1st Cir. 2007) ................................................. 29
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................. 15
Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534 (1986)....................................................................................... 46
Bennett v. Spear, 520 U.S. 154 (1997) ...................................................................... 5
Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)..................................................... 21
Board of Educ. Of Island Trees v. Pico,

457 U.S. 853 (1982)................................................................................passim
Board of Regents of Univ. of Wis. System v. Southworth,

529 U.S. 217 (2000)....................................................................................... 34
Brown v. Hot, Sexy and Safer Productions, Inc.,

68 F.3d 525 (1st Cir. 1995)............................................................................. 27
Carreras-Rosa v. Alves-Cruz, 127 F.3d 172

(1st Cir. 1997) ................................................................................................. 17
Carter v. West Pub. Co., 225 F.3d 1258 (11th Cir. 2000) ........................................ 17
Centro Medico Del Turabo Inc. v. Fecliciano de Melecio,

406 F.3d 1 (1st Cir. 2005).........................................................................15, 16
Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005) .............................................35, 42, 45
City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750 (1988)....................................................................................... 44
Clark v. City of Braidwood, 318 F.3d 764

(7th Cir. 2003)................................................................................................. 17
Conward v. Cambridge School Committee,

171 F.3d 12 (1st Cir. 1999).......................................................................22, 27
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) .............................................................. 15
Cornelius v. NAACP Legal Defense & Educational Fund, Inc.,

473 U.S. 788 (1985)....................................................................................... 20
Del Gallo v. Parent, 557 F.3d 58 (1st Cir. 2009) ...................................................... 32
Downs v. Los Angeles School Dist., 228 F.3d 1003

(9th Cir. 2000)...............................................................................36, 37, 39, 42
Epperson v. Arkansas, 393 U.S. 97 (1968) ..................................................20, 23, 27
Gargano v. Liberty Int’l Underwriters, Inc.,

572 F.3d 45 (1st Cir. 2009).........................................................................7, 14
Goldman v. Sears, Roebuck & Co., 607 F.2d 1014

(1st Cir. 1979) ................................................................................................. 19
Gonzalez v. United States, 284 F.3d 281 (1st Cir. 2002) ......................................... 19
Griwsold v. Connecticut, 381 U.S. 479 (1965) ....................................................... 38
Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001) ...................................................... 17
Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557 (1995) .......................................... 38
Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006) ............................................ 19
Johanns v. Livestock Marketing Ass’n,

544 U.S. 550 (2005).................................................................................24, 25
Jones v. Alcoa, 339 F.3d 359 (5th Cir. 2003) ........................................................... 20
Mack v. Great Atl. & Pac. Tea Co.,

871 F.2d 179 (1st Cir. 1989) .......................................................................... 18
Marks v. United States, 430 U.S. 188 (1977) .......................................................... 44
Marrero-Gutierrez v. Molina, 491 F.3d 1 (1st Cir. 2007)......................................... 17
Martin v. City of Struthers, 319 U.S. 141 (1943) .................................................... 38
Muir v. Alabama Educ. Television Comm’n,

688 F.2d 1033 (5th Cir. 1982) ........................................................................ 45
Muniz-Cabrero v. Ruiz, 23 F.3d 607 (1st Cir. 1994) ............................................... 18
Nat’l Endowment for the Arts v. Finley,

524 U.S. 569 (1998)....................................................................................... 28
National Passenger R.R. Corp. v. Morgan,

536 U.S. 101 (2002)....................................................................................... 17
New York Times v. Sullivan, 403 U.S. 713 (1971) ................................................ 19
Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001) ................................................. 16
Otero v. Rubero, 820 F.2d 18 (1st Cir. 1987) ........................................................... 18
Page v. Lexington County Sch. Dist. One,

531 F.3d 275 (4th Cir. 2008) .......................................................................... 31
Pennhurst State School & Hospital v. Halderman,

465 U.S. 89 (1984)......................................................................................... 26
People for the Ethical Treatment of Animals, Inc. v. Gittjens,

414 F.3d 23 (D.C. Cir. 2005) ......................................................................... 28
Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009) ........................... 24, 29-32
Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65

(1st Cir. 2004) ................................................................................................. 32
Rosenberger v. Rector & Visitors of the Univ. of Virginia,

515 U.S. 819 (1995).................................................................................24, 26
Rumsfeld v. Forum for Academic and Institutional Rights,

547 U.S. 47 (2006)......................................................................................... 39
Sutliffe v. Epping School Dist., 584 F.3d 314

(1st Cir. 2009) ......................................................................... 22, 24, 30-34, 39
United States v. Am. Library Ass’n, 539 U.S. 194 (2003) ..........................28, 33, 46
Velazquez v. Chardon, 736 F.2d 831 (1st Cir. 1984) .........................................18, 19
Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748 (1976)................................................................ 38
Warth v. Seldin, 422 U.S. 490 (1975) ..................................................................... 46
Washington Legal Foundation v. Massachusetts Bar

Foundation, 993 F.2d 962 (1st Cir. 1993) ....................................15, 22, 46, 47
West Virginia State Bd. Of Educ. V. Barnette,

319 U.S. 624 (1943).................................................................................22, 23
Whitemore v. Arkansas, 495 U.S. 149 (1990) ......................................................... 47
Wilson v. Garcia, 471 U.S. 261 (1985) ................................................................... 16
Wooley v. Maynard, 430 U.S. 705 (1977)............................................................... 39
Ysursa v. Pocatello Educ. Ass’n, 129 S.Ct. 1093 (2009) ........................................ 21
Statutes
28 US.C. § 1291 ......................................................................................................... 1
28 U.S.C. § 1983 ....................................................................................1, 3, 4, 13, 15
M.G.L. c. 260, § 2A ................................................................................................. 16
Mass. St. 1998, c. 276 .......................................................................................passim
Rules and Regulations

Fed. R. Civ. P. 12(b)(1).............................................................................................. 3
Fed. R. Civ. P. 12(b)(6)..................................................................................3, 14, 15
Constitutional Provisions
U.S. Const., Amend. I .......................................................................................passim
U.S. Const., Amend. XI ........................................................................................... 26
U.S. Const., Amend. XIV ........................................................................................ 16
Miscellaneous
Erwin Chemerinsky, Federal Jurisdiction 71 (5th ed. 2007) ...................................... 5
M.J. Dolan, The Special Public Purpose Forum and

Endorsement Relationships: New Extensions of
Government Speech, 31 Hastings Const. L.Q. 71 (2004).............................. 23
JURISDICTIONAL STATEMENT
This is an appeal from a final judgment entered by the United States District
Court for the District of Massachusetts (Wolf, D.J.) dismissing this action against
the defendants-appellees. Appendix, p. 13.1 The plaintiffs invoked the federal
question jurisdiction of the district court with respect to “claims under the United
States Constitution and 28 U.S.C. § 1983.” A. 20. Final judgment for the
defendants entered on June 16, 2009. A. 13. Plaintiffs timely filed a notice of
appeal on July 13, 2009. A. 13, 14. This Court has jurisdiction under 28 U.S.C. §
1291.
STATEMENT OF THE ISSUES

In 1998, the Massachusetts Legislature enacted a law requiring the state
Board of Education to “formulate recommendations on curricular materials on
genocide and human rights issues.” Mass. St. 1998, c. 276. The “Armenian
genocide” is one example the statute gives of a “recognized . . . genocide[].” The
Board’s recommendations were to be made “available to all school districts in the
commonwealth on an advisory basis.” In 1999, a Turkish-American group sought
to persuade the Board and the Department of Education to recommend materials
calling the Armenian genocide into question. After some back-and-forth, the
Board and the Department concluded that recommending (what the Complaint
1
References to the Appendix are hereafter abbreviated as “A. [page #].”
calls) contra-genocide materials would run contrary to the Legislature’s command.
In this action, the plaintiffs challenge under the Free Speech Clause of the
First Amendment the Board’s decision in 1999 to remove contra-genocide
materials from among the recommended resources that appeared in a revised
version of the curriculum guide. They seek an order requiring that the Board now
recommend these materials to Massachusetts school districts. The questions
presented on appeal are:
1. Is this action, which was filed in 2005, time-barred under the
applicable three-year statute of limitations, where the only act challenged by
plaintiffs is the Board’s 1999 decision to remove contra-genocide materials from
the curriculum guide?
2. Does the complaint allege a plausible claim for violation of the Free
Speech Clause where (i) it does not allege that the defendants have abridged any
plaintiff’s right to speak freely, and (ii) the Board’s “recommendations on
curricular materials on genocide and human rights issues” under Mass. St. 1998, c.
276, are government speech, which is not subject to scrutiny under the Free Speech
Clause?
3. Where the plaintiffs have failed to allege an injury to a judicially
cognizable interest, do they have standing to sue?

STATEMENT OF THE CASE

On October 26, 2005, the plaintiffs filed this action under 28 U.S.C. § 1983
seeking a declaration that the defendants violated the Free Speech Clause of the
First Amendment by removing materials that challenge the recognition of the
Armenian genocide from a state curriculum guide and an injunction to require that
the materials be “restore[d]” to the guide. A. 7, 42-44. The plaintiffs are three
(now former) high school students, Theodore Griswold, Jennifer Wright, and
Daniel Glanz; their respective fathers and next friends, Thomas Griswold,
Raymond Wright, and Richard Glanz; two high school teachers, William Shechter
and Lawrence Aaronson; and the Assembly of Turkish American Associations
(“ATAA”). A. 21-22. They named as defendants the Massachusetts Board of
Education (“Board”), its former Chairman James A. Peyser (“Peyser”), the
Massachusetts Department of Education, and its former Commissioner David P.
Driscoll (“Driscoll”). A. 22-24.2
On December 23, 2005, the defendants moved to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(1) and (6). A. 8 (docket no. 12); Addendum to
2
Plaintiffs sought relief against Peyser and Driscoll only in their official
capacities. A. 43-44.
Brief of Plaintiffs-Appellants, p. 33-35. 3 As grounds, defendants argued: (1) that
the complaint was time-barred under the applicable three-year statute of
limitations, as plaintiffs had waited six years to bring suit to challenge decisions
made by the defendants in 1999; (2) that the plaintiffs had failed to state a claim
for relief under the Free Speech Clause in challenging Board decisions as to the
content of its curriculum guidelines because these are the government’s own
speech, which is not subject to review under that Clause; and (3) that the plaintiffs
lacked standing because none of them alleged injury to a cognizable interest. Br.
Add. 33-35. After briefing was complete, the district court held a hearing on the
motion on September 18, 2006. A. 12, 253, 376.
On June 10, 2009, the district court entered a Memorandum and Order
allowing defendants’ motion to dismiss, and dismissing the case. Br. Add. 2-32
(Memorandum and Order). The district court first considered defendants’ two
threshold arguments: that this case is barred by the three-year statute of limitations
applicable to Section 1983 actions and that the plaintiffs lack standing to sue. Id.
13-15. The court held that it is “clear from the Complaint” that plaintiff ATAA
knew in 1999 of its alleged injury (the “removal” of contra-genocide references
from the curriculum guide) and that its claims, filed in 2005, were therefore time-
3
References to pages in the Addendum to the Brief of Plaintiffs-Appellants
are hereafter abbreviated as “Br. Add. [page #].”
barred. Br. Add. 14, n.2. The court rejected plaintiffs’ argument that this case
involves a “continuing violation of constitutional rights that extends the statute of
limitations,” because after 1999 the Board, at most, “refus[ed] to remedy” an
earlier alleged violation, and that refusal was not independently actionable. Id.4
As for the defendants’ argument that the plaintiffs lack standing, the court
concluded that it must first examine the merits to determine whether plaintiffs
allege the “invasion of a judicially cognizable interest.” Id. at 15, quoting Bennett
v. Spear, 520 U.S. 154, 167 (1997). The court explained: “[D]eciding whether
there is an injury to a constitutional right often requires an inquiry into the merits
of the case to determine whether a constitutional right was violated.” Id. at 15,
quoting Erwin Chemerinsky, Federal Jurisdiction 71 (5th ed. 2007).
The district court then closely examined the allegations of the Complaint,
and attached exhibits, to determine whether the individual plaintiffs alleged the
violation of a right under the First Amendment, and concluded that they had not.
Br. Add. 16. The court found the curriculum guide to be “a form of government
speech . . . generally exempt from First Amendment scrutiny[,]” Br. Add. 16,
4
The court declined, however, to dismiss the individual plaintiffs’ claims
as time-barred, concluding that “it is not clear from the Complaint when each of
the individual plaintiffs had reason to know of the alleged injury to them.” Br.
Add. 14.
because in it “the state decided what message it recommended be communicated to
students as part of a human rights curriculum.” Id. at 21. The court also found that
“it is not alleged that the Curriculum Guide in any way restricts” the student
plaintiffs’ rights to speak” or that any teacher plaintiff “has been prohibited from
teaching as he wishes about the fate of the Armenians in the Ottoman Empire.” Id.
at 19-20. The Court discerned no allegation that “student or teacher plaintiffs had
been denied access in school to the contra-genocide websites that were removed
from the Curriculum Guide or comparable information.” Id. at 20. And, finally,
the Court thoroughly examined the case upon which plaintiffs mainly rely, Board
of Educ. v. Pico, 457 U.S. 853 (1982) , and concluded that it is not “binding
precedent” because “no opinion commanded five votes” and that even its plurality
opinion “recognized that public officials can prescribe curriculum.” Br. Add. 6,
22-27. Finding no Free Speech Clause violation alleged in the complaint, the
district court allowed the defendants’ motion to dismiss the claims of the
individual plaintiffs “both on the merits and because they lack standing to
maintain their case.” Id. at 16.

On June 16, 2009, the district court entered a separate order of dismissal. A.
13; Br. Add. 1. Plaintiffs filed their notice of appeal on July 13, 2009. A. 13, 14.5
STATEMENT OF THE FACTS6
A law enacted by the Massachusetts Legislature in 1998 required the
Massachusetts Board of Education (“Board”) to “formulate recommendations on
curricular materials on genocide and human rights issues and guidelines for the
teaching of such material.” Mass. St. 1998, c. 276 (“Chapter 276”). The law
stated that the curricular materials and guidelines “may include, but shall not be
limited to, the period of the transatlantic slave trade and the middle passage, the
great hunger period in Ireland, the Armenian genocide, the holocaust and the
Mussolini fascist regime and other recognized human rights violations and
genocides.” Id. The Board’s recommendations were to “be available to all school
5
Two briefs were submitted to the Court by amicae curiae. The brief of
the Turkish American Legal Defense Fund purports to raise a number of issues that
were not raised by plaintiffs below. See, e.g. Arg. §§ I, III, IV. The Court may
not, however, consider issues that are raised only by amicae, and not pressed by the
plaintiffs. Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 205 n.6 (1st Cir.
1999) (“Amici cannot interject . . . issues which the litigants have chosen to
ignore.”).
6
This statement of facts is drawn from the Second Amended Complaint
and its attached exhibits (hereafter “Complaint”). A. 15-252. Solely for purposes
of their motion to dismiss, the defendants accepted as true all well-pleaded
allegations of fact in the Complaint. Gargano v. Liberty Int’l Underwriters, Inc.,
572 F.3d 45, 48-49 (1st Cir. 2009)
districts in the commonwealth on an advisory basis[.]” Id. Chapter 276 required
the Board to file its recommendations with the Legislature no later than March 1,
1999. A. 24, quoting Chapter 276 of the Acts of 1998, in Complaint ¶ 15.
On January 15, 1999, Commissioner Driscoll circulated to the Board a draft
of the Massachusetts Guide to Choosing and Using Curriculum Materials on
Genocide and Human Rights Issues (the "Guide"), as prepared by the Department
of Education under Chapter 276, for consideration at the Board’s January 26
meeting. A. 47. The Guide offered school districts both “recommendations for
locating and selecting curriculum materials . . . and guidelines for the teaching of
such materials.” A. 51. The Guide was “to be used in conjunction with the
Massachusetts Curriculum Frameworks,” which the Board and Department of
Education had published in 1997 in implementing the Massachusetts Education
Reform Act of 1993. A. 51, 52.7 The Guide explained that “[p]articular genocide
and human rights issues are explicitly listed as areas for study in the History and
Social Science Framework.” A. 51. Among the listed areas for study under the
framework topic of World History were the “human toll of 20th century wars and
7
The “frameworks are guides [to school districts] for the development of
coherent and sequential programs of curriculum, instruction, and assessments in
public [schools].” A. 52. The frameworks present “academic content and skills in
the four areas of History, Geography, Economics, and Civics and Government that
are essential to the study of human experience past and present, and to the
development of educated and responsible citizens.” A. 51.
genocides,” including the Holocaust and the “Armenian genocides, mid-1890’s and
1915.” A. 62. As to these topics, the Guide explained that the “study of episodes
such as the Armenian Genocide and the Holocaust often causes students and
teachers to question why such atrocities occurred, when they would occur
elsewhere, and how they might be prevented.” A. 53.
Because only “some” information on genocide and human rights issues “is
contained in textbooks,” the Guide suggested that teachers “wishing to explore
these topics in greater depth must find further information in references and [other
sources].” A. 70. Although the Guide did not “endorse or mandate any curriculum
materials,” it offered “guidelines” for choosing “instructional materials and
programs” in this area. A. 70.8 In the same vein, the Guide provided a set of
questions that Internet users should ask to evaluate web sites as potential sources of
information on genocide and human rights. A. 71. The Guide also included a list
of resources for teaching about genocide and human rights issues; included among
these were the addresses for two Armenian organizations and several “selected
print resources” on the Armenian genocide. A. 72, 73, 76. Thus, the draft Guide
circulated in January 1999 included curricular resources consistent with Chapter
8
For example, the materials should provide “historically accurate and
complete information based on primary sources,” “coherent arguments and
differing points of view on controversial issues,” be “well-written and organized,”
and contain “[d]escriptions of research methods used.” A. 70.
276’s recognition of the Armenian genocide. The draft did not include curricular
resources challenging this view. A. 24-25 (Complaint ¶ 16).
After reviewing the January 15, 1999 draft Guide, the president of the
Turkish American Cultural Society of New England ("TACS-NE") wrote to
Commissioner Driscoll and the Board, asserting that “[t]here is no academic
consensus that there was in fact a deliberate plan of genocide against the
Armenians by the Ottoman Empire,” and urging that “all perspectives and issues”
involved in the “Armenian Question” (including a “contra-genocide perspective”)
be considered in forming the Board’s curriculum recommendations. A. 25, 94-95.
Representatives of TACS-NE also made a presentation to the Board at its January
26 meeting, setting out a similar position. A. 25-26. At the conclusion of the
meeting the Board “adopt[ed] the draft Guide, as presented” except that the Board
“directed the Department to delete appendices D and E in the draft.” A. 26
(Complaint ¶ 18, 19.) Appendix D discussed “definitions of genocide” and
Appendix E included historical summaries of certain genocides, including the
Armenian Genocide. A. 87-92.
The day after the board vote, Commissioner Driscoll wrote to TACS-NE
explaining that “the Board is sensitive to the complexity of the issues contained in
the [Guide]” and that, “in approving the [Guide]” the Board directed the
Department to delete appendices D and E. A. 26. Driscoll also encouraged TACS-

NE “to submit bibliographic references that your group recommends be added to
the resource section” to Susan Wheltle, of the Department’s Instruction and
Curriculum Services staff. A. 26, 97. TACS-NE wrote to Ms. Wheltle on
February 8, 1999, with additional comments on the Guide, which included the
organization’s objection to use of the term “Armenian Genocide” and its “deep
dismay that the claim of [an Armenian] genocide was accepted in the framework as
undisputed and factual.” A. 27, 103. The TACS-NE letter also proposed
additional resources and web sites for inclusion in the Guide that would set forth a
“contra-genocide” position. A. 109. Ms. Wheltle responded in an e-mail dated
February 19 in which she stated that “the Board will not be discussing the Guide
. . . at its upcoming meeting” but that she planned to include curricular materials in
the Guide in the form of references to “the organizations and websites” suggested
by TACS-NE. A. 112. See A. 27-28, 109-10.
Although the Board did not vote to alter the Guide, on March, 1, 1999,
Commissioner Driscoll submitted to the Legislature a version of the Guide that
included four “contra-genocide” websites (website addresses for TACS-NE, two
organizations suggested by TACS-NE, and the Turkish Embassy to the United
States). A. 114, 141-42, 144.
In June 1999, an Armenian American group called attention to the Guide’s
inclusion of curricular materials contrary to Chapter 276’s recognition of the

Armenian genocide. A. 29-30, 155-58. Commissioner Driscoll then circulated a
revised Guide that left out the website addresses for TACS-NE and the two other
organizations it had recommended, while retaining the website address for the
Turkish Embassy. A. 31. In August 1999, both TACS-NE and the Assembly of
Turkish American Associations, a plaintiff here, wrote Commissioner Driscoll in
protest. A. 31-32.
In response, in a letter dated August 31, 1999, Commissioner Driscoll and
Board Chairman Peyser explained that the legislative intent of Chapter 276,
namely, “to address the Armenian genocide . . . and not to debate whether or not
this occurred,” meant that “the Board and the Department of Education cannot
knowingly include resources that call this into question.” A. 32-34, 208-10
(original emphasis). They further wrote that “[t]he explicitness of the statute has
also forced us to reverse our earlier decision to include the website listing for the
Turkish Embassy.” Id. The letter emphasized, however, that the Board and
Department “fully recognize the right of the Turkish community to present its
viewpoint on the events of the latter days of the Ottoman Empire. In addition, it
should be noted that individual [school] districts are free to develop their own
approaches to teaching this historical period.” A. 209-210.
Almost six years later, in June 2005, in response to an inquiry from
plaintiffs’ counsel, Board Chairman Peyser restated this interpretation of Chapter

276: “We do not . . . . interpret Chapter 276 as authorizing the Board to adopt
curricular guidelines that call into question whether the various atrocities
enumerated in the statute actually occurred.” A. 37, 247-49. In October, 2005,
plaintiffs filed this lawsuit.
SUMMARY OF ARGUMENT
The district court correctly dismissed ATAA’s claims as time-barred.
Plaintiffs complain of decisions made by the Commissioner of Education in 1999
not to recommend curricular materials questioning whether the Armenian genocide
actually occurred and “removing” those materials from a version of the curriculum
guide. Plaintiffs did not file suit, however, until 2005. Under 42 U.S.C. § 1983,
suit had to be brought within the three-year statute of limitations period prescribed
by Massachusetts for personal injury actions. Because the complaint challenged
only discrete acts occurring in 1999, the district court correctly rejected the sole
basis plaintiffs argued for tolling the statute of limitations (i.e. that the defendants
engaged in a “continuing violation” of their rights from and after the date the
Guide was revised). Although the district court , on its own, concluded that the
individual plaintiffs’ claims might be timely under a “discovery” rule, it should
have held that they waived any such argument for failing to raise it. (See pages 15-
19, below).
This Court should also affirm the dismissal of the complaint because the
plaintiffs do not have a First Amendment right to force Massachusetts to
recommend to local school districts curricular resource materials that deny the
Armenian genocide. The First Amendment’s Free Speech Clause limits
government interference with private speech; it does not restrict the government’s
own speech. The Board’s exercise of its discretion in selecting and rejecting
curricular resources as appropriate for the Guide is, itself, “speech” by the
government that is not subject to review under the Free Speech Clause for
“viewpoint discrimination” or “educational suitability.” Moreover, the plaintiffs
have alleged no restriction on their own speech, as the curriculum guidelines are
merely “advisory” and place no limitations on what teachers or students in local
schools districts may say or do. (Pages 20-37, below).
The decision upon which plaintiffs rely, Board of Education v. Pico, has no
precedential value, lacking as it does any holding regarding the First Amendment.
Moreover, Pico addressed only the narrow question of removal of books from a
school library, and expressly disclaimed any application to school officials’
decisions or recommendations concerning curriculum. Pico thus has no
application to the alleged facts of the present case. (Pages 37-46, below).
STANDARD OF REVIEW
This Court reviews de novo the grant of a motion to dismiss under Fed. R.
Civ. P. 12(b)(6), “accept[ing] as true all well-pleaded facts in the complaint and
draw[ing] all reasonable inferences in favor of the plaintiffs.” Gargano v. Liberty
Int’l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). The Court need not,
however, accept a complaint’s unsupported conclusions or interpretations of law.
Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962,
971 (1st Cir. 1993). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a dismissal under
Rule 12(b)(6), this Court may affirm the judgment on any basis apparent in the
record. Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008).
ARGUMENT
I. THE THREE-YEAR STATUTE OF LIMITATIONS FOR § 1983

ACTIONS BARS PLAINTIFFS’ CLAIMS BECAUSE THE
ALLEGEDLY WRONGFUL CONDUCT OCCURRED IN 1999
BUT THE COMPLAINT WAS NOT FILED UNTIL 2005.
The Complaint invokes 42 U.S.C. § 1983 (Complaint at 21 [Counts One and
Two]), which “creates a private right of action for redressing abridgments or
deprivations of federally assured rights.” Centro Medico Del Turabo Inc. v.

Fecliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005).9 There being no “specific
statute of limitations governing § 1983 actions, . . . § 1983 actions are best
characterized as personal injury actions . . . .” Wilson v. Garcia, 471 U.S. 261,
266, 279 (1985). Hence “a federal court adjudicating a section 1983 action must
borrow the forum state’s general statute of limitations for personal injury actions,”
Centro Medico Del Turabo Inc. , 406 F.3d at 6, which in Massachusetts is three
years. See M.G.L. c. 260, § 2A (“Except as otherwise provided, actions of tort,
actions of contract to recover for personal injuries, and actions of replevin, shall be
commenced only within three years next after the cause of action accrues.”). See
also, e.g., Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001) (noting parties’
agreement with court’s past borrowing of Massachusetts’ three-year statute of
limitation).
The district court was correct in dismissing ATAA’s claims as time-barred.
P.Br. Add. 14. The complaint alleges that defendants violated plaintiffs’ rights by
removing from the Guide website addresses for organizations supporting (what the
complaint calls) the wartime conflict or contra-genocide thesis. Plaintiffs’
9
In pertinent part, § 1983 provides: “Every person who, under color of any
statute . . . of any State . . ., subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .”
contention is that defendants’ “decision to expunge those materials from the Guide
for political, not educational, reasons contravenes the First and Fourteenth
Amendments to the United States Constitution.” A. 20 (Complaint at 6
[unnumbered paragraph].) Defendants made this decision, and removed the
website addresses from the Guide, in 1999. A. 31-33 (Complaint ¶¶ 27, 30.)
Plaintiffs waited more than six years, until 2005, before filing suit. Because they
waited too long, their claims are time-barred.
The plaintiffs’ claims are not saved by the continuing violation doctrine
because no allegedly wrongful act occurred during the limitations period. P.Br.
34-36. Plaintiffs complain only of the continuing consequences of the 1999
decision to delete certain website addresses from the Guide. There is no
continuing policy or practice giving rise to new injuries within the limitations
period. “Although the limitations period is determined by state law, the date of
accrual is a federal law question.” Carreras-Rosa v. Alves-Cruz, 127 F.3d 172,
174 (1st Cir. 1997). “And under federal law, the continuing violation doctrine does
not save an otherwise untimely suit when ‘a single event gives rise to continuing
injuries’. . . .” Clark v. City of Braidwood, 318 F.3d 764, 766–67 (7th Cir. 2003),
quoting Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001). Accord Carter v.
West Pub. Co., 225 F.3d 1258, 1263–64 (11th Cir. 2000) (distinguishing “between
the present consequence of a one time violation, which does not extend the
limitations period, and the continuation of that violation into the present, which
does”). The reason is that a discrete discriminatory act occurs only at the time it
takes place. See National Passenger R.R. Corp. v. Morgan, 536 U.S. 101, 114
(2002); Marrero-Gutierrez v. Molina, 491 F.3d 1, 6 (1st Cir. 2007) (statute of
limitations accrues “at the first discrete act of discrimination”).
Plaintiffs’ attempt to convert Board Chairman Peyser’s June 27, 2005, letter
to their counsel into “an ongoing policy and practice [of] excluding any contra-
genocide materials from the Guide[]” (P. Br. 36-37) fails for at least two reasons.
First, the Complaint does not claim that excluding curricular materials from the
Guide violates the First Amendment. Rather, the alleged violation is the 1999
removal of curricular materials from the Guide. A. 20, 31-33, 38. See P. Br. 2, 11-
12 (“This case concerns removals only, without any necessary implication for the
selection of educational materials”). Second, the only removal alleged by plaintiffs
occurred in 1999. A. 31-33. Chairman Peyser’s letter merely explains (or, as
plaintiffs correctly state, “reiterates”) his position regarding those pre-limitations
period acts. A. 37, 248-49. Cf. Otero v. Rubero, 820 F.2d 18, 20 (1st Cir. 1987)
(refusal to reinstate employee after demotion is not a continuing violation).
The cases plaintiffs cite in their Brief either support defendants’ position or
are distinguishable. Both Muniz-Cabrero v. Ruiz, 23 F.3d 607 (1st Cir. 1994), and
Velazquez v. Chardon, 736 F.2d 831 (1st Cir. 1984), agree that the continuing
consequences of an allegedly wrongful act -- here, the absence of the “contra-
genocide” websites from the Guide since their removal in 1999 -- do not establish
a continuing violation. As Ruiz explains, “‘it is imperative that we distinguish
between the occurrence of a discriminatory act and the later effects of that act.’”
23 F.3d at 610, quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 182 (1st
Cir. 1989). Similarly, Velazquez explains that “‘[a] continuing violation is not
stated if all that appears from the complaint is that the plaintiff continues to suffer
from the ongoing effects of some past act of discrimination.’” 736 F.2d at 833,
quoting Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir. 1979).10
Because plaintiffs allege only a single constitutional violation – the removal of
contra-genocide materials from the Guide in 1999 -- which occurred more than six
years before this case was filed, the district court correctly rejected the “continuing
violation” approach and dismissed ATAA’s claims as time-barred. P. Br. Add. 12-
14. 11
10
New York Times v. Sullivan, 403 U.S. 713 (1971), is distinguishable
because no plaintiff in this case is subject to an injunction; after the addresses of
the websites were removed from the Guide in 1999, plaintiffs remained free to read
and discuss “contra-genocide” materials obtained from these websites and any
others.
11
The district court declined to find the claims of the individual plaintiffs
time barred, concluding that “it is not clear from the Complaint when each of the
individual plaintiffs had reason to know of the alleged injury to them.” Br. Add.
(footnote continued)
II. THE DISTRICT COURT CORRECTLY HELD THAT THE

COMPLAINT FAILS TO STATE A CLAIM FOR VIOLATION OF
THE FREE SPEECH CLAUSE.
A. The Complaint does not allege any facts that would demonstrate
that the guidelines abridge the plaintiffs’ freedom of speech.
The first issue that arises in this case is whether plaintiffs have identified
governmental action that abridges a right recognized by the Free Speech Clause; if
they have not, the Court “need go no further.” Cornelius v. NAACP Legal
Defense & Educational Fund, Inc., 473 U.S. 788, 797 (1985). That inquiry should
be especially searching in this case, as the Supreme Court has warned against
judicial intervention in conflicts arising in the “operation of the school systems . . .
14. But the individual plaintiffs did not argue below that their claims are timely
under a “discovery” rule, see e.g. Gonzalez v. United States, 284 F.3d 281, 288 (1st
Cir. 2002), nor did they make any such allegations in the Amended Complaint. A.
21-22, 38-42. The individual plaintiffs, like the ATAA, made only the “continuing
violation” argument. See P. Br. 35 (asserting that “[t]he District Court erroneously
rejected the plaintiffs' argument that the constitutional violation is continuing, and
hence the statute of limitations did not run from the date [in 1999] on which the
contra-genocide materials were removed from the Guide.”). Because of the
plaintiffs’ failure to raise a discovery rule argument in opposition to the
defendants’ motion to dismiss, the district court should have treated it as waived,
Iverson v. City of Boston, 452 F.3d 94, 103 (1st Cir. 2006) (theory waived where
plaintiff failed to mention or develop it in response to city’s motion to dismiss)
and, on that basis, dismissed, as untimely, the individual plaintiffs’ claims as well.
See Jones v Alcoa, 339 F.3d 359, 366 (5th Cir. 2003 ) (pleadings need to raise
some basis for tolling to avoid dismissal when it is otherwise obvious that claim
time-barred).
which do not directly and sharply implicate basic constitutional values.” Epperson
v Arkansas, 393 U.S. 97, 105 (1968). “Judicial interposition in the operation of the
public school system of the Nation raises problems requiring care and restraint.”
Id. at 104.
The Free Speech Clause focuses on government restriction of private
speech: “Congress shall make no law . . . abridging the freedom of speech.” U.S.
Const., Amend. I. See Ysursa v. Pocatello Educ. Ass’n, 129 S.Ct. 1093, 1098
(2009). Nothing in the Complaint, however, alleges that the Board or Department
has abridged the plaintiffs’ speech. Rather, the plaintiffs complain only about the
government’s speech, namely, the Board’s “recommendations” to school districts
“on curricular materials on genocide and human rights issues,” which
recommendations are made available “on an advisory basis.” Mass. St. 1998, c.
276. Specifically, the plaintiffs object to the “decision to expunge” materials
questioning whether the Armenian genocide actually occurred, A. 20 (Compl. at
6), and seek a judicial order requiring the Board to revise its guidelines to include
the “contra-genocide” materials. Thus, while the plaintiffs seek to compel the
Board to speak as they direct, the Board’s guidelines do not require the plaintiffs
(or any school district, teacher, or student) to say, or refrain from saying, anything.
Because they are merely “advisory,” the guidelines do not even require
Massachusetts school districts to include human rights or genocide in their

curricula or to include the recommended curricular materials in whatever is taught.
A. 70 (noting that the Board does not “mandate” any curriculum materials).
Accordingly, the Complaint does not state a valid First Amendment claim.
The student plaintiffs (Griswold, Wright and Glanz) do not claim that their rights
to speak have been restricted or inhibited in any way. Cf., e.g., Bethel Sch. Dist. v.
Fraser, 478 U.S. 675 (1986) (First Amendment claim by student disciplined for
language used in school assembly). The students allege only that they “believe”
that they may have been, or may be, “denied the opportunity to receive contra-
genocide viewpoints in school.” A. 38-39. Nor do the teacher plaintiffs, Schechter
and Aronson, claim that their speech rights have been abridged, or that the Board’s
decisions concerning the guidelines have affected their teaching in any way. Cf.
Conward v. Cambridge School Committee, 171 F.3d 12, 17 (1st Cir. 1999) (First
Amendment claim by teacher of retaliation by school district for in-school
speech).12 And plaintiffs do not claim that they have been compelled by the
Commonwealth to speak or act against their wishes. Cf. West Virginia State Bd.
12
Although the Complaint makes conclusory references to the “censorship”
of “viewpoints,” A. 22, 40, 41, it alleges no facts, nor could it, to demonstrate that
the Commonwealth has limited plaintiffs’ right to speak in any way. Accordingly,
these conclusions need not be accepted as true. See Washington Legal Foundation
v. Mass. Bar Foundation, 993 F.2d 962, 971 (1st Cir. 1993) (on a motion to
dismiss, court “will not accept a complainant’s unsupported conclusions or
interpretations of law”).
of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (mandatory recitation in school of
the Pledge of Allegiance violated First Amendment right not to speak). 13
That the guidelines are, expressly, “advisory” means that Massachusetts has
not attempted to compel students or teachers “to confess by word or act” their
adherence to a governmentally prescribed “orthodox[y] in politics, nationalism,
religion, or other matters of opinion.” Barnette, 319 U.S. at 642. The Complaint
thus does not “directly and sharply implicate basic constitutional values,”
Epperson, 393 U.S. at 105, as it must to justify judicial intervention. Rather, the
plaintiffs assert a novel and unsupportable theory under which a “right” to receive
information would entitle them to demand that their preferred resources be retained
13
The associational plaintiff, Assembly of Turkish American Associations
(ATAA), claims that “defendants’ deletion of the ATAA website [from the Guide]
violated the equal protection component of ATAA’s First Amendment Right to
freedom of speech.” A. 43. (Compl. ¶ 57.) But the Complaint does not allege any
facts supporting a claim that Massachusetts censored the ATAA website. There
are no allegations that Massachusetts has taken ATAA’s website off the worldwide
web, restricted its content, or prevented teachers or students (or anyone at all) from
viewing it. The organization remains as free today to propagate its ideas as it was
before Chapter 276 was enacted or the Guide was published. See Sutliffe v.
Epping School District, 584 F.3d 314, 334 (1st Cir. 2009) (“. . . given the infinitely
open and extensive communication possible on the Internet, exclusion from a
particular governmental unit's web site in no way inhibits a private entity's
expressive opportunities . . . .”) (quoting M.J. Dolan, The Special Public Purpose
Forum and Endorsement Relationships: New Extensions of Government Speech,
31 Hastings Const. L.Q. 71, 134 (2004)). The facts alleged in the Complaint assert
only that Massachusetts is not recommending the ATAA website as a resource for
teaching about genocide and human rights issues. Thus, ATAA has also failed to
state a claim of violation of the First Amendment.
among the Board’s curricular recommendations, simply because they were in the
guidelines for about six months in 1999, until state officials concluded that
retaining them was inconsistent with Chapter 276. As explained below, because
these allegations do not state a claim for relief under the Free Speech Clause, the
Complaint was correctly dismissed.
B. As government speech, the curriculum guidelines are not subject

to review under the First Amendment.
Just last Term the Supreme Court reaffirmed that “[t]he Free Speech Clause
restricts government regulation of private speech; it does not regulate government
speech.” Pleasant Grove City v. Summum, 129 S.Ct. 1125, 1131 (2009). “[T]he
Government's own speech . . . is exempt from First Amendment scrutiny.” Id.
(alteration and omission in original) (quoting Johanns v. Livestock Marketing
Ass’n, 544 U.S. 550, 553 (2005)). See Sutliffe v. Epping School Dist., 584 F.3d
314, 329-30 (1st Cir. 2009) (discussing government speech doctrine). Thus, “when
the State is the speaker, it may make content-based choices,” and “it is entitled to
say what it wishes.” Rosenberger v. Rector & Visitors of the Univ. of Virginia,
515 U.S. 819, 833 (1995).
Under Chapter 276, the Board was required to develop and provide
“recommendations on curricular material” to “all school districts in the
commonwealth on an advisory basis . . . .” Thus, there is no question that the

curriculum guidelines are “the Government’s own speech.” Johanns, 544 U.S. at
557. In Johanns, the Court held that generic advertising under the federal Beef
Promotion and Research Act of 1985 is government speech because the “message
of the promotional campaigns is effectively controlled by the Federal Government
itself.” Id. at 560. Under the Act, Congress set the basic promotional message by
statute and the specifics of the advertising were approved by the Secretary of
Agriculture. Id. at 560-61. 14 Similarly, Chapter 276 sets the “basic message” of
the curriculum guidelines (i.e., they shall be “recommendations” and “guidelines”
for teaching “genocide and human rights issues,” and may include “the Armenian
genocide” and other “recognized human rights violations and genocides”) and their
ultimate formulation must be approved by the Board.
The plaintiffs concede that “Chapter 276 delegates authority to the Board to
develop . . . advisory recommendations for readings, and guidelines for teaching to
be made available to local school systems in their respective curricula endeavors.”
P. Br. 24. The plaintiffs argue, however, that the Board should have interpreted
Chapter 276 to permit the inclusion of contra-genocide materials in the Guide and
that the Board was, therefore, not engaged in government speech when it revised
14
Consequently, Johanns held the advertising “exempt from First
Amendment scrutiny,” rejecting a claim by ranchers who argued that assessments
they were required to pay to fund the advertising compelled them to subsidize
speech to which they objected. Id. at 553, 560-67.
the Guide in 1999 (to remove such materials) under a mistaken view of the statute.
P.Br. 25-28. This argument does not assist plaintiffs’ First Amendment claim
because the Guide remains government speech, published as it was under a
statutory delegation, even if the Board was mistaken (according to plaintiffs) about
the breadth of that delegation. The plaintiffs do not argue that the Board exceeded
its delegation or was acting ultra vires. Instead, plaintiffs say only that the Guide
does not contain as much material as Chapter 276 would have permitted.15
Whether or not that is the case, the government speech doctrine protects the
Board’s right not to speak; no authority would support an injunction under the First
Amendment to compel the Board to say more, even if the statute would have
permitted contra-genocide materials in the Guide.16
15
Under plaintiffs’ view of Chapter 276, not including contra-genocide
materials in the Guide is also permissible. See P. Br. 24 (under Chapter 276 “no
topic is made mandatory” in the Guide); Br. 25, n.13 (Chapter 276 “delegates to
the Board what topics to include [in the Guide] and how to present them.”). Thus,
plaintiffs do not contend that Chapter 276 compelled the Board to include contra-
genocide materials in the Guide.
16
And, of course, any claim by plaintiffs that would “enforce” Chapter
276 by requiring the Board to include contra-genocide materials would be barred
by the Eleventh Amendment. Pennhurst State School & Hospital v. Halderman,
465 U.S. 89, 121 (1984) (federal courts lack jurisdiction over “a claim that state
officials violated state law in carrying out their official responsibilities,” because
such a claim is “a claim against the State that is protected by the Eleventh
Amendment.”).
In fact, the government’s latitude to “say what it wishes” in the realm of
curriculum and education policy is well-recognized. In Rosenberger the Court
recognized that “when the [respondent public University] determines the content of
the education it provides, it is the University speaking, and we have permitted the
government to regulate the content of what is or is not expressed when it is the
speaker or when it enlists private entities to convey its own message.” 515 U.S. at
833. The Commonwealth possesses an “undoubted right” to prescribe or
recommend “the curriculum for its public schools.” Epperson, 393 U.S. at 107.17
See Conward, 171 F.3d at 23 (school has broad “right to design curricula and
select textbooks”). Cf. Brown v Hot, Sexy and Safer Productions, Inc., 68 F.3d
525, 533 (1st Cir. 1995) (declining to hold that parents have a “fundamental
constitutional right to dictate the curriculum at the public school to which they
have chosen to send their children”). In designing curriculum, state and local
officials must necessarily make “sensitive choices between subjects to be offered
and competing areas of academic emphasis.” Board of Educ. of Island Trees v.
Pico, 457 U.S. 853, 882 n.1 (1982) (Blackmun, J., concurring). Indeed, the
Supreme Court has observed that governmental activities such as “a university
17
That right is, of course, subject to limitation under the Establishment
Clause of the First Amendment. See, e.g., Epperson, 393 U.S. at 105-109
(Establishment Clause violated by state law prohibiting teaching of evolution
because of perceived conflict with Biblical account of creation).
selecting a commencement speaker, a public institution selecting speakers for a
lecture series, or a public school prescribing its curriculum” by their nature “will
facilitate the expression of some viewpoints instead of others.” Arkansas Educ.
Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998). Thus, in implementing
education policy under Chapter 276, it was permissible for the Commonwealth,
through the Board, to express its own views to the exclusion of others it does not
accept. See Finley, 524 U.S. at 598 (“It is the very business of government to
favor and disfavor points of view.”) (Scalia, J., concurring).
C. The Board’s inclusion in the Guide of selected resources “for

teaching about genocide and human rights issues” was also
government speech, and did not create a limited public forum.
What plaintiffs specifically challenge in this case – the Board’s selection of
“resources for teaching about genocide and human rights issues,” A. 72-77 – is
itself government speech. For example, in Ark. Educ. Television Comm'n v.
Forbes, 523 U.S. 666, 674 (1998), the Court explained that “[w]hen a public
broadcaster exercises editorial discretion in the selection . . . of its programming, it
engages in speech activity.” Thus, even when “compil[ing] the speech of third
parties” the decisions made by a public broadcaster “nonetheless constitute
communicative acts” not subject to claims of viewpoint discrimination. Id; accord
United States v. Am. Library Ass'n, 539 U.S. 194, 204-05 (2003) (plurality
opinion) (government has “broad discretion to make content-based judgments in

deciding what private speech to make available to the public;”this discretion
applicable to “a public library's exercise of judgment in selecting the material it
provides to its patrons”); Nat'l Endowment for the Arts v. Finley, 524 U.S. 569,
585-86 (1998) (upholding NEA’s use of content-based criteria in deciding which
art projects to fund); see also People for the Ethical Treatment of Animals, Inc. v.
Gittjens, 414 F.3d 23, 28-30 (D.C.Cir.2005) (government arts commission “spoke”
when it exercised its discretion to decide which private submissions to accept, and
which to reject, for a public art exhibit, even though the “message” of any artistic
submission was not, itself, that of the government). Thus, the Board’s selection or
rejection of resource materials for inclusion in the Guide was itself a
communicative act of the government not subject to First Amendment review.
The plaintiffs, however, insist that the Board’s inclusion of certain
background resources in the Guide, and its rejection or “removal” of others, is not
speech because the Guide “does not endorse or mandate any curriculum materials.”
A. 70, 183. Pl. Br. 29-32.18 This position has been squarely and recently rejected
18
By taking this approach in the Guide, the Board promoted greater
academic freedom and flexibility; the Board provided advice and recommendations
– but not a mandate – to school districts on curricular materials. Cf. Asociación de
Educación Privada de Puerto Rico, Inc. v. García-Padilla, 490 F.3d 1 (1st Cir.
2007) (regulation restricting private schools’ selection of textbooks violated free
speech and academic freedom rights). Ironically, the plaintiffs would apparently
concede that if the Board mandated that Massachusetts school districts only use
by the Supreme Court and this Court. In Pleasant Grove City v. Summum, 129
S.Ct. 1125 (2009), the Court held that “the City's decision to accept certain
privately donated monuments [for permanent placement in its public park] while
rejecting respondent's [proposed monument] is best viewed as a form of
government speech[,]” that is “not subject to the Free Speech Clause.” Id. at 1138.
The Court explained that:
Government decisionmakers select the monuments that portray what

they view as appropriate for the place in question, taking into account
such content-based factors as esthetics, history, and local culture. The
monuments that are accepted, therefore, are meant to convey and have
the effect of conveying a government message, and they thus
constitute government speech.
Id. at 1134. The selection and display of privately donated monuments was,
therefore, speech even though “a government entity does not necessarily endorse
the specific meaning that any particular donor sees in the monument.” Id. at 1136.
Accordingly, the Court rejected an argument strikingly similar to plaintiffs’ here --
that the City “must ‘adopt’ or ‘embrace’” the “message” of a privately donated
monument before the City’s decision to accept and display the monument in its
park would constitute government speech. Id. at 1135.
certain curricular materials (for example, from Armenian organizations) for
courses on genocide and human rights it would receive greater protection for its
speech. P. Br. 29-30.
In Sutliffe v. Epping School Dist., 584 F.3d 314 (1st Cir. 2009), this Court
rejected a free speech claim by residents who insisted that their group’s web
address appear as a hyperlink on the Town of Epping web site. The Court
explained that, under Pleasant Grove, “when the government uses its discretion to
select between the speech of third parties for presentation through communication
channels owned by the government and used for government speech, this in itself
may constitute an expressive act by the government that is independent of the
message of the third-party speech.” 584 F.3d at 330. Under this reasoning, “the
Town engaged in government speech by establishing a town website and then
selecting which hyperlinks to place on its website.” Id. at 331. Indeed, by
selecting certain hyperlinks to place on the website, the Town “communicated an
important message about itself.” Id. “This expressive activity was independent of
the specific content of the websites that were hyperlinked from the Town's
website.” Id. Thus, under both Pleasant Grove and Sutliffe, the Board need not
have endorsed or embraced the “message” of any of the background resources in
the Guide; the Board’s selection of certain resources for the Guide, and its
exclusion of others, was, itself, government speech not subject to scrutiny under
the Free Speech Clause. See also Page v. Lexington County Sch. Dist. One, 531
F.3d 275, 280 (4th Cir.2008) (school district’s placement of hyperlinks on its web
site to the web sites of private groups was government speech, even though the
district did not incorporate the contents of the linked websites into its own
website).
Plaintiffs also argue that the Guide section on “Resources for Teaching
about Genocide and Human Rights Issues” should be treated as a limited public
forum – wherein the Board could not reject proposed resources based on
“viewpoint” – because that section operates like an “electronic library” in which
the Board was “encouraging” a “diversity of views from private speakers.” P.Br.
2, 30.19 Contrary to this rhetoric, the Complaint alleges no facts that could
plausibly demonstrate that the Board “intentionally open[ed] a nontraditional
forum for public discourse[]” in the educator-resources section of the Guide. Del
Gallo v. Parent, 557 F.3d 58, 72 (1st Cir.2009) (quoting Ridley v. Mass. Bay
Transp. Auth., 390 F.3d 65, 76 (1st Cir.2004)) (internal quotation mark omitted).
Substantially similar arguments were rejected in both Pleasant Grove, 129 S.Ct. at
1137-38, and Sutliffe, 584 F.3d at 333-34.
The purpose of the Guide – including its resources section – was not public
discourse but to provide the Board’s “recommendations on curricular materials . . .
and guidelines for the teaching of such material” to “school districts in the
commonwealth.” Mass. St. 1998, c. 276. One of those recommendations, as
19
Even plaintiff concedes, however, that this “library” was created on an
“advisory” basis for educators. P.Br. at 30
plaintiffs point out, was that teachers present “differing points of view on
controversial issues” and explore “the complexity and ambiguity of the human
condition,” when they select curriculum materials for use in their classrooms. A.
70. P.Br. at 30-31. The fact that this advice to teachers appears in the Guide does
not, as plaintiffs contend, mean that the Board itself dedicated the educator-
resources section of the Guide, A. 72-77, to the public as a platform for debate.
The resources identified in the Guide were those that the Board recommended that
educators consult in preparing to teach about genocide and human rights issues.
These recommendations would be lost entirely if, under the “open access and
viewpoint neutrality” requirements of a public forum analysis, the Board were
forced over its objection to accept any number of resource listings from third
parties. Sutliffe, 584 F.3d at 334. The fact that application of the public forum
doctrine would “defeat the very purpose” of the Guide – as a source of Board
recommendations and guidelines – confirms that “public forum principles . . . are
out of place in the context of this case.” Id. at 333, quoting Am. Library Ass'n,
539 U.S. at 205 (plurality opinion).

D. Because the Guide was the Board’s own speech, the Board was
free to revise or alter it, and to remove background resources,
even in response to “pressure” from elected officials or public
groups.
Plaintiffs gain nothing by alleging that the Guide was revised as a result of
“political pressure” exerted by the Governor, a state Senator, and Armenian
interest groups. A. 16, 18, 29-32, 42. Participation by elected officials and the
public in the formulation of education policy is expected. For example, the Board
provided an opportunity for such participation by TACS-NE and other groups at
the January 1999 meeting at which it approved the Guide. A. 25-26. Although
plaintiffs complain about “political pressure” in connection with development of
the Guide, groups urging inclusion of “contra-genocide” perspectives in the Guide
vigorously lobbied the Board and Department at the January 1999 meeting and in
the months following. Plaintiff ATAA participated in this effort. A. 25-33.
With respect to government speech, the Court has recognized that the
political process is beneficial, not harmful, because it provides citizens with an
opportunity to object to, or influence, the content of such speech, which otherwise
is not subject to First Amendment scrutiny. “When the government speaks . . . to
promote its own policies or to advance a particular idea, it is, in the end,
accountable to the electorate, and the political process for its advocacy.” Board of
Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 235 (2000). “If the
citizenry objects, newly elected officials later could espouse some different or
contrary position.” Id. See Br. Add. at 7. See Sutliffe, 584 F.3d at 331, n.9 (“If
the voters do not like those in governance or their government speech, they may
vote them out of office or limit the conduct of those officials by law, regulation, or
practice.”) (citations and internal quotations omitted). Thus, plaintiffs’ claims of
“political pressure” leading to “viewpoint discrimination” in the Board’s
recommendations on curricular materials raise no First Amendment concerns.
Two federal circuits have dismissed First Amendment claims that bear
striking similarities to the claims in this action; in each case the court held that
positions taken by the state or local school authority on matters of curriculum and
school policy were government speech not subject to a viewpoint discrimination
analysis. In Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005), a textbook author and a
high school student challenged the refusal of the Texas State Board of Education to
approve the author’s text book (on environmental science) for state-funded
purchase by local school districts. Although the Texas education commissioner
had recommended the book’s adoption, after further public comment resulting
from the request of two “conservative think tank organizations,” the Board voted
not to adopt the book. Id. at 609-10. Rejecting the plaintiffs’ claim of
“impermissible viewpoint discrimination,” the Court first acknowledged that Texas
had “broad discretionary power[]” to “establish public school curricula which

accomplishes the states’ educational objectives.” Id. at 611, citing Bd. of Educ. v.
Pico, 457 U.S. 853, 864 (1982) and Ambach v. Norwick, 441 U.S. 68, 76, 77
(1979). After canvassing the Supreme Court’s government speech jurisprudence,
the court concluded that:
[W]hen the [Board] devises the state curriculum for Texas and selects
the textbook with which teachers will teach to the students, it is the
state speaking, and not the textbook author. [* * *] It is necessary for
the Board to exercise editorial judgment over the content of the
instructional materials it selects for use in the public school
classrooms, and the exercise of that discretion will necessarily reflect
the viewpoint of the Board members. [* * *] Further, the Board has a
statutory obligation under Texas law to exercise [its] discretion in
order to promote the state’s chosen message through the Board’s
educational policy.
432 F.3d at 614-15. Accordingly, the Texas Board had the discretion to reject
Chiras’ book “free from [First Amendment] forum analysis or the
viewpoint-neutrality requirement.” Id. at 613, 615. In the present case, the
Massachusetts Board had equally broad discretion to decline the request of Turkish
interests to include contra-genocide materials in the guidelines.
Similarly, in Downs v. Los Angeles School Dist., 228 F.3d 1003 (9th Cir.
2000), cert. denied 532 U.S. 994 (2001), the Ninth Circuit rejected a claim by a
high school teacher that school officials violated his First Amendment rights by
removing materials the teacher posted in the school in response to a school-
sponsored bulletin board set up to recognize Gay and Lesbian Awareness Month.
Id. at 1005. 20 The Court concluded that “[b]ecause the bulletin boards were a
manifestation of the school board’s policy to promote tolerance, and because [the
principal] had final authority over the content of the bulletin boards, all speech that
occurred on the bulletin boards was the school board’s and LAUSD’s speech.” Id.
at 1012. Because the gay awareness bulletin boards contained only “government
speech,” the Court held that “Downs had no First Amendment right to dictate or to
contribute to the content of that speech. Thus, [the school district] did not act
unconstitutionally in removing Downs’s materials . . . .” Id. at 1009. No less than
the District-sponsored bulletin boards in Downs, the Massachusetts guidelines are
also government speech to which the plaintiffs may not “contribute” over the
Commonwealth’s objection.
20
By formal action, the Los Angeles Unified School District had
designated June of each year as “a time to focus on gay and lesbian issues.” Id. at
1005. Because Downs objected to this, he posted materials near his classroom
“testing” the District’s tolerance position on homosexuality. Id. at 1006. The
school principal later removed Downs’ materials, which the principal considered
“inconsistent with” the purposes of the District’s policy. Id. at 1007.
III. PICO DOES NOT ESTABLISH THE FIRST AMENDMENT CLAIM

PLAINTIFFS ASSERT BECAUSE THE CASE IS FACTUALLY
DISTINGUISHABLE AND, IN ANY EVENT, HAS NO
PRECEDENTIAL VALUE.
A. The right plaintiffs seek to enforce – to “receive information” –

cannot be invoked to compel the government to express, as its
own, the contrary views of others.
Because the Commonwealth has placed no restrictions on their speech, the
plaintiffs are left to claim, instead, that the Commonwealth has “abridge[d their]
constitutional right to enjoy the opportunity to receive speech without viewpoint
discrimination practiced by the government unrelated to educational suitability.”
A. 42 (Compl., ¶ 52) (emphasis added).21 As explained above, the government can
– indeed must – articulate its viewpoints to discharge its many functions. And, as
explained below, if citizens have a “right to receive information” under the First
Amendment, it is only to receive the information offered by a willing speaker; it is
not a right to demand that speakers -- including government speakers -- convert
their messages to those preferred by the listener.
21
Despite this conclusory allegation, the individual plaintiffs’ allegations
show no abridgment. The student plaintiffs allege only that they “believe[]” they
“may be denied the opportunity to receive contra-genocide viewpoints in school.”
A. 39 (Compl., ¶ 44a, 44b). The teacher plaintiffs, Schechter and Aaronson,
believe the contra-genocide view should be presented and are free to do so in their
classes, absent restrictions imposed in their districts, which they do not allege. A.
39-41 (Compl., ¶¶ 45-48).
In a number of cases the Supreme Court has recognized, as “peripheral” to
the First Amendment’s explicit guarantee of freedom of speech, a right on the part
of the listener “to receive” information. See Griswold v. Connecticut, 381 U.S.
479, 482-483 (1965) (noting married persons’ “penumbral” right to receive
information from family planning group concerning contraception). The cases
teach that the right “to receive” information does not exist in the abstract; it is
recognized because, without it, the rights of the speaker “would be less secure.”
Id. at 483. Thus, “[f]reedom of speech presupposes a willing speaker. But where a
speaker exists . . . the protection afforded is to the communication, to its source and
to its recipients both.” Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 756 (1976). See, e.g., Martin v. City of
Struthers, 319 U.S. 141, 143 (1943) (free speech guarantee “embraces the right to
distribute literature . . . and necessarily protects the right to receive it”).
The “right to receive” information does not operate as plaintiffs contend – as
a means to compel another party to communicate information that the listener
would like to hear, but the speaker objects to saying. Indeed, “the fundamental
rule of protection under the First Amendment [is] that a speaker has the autonomy
to choose the content of his own message.” Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995). And “one who
chooses to speak may also decide what not to say.” Id. (internal quotations
omitted). See, e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977) (invalidating
state law forbidding New Hampshire citizens from covering up state motto “Live
Free or Die” on license plates as violating “right to refrain from speaking”). See
Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47, 63 (2006)
(government may not “force one speaker to host or accommodate another
speaker’s message”).
In Downs, the Ninth Circuit recognized that these principles are equally
applicable where, as here, the government speaks through its education officals:
“Were we to invoke the Constitution to protect Downs’s ability to make his voice a
part of the voice of the government entity he served, Downs would be able to do to
the government what the government could not do to Downs: compel it to embrace
a viewpoint.” 228 F.3d at 1015. See also Sutliffe, 584 F.3d at 332 n.10
(explaining that “plaintiffs are trying to dictate to the government what it must
include in its presentation”). Here, the plaintiffs allege that “regardless of
whether . . . Chapter 276 bars the inclusion of . . . contra-genocide viewpoints,”
the Board’s decision not to incorporate the plaintiffs’ materials violates the First
Amendment. A. 20. This remarkable assertion turns the First Amendment on its
head, wrongly suggesting that “listeners” have a civil right to compel a State to
express a view that contradicts its own position as embodied in state law.
Nothing in Board of Education, Island Trees Union Free School District No.
26 v. Pico, 457 U.S. 853 (1982), suggests that students or teachers have a right
under the First Amendment to insist that the State insert – or retain – specific
materials in a currriculum guideline prepared to advise school districts and
teachers. In Pico, the Island Trees Board of Education, after rejecting the
recommendations of a committee of parents and school staff, ordered the removal
of nine books from high school and junior high school libraries in the district on
the grounds that the books presented a “moral danger” and were “anti-American,
anti-Christian, anti-sem[i]tic, and just plain filthy.” Id. at 857. The Board’s
removal order was challenged by several students, who claimed that it violated the
First Amendment. Id. at 859. Although the case produced no majority opinion, a
three-judge plurality of the Court referred to, inter alia, the students’ “right to
receive” information in support of its holding that the First Amendment placed
certain limitations on the Board’s exercise of its discretion to remove books from
the district libraries. Id. at 866-69.22 The “limited . . . question” decided by the
plurality concerned only the removal of books from the library; the plurality made
22
This rationale was not, however, embraced by the six concurring and
dissenting Justices. See id. at 878 (Blackmun, J., concurring); 883 (White, J.,
concurring in the judgment); 887-89 (Burger, C.J., dissenting with Powell, J.,
Rehnquist, J., and O’Connor, J.); 895 (Powell, J., dissenting); 910 (Rehnquist, J.,
dissenting, with Burger, C.J., and Powell, J.).
clear that the plaintiffs “[did] not . . . seek to impose limitations on their school
Board’s discretion to prescribe the curricula of the Island Trees schools.” Id. at
862. Indeed, the plurality stated that a school board “might well defend their claim
of absolute discretion in matters of curriculum by reliance upon their duty to
inculcate community values.” Id. at 869 (emphasis in original). Justice Blackmun
made the same point in his concurring opinion, stating that “[i]t is difficult to see
the First Amendment right that I believe is at work here playing a role in a school’s
choice of curriculum[, where] education officials make sensitive choices between
subjects to be offered and competing areas of academic emphasis.” Id. at 878, n. 1
(Blackmun, J., concurring).23 Thus, the Pico plurality was concerned with
students’ access to library books – all authored by “willing” speakers – because of
the “unique role of the school library,” id. at 869, where students can “discover
areas of interest and thought not covered by the prescribed curriculum.” Id.
(internal quotation omitted) (emphasis added). The opinion plainly cannot be
extended to limit the discretion of education officials to decide what materials to
23
In addition, Pico was concerned with the removal of books properly
acquired by a school library. In the present case, the draft guidelines initially
prepared by the Commissioner – and approved by the Board in January 1999 --
contained no reference to contra-genocide web sites. A. 25-26, 72-75. After
lobbying by Turkish-American interests, contra-genocide resources were added to
the Guide, although that revision was never submitted to the Board for a vote. A.
25-28, 114. The resources were then removed when the Commissioner and Board
chair concluded that their inclusion violated Chapter 276. A. 32-33.
identify as potentially suitable curricular resources. Cf. id. at 882 (educators retain
full authority to take “positive educational action” on curriculum-related matters,
even if First Amendment places limits on removal of library books) (Blackmun, J.,
concurring).
Thus, Pico does not suggest that a “right to receive” information can support
the issuance of an injunction to compel the Commonwealth to publish a
curriculum-related position (by recommending “contra-genocide” resources) that is
contrary to the position the Legislature has adopted in Chapter 276. As the Downs
Court explained, in Pico the plurality “was not faced with a case of ‘school board
speech’ or ‘government speech.’” 228 F.3d 1015. Instead, the Pico plurality
rejected the school’s “claim of absolute discretion” as inapplicable to “the school
library and the regime of voluntary inquiry that there holds sway.” Downs, 228
F.3d at 1015, quoting Pico, 457 U.S. at 869. In Chiras, the Fifth Circuit found Pico
similarly inapplicable to the selection of textbooks or similar matters of
curriculum. 432 F.3d at 619-20.
Moreover, the relief plaintiffs seek would interfere with the role of
educational officials in influencing curriculum and fostering particular civic
values. In Pico, the plurality “acknowledged that public schools are vitally
important ‘in the preparation of individuals for participation as citizens,’ and as
vehicles for ‘inculcating fundamental values necessary to the maintenance of a

democratic political system.’” 457 U.S. at 864, quoting Ambach v. Norwick, 441
U.S. 68, 76-77 (1979). In Chapter 276, the Commonwealth advances these
important purposes by directing the Board to “formulate recommendations” and
“guidelines” for “teaching on genocide and human rights issues,” which may
address “the transatlantic slave trade . . . the Armenian genocide, the holocaust”
and “other recognized human rights violations and genocides.” St. 1998, c. 276.
The Pico plurality was careful to explain that courts should not interfere when
school officials address curriculum and promote civic values, even if (in the
plurality’s view) there were constitutional limitations on removing library books
containing individual viewpoints that might undermine such values. Thus, there is
no support in Pico, or elsewhere, for a conception of the First Amendment that
would give students, teachers, or private citizens a right to compel the government
to add their voices when it sets out its curriculum policies and priorities.
B. Pico has no precedential value because it has no majority opinion

and Justice White cast his deciding vote on nonconstitutional
grounds.
Pico also fails to support plaintiffs’ claims because it has no precedential
value. The case failed to produce a majority opinion, resulting in “a fragmented
Court,” where “no single rationale explaining the result enjoys the assent of five
Justices.” Marks v. United States, 430 U.S. 188, 193 (1977). Justice Brennan
wrote the plurality opinion for himself and Justices Marshall, Stevens, and (in part)
Blackmun. Pico, 457 U.S. at 855. Justice Blackmun concurred in part and in the
judgment. Id. at 875. Justice White concurred only in the judgment. Id. at 883.
Chief Justice Burger dissented, joined by Justices Powell, Rehnquist, and
O’Connor. Id. at 885. Justices Powell and Rehnquist also wrote separate
dissenting opinions. Id. at 893, 904.
The “settled jurisprudence” where there is no opinion for the Court is that
“‘the holding of the Court may be viewed as that position taken by those Members
who concurred in the judgmen[t] on the narrowest grounds.’” City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750, 764 n. 9 (1988) (opinion by Brennan,
J.) (bracketed insertion by the Court), quoting Marks v. United States, 430 U.S. at
193. In Pico, Justice Brennan mustered only three votes supporting recognition
under the First Amendment of a student’s “right to receive” information under
which a school board’s discretion to remove books from school libraries might be
limited. 457 U.S. at 866-69.24 Thus the proposition that forms the cornerstone of
this action – that plaintiffs have a constitutional right “to receive speech without
viewpoint discrimination practiced by the government,” Am. Compl., ¶ 52, was not
embraced by six Justices. See id. at 878 (Blackmun, J., concurring); 883 (White,
24
Plaintiffs’ claim that “the First Amendment rights of students may be
directly and sharply implicated by the removal of books from the shelves of a
school library,” Pl. Opp. at 2, quoting Pico, 457 U.S. at 866, is found in Part II-A-
(1) of the plurality opinion, which Justice Blackmun did not join.
J., concurring in the judgment); 887 (Burger, C.J., dissenting); 895 (Powell, J.,
dissenting); 910 (Rehnquist, J., dissenting).
Justice White, whose concurrence in the judgment decided the case,
expressly refused to reach any constitutional question and voted only to remand the
case for a trial on the reasons for the Board’s removal of the books. Pico, 457 U.S.
at 884 (“We should not decide constitutional questions until it is necessary to do
so, or at least until there is better reason to address them than is evident here.”).
Because his opinion provides the narrowest grounds for the judgment, “Pico is of
no precedential value as to the application of the First Amendment.” Muir v.
Alabama Educ. Television Comm’n, 688 F.2d 1033, 1045 n. 30 (5th Cir. 1982).
See American Civ. Liberties Union v. Miami-Dade County School Board, 557
F.3d 1177, 1200 (11th Cir. 2009) (“Pico is a non-decision so far as precedent is
concerned. It establishes no standard.”) ; Chiras, 432 F.3d at 619 (concluding that
"Pico has no precedential value as to the application of First Amendment
principles”). The Pico dissenters were of the same opinion: “[T]here is no binding
holding of the Court on the critical constitutional issue presented.” Pico, 457 U.S.
at 886 n. 2 (Burger, C.J., dissenting). Moreover, no opinion of the Supreme Court

has ever relied on Pico as authority for either the constitutional innovation
proposed in the plurality opinion or for plaintiffs’ even broader claim in this case.25
IV. THE DISTRICT COURT LACKED JURISDICTION BECAUSE

NONE OF THE PLAINTIFFS HAS STANDING.
Because it is apparent that the plaintiffs have not alleged the deprivation of
any right under the First Amendment, or suffered any constitutional harm, it is also
apparent that they lack standing to bring this suit. Whether a plaintiff has standing
“is the threshold question in every federal case, determining the power of the court
to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). “Standing
requirements are most strictly enforced in cases involving constitutional
questions.” Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962,
971 (1st Cir. 1993), citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,
541–42 (1986).
To establish standing, a plaintiff must first “clearly demonstrate that he has
suffered an injury in fact[,] which means an injury to himself that is distinct and
25
In United States v. American Library Assoc., Inc., 539 U.S. 194 (2003),
the Court rejected a First Amendment challenge to a federal law forbidding public
libraries from receiving federal funds for Internet access unless they install
software to block pornographic images and to prevent minors from accessing
Internet material harmful to them. Notably, the Court majority did not cite Pico in
holding that public libraries’ use of Internet filtering software does not violate the
First Amendment rights of library patrons, save for a passing reference in Justice
Breyer’s concurrence to one of Pico’s dissenting opinions. 539 U.S. at 216
(Breyer, J., concurring in judgment).
palpable, as opposed to merely abstract, and the alleged harm must be actual or
imminent, not conjectural or hypothetical.” Washington Legal Found. v.
Massachusetts Bar Found., 993 F.2d at 971 (court’s internal quotation marks,
ellipses, and brackets deleted), quoting Whitemore v. Arkansas, 495 U.S. 149, 155
(1990). For all the reasons explained above, no plaintiff alleges that the defendants
have limited either their ability to speak freely or to hear the speech of any willing
speaker. Not having suffered or being in danger of suffering any concrete injury,
the plaintiffs lack standing.
CONCLUSION
For the foregoing reasons, the judgment dismissing this action should be
affirmed.
Respectfully submitted,
MARTHA COAKLEY
ATTORNEY GENERAL
________________________________
William W. Porter, First Cir. No. 15033
David Guberman, First Cir. No. 5564
Assistant Attorneys General
Government Bureau
One Ashburton Place, 20th Floor
Boston, MA 02108
(617) 727-2200, ext. 2976
November 25, 2009

Certificate of Compliance with FRAP 32(a)

I hereby certify that:
1. This brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because it contains exactly 11,032 words, excluding the parts
of the brief exempted by Rule 32(a)(7)(B)(iii).
2. This brief complies with the typeface and style requirements of
Fed. R. App. P. 32(a)(5) & (6) because it has been prepared in a proportionally
spaced typeface using MS-Word 2003 in 14-point Times New Roman.
_________________________________
William W. Porter
Assistant Attorney General
ADDENDUM
M.G.L. c. 260, § 2A ................................................................................ Addendum 1
Mass. St. 1998, c. 27 ............................................................................... Addendum 2

M.G.L. c. 260, § 2A
§ 2A. Tort, contract to recover for personal injuries, and replevin actions
Except as otherwise provided, actions of tort, actions of contract to recover

for personal injuries, and actions of replevin, shall be commenced only within
three years next after the cause of action accrues.
Mass. St. 1998, c. 276
Chapter 276. AN ACT REQUIRING CERTAIN INSTRUCTIONS IN

THE PUBLIC SCHOOLS OF THE COMMONWEALTH.
Be it enacted, etc., as follows:
The board of education shall formulate recommendations on curricular

material on genocide and human rights issues, and guidelines for the teaching of
such material. Said material and guidelines may include, but shall not be limited to,
the period of the transatlantic slave trade and the middle passage, the great hunger
period in Ireland, the Armenian genocide, the holocaust and the Mussolini fascist
regime and other recognized human rights violations and genocides. In
formulating these recommendations, the board shall consult with practicing
teachers, principals, superintendents, and curricular coordinators in the
commonwealth, as well as experts knowledgeable in genocide and human rights
issues. Said recommendations shall be available to all school districts in the
commonwealth on an advisory basis, and shall be filed with the clerk of the house
of representatives, the clerk of the senate, and the house and senate chairmen of the
joint committee on education, arts, and humanities not later than March 1, 1999.
Approved August 10, 1998.

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Case: 09-2002 Document: 00115980791 Page: 1 Date Filed: 11/25/2009 Entry ID: 5396230

United States Court of Appeals

THEODORE GRISWOLD, ET AL.,

DAVID P. DRISCOLL, COMMISSIONER OF EDUCATION, ET AL.,

ON APPEAL FROM A JUDGMENT

William W. Porter, 1st Cir. No. 15033

(617) 727-2200, ext. 2976

TABLE OF AUTHORITIES ................................................................................... iii

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 1

STATEMENT OF THE CASE .................................................................................. 3

STATEMENT OF THE FACTS ............................................................................... 7

SUMMARY OF ARGUMENT ............................................................................... 13

STANDARD OF REVIEW ..................................................................................... 15

ARGUMENT ........................................................................................................... 15

I. THE THREE-YEAR STATUTE OF LIMITATIONS FOR

II. THE DISTRICT COURT CORRECTLY HELD THAT THE

B. As government speech, the curriculum guidelines are not

C. The Board’s inclusion in the Guide of selected resources

III. PICO DOES NOT ESTABLISH THE FIRST AMENDMENT

A. The right plaintiffs seek to enforce – to “receive

B. Pico has no precedential value because it has no majority

IV. THE DISTRICT COURT LACKED JURISDICTION

CONCLUSION ........................................................................................................ 48

American Civ. Liberties Union v. Miami-Dade County School

Airport Impact Relief, Inc. v. Wykle,

Ambach v. Norwick, 442 U.S. 68 (1979) ................................................................ 43

Arkansas Educ. Television Comm’n v. Forbes,

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)................................................................. 15

Asociación de Educación Privada de Puerto Rico, Inc.

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................. 15

Bender v. Williamsport Area Sch. Dist.,

Bennett v. Spear, 520 U.S. 154 (1997) ...................................................................... 5

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)..................................................... 21

Board of Educ. Of Island Trees v. Pico,

Board of Regents of Univ. of Wis. System v. Southworth,

Brown v. Hot, Sexy and Safer Productions, Inc.,

Carreras-Rosa v. Alves-Cruz, 127 F.3d 172

Centro Medico Del Turabo Inc. v. Fecliciano de Melecio,

City of Lakewood v. Plain Dealer Publishing Co.,

Clark v. City of Braidwood, 318 F.3d 764

Conward v. Cambridge School Committee,

Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) .............................................................. 15

Cornelius v. NAACP Legal Defense & Educational Fund, Inc.,

Del Gallo v. Parent, 557 F.3d 58 (1st Cir. 2009) ...................................................... 32

Downs v. Los Angeles School Dist., 228 F.3d 1003

Epperson v. Arkansas, 393 U.S. 97 (1968) ..................................................20, 23, 27

Gargano v. Liberty Int’l Underwriters, Inc.,

Goldman v. Sears, Roebuck & Co., 607 F.2d 1014

Griwsold v. Connecticut, 381 U.S. 479 (1965) ....................................................... 38

Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001) ...................................................... 17

Hurley v. Irish-American Gay, Lesbian and

Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006) ............................................ 19

Johanns v. Livestock Marketing Ass’n,

Jones v. Alcoa, 339 F.3d 359 (5th Cir. 2003) ........................................................... 20

Mack v. Great Atl. & Pac. Tea Co.,

Marks v. United States, 430 U.S. 188 (1977) .......................................................... 44

Marrero-Gutierrez v. Molina, 491 F.3d 1 (1st Cir. 2007)......................................... 17

Martin v. City of Struthers, 319 U.S. 141 (1943) .................................................... 38

Muir v. Alabama Educ. Television Comm’n,

Muniz-Cabrero v. Ruiz, 23 F.3d 607 (1st Cir. 1994) ............................................... 18

Nat’l Endowment for the Arts v. Finley,

National Passenger R.R. Corp. v. Morgan,