Appeal No.

09-2002

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCIDT

THEODORE GRISWOLD;
HIs PARENT AND NEXT FRIEND THOMAS GRISWOLD;
JENNIFER WRIGHT;
HER PARENT AND NEXT FRIEND, RAYMOND WRIGHT;
DANIEL GLANZ;
HIS PARENT AND NEXT FRIEND, RICHARD GLANZ;
WILLIAM SCHECHTER; LAWRENCE AARONSON; AND
ASSEMBLY OF TuRKISH AMERICAN ASSOCIATIONS,
APPELLANTS

v.

DAVID P. DRISCOLL, COMMISSIONER OF EDUCATION,

MASSACHUSETTS DEPARTMENT OF EDUCATION;
JAMES A. PEYSER, CHAIRMAN,
MASSACHUSETTS BOARD OF EDUCATION;
THE DEPARTMENT OF EDUCATION FOR THE COMMONWEALTH OF MASSACHUSETTS;
AND
THE MASSACHUSETTS BOARD OF EDUCATION,
APPELLEES

ON APPEAL FROM THE FEDERAL DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

BRIEF OF PLAINTIFF-APPELLANTS

Harvey A. Silverglate, of counsel, (1 st Cir. Bar #39843)

Norman S. Zalkind (1 st Cir. Bar #32312)
David Duncan (1 sl Cir. Bar #25106)
ZALKIND, RODRIGUEZ, LUNT & DUNCAN LLP
65a Atlantic Avenue
Boston, MA 02110
(617) 742-6020
 TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................... ii

RULE 26.1 CORPORATE DISCLOSURE STATEMENT .................. 1·

STATEMENT OF JURISDICTION .................................... 1

STATEMENT OF ISSUES ON APPEAL ............................... 2

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

STATEMENT OF FACTS ........................................... 5

SUMMARY OF ARGUMENT ..................................... " 11

ARGUMENT ..................................................... 14

I. THE STANDARD OF REVIEW................................. 14

II. THE VOTES OF EIGHT JUSTICES IN PIca REQUIRE REVERSAL

OF THE ORDER DISMISSING PLAINTIFFS' COMPLAINT ........ 14

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT

THE GUIDE CONSTITUTED GOVERNMENT SPEECH EXEMPT
FROM FIRST AMENDMENT SCRUTINY ....................... 23

A. The Legislature Did not Mandate in Ch. 276 ofthe Session

Laws of 1998 that Massachusetts Educators Expose Students
to only one Side of the Disputed Question whether the Events
ofthe World War I Era Constituted an Armenian Genocide ...... 23

B. The Board of Education did not Engage in Government Speech

in Creating or Promulgating the Guide. On the Contrary.
the Board Explicitly Offered Third Party Resources Akin to
Library Books on Both Sides of Controversial Issues. without
Endorsing any Particular Point of View ...................... 29

1
IV. THE STATUTE OF LIMITATIONS DOES NOT BAR THE CLAIM
OF PLAINTIFF ATAA ........................................ 35

CONCLUSION ................................................... 37

ADDENDUM .

11
 TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ............................... 14

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) ................ 21

Board o/Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
457 U.S. 853 (1982) ............................ 13-15,18-23,33,34

Chiras v. Miller, 432 F3d 606 (5th Cir. 2005) ................... 24,29,33,34

Downs v. Los Angeles Unified Sch. Dist.,

228 F.3d 1003 (9th Cir. 2000) ............................. 29,32,33

. Epperson v. Arkansas, 393 U.S. 97 (1968) .............................. 22

FC.C. v. Pacifica Foundation, 438 U.S. 726 (1978) ...................... 21

Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45 (1st Cir. 2009) ...... 14

Green v. Los Angeles County Superintendent o/Schools,

883 F.2d 1472 (9 th Cir. 1989) ................................... 37

Haley v. Comm 'r o/Public Welfare, 394 Mass. 466, 476 N.E.2d 572 (1985) ... 26

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) .............. 33

Johanns v. Livestock Mktg Ass 'n, 544 U.S. 550 (2005) " ............. 24,29,31

Kansky v. Coca-Cola Bottling Co. o/New England,

492 F.3d 52 (1st Cir. 2007) ..................................... 14

Keyishian v. Bd. o/Regents, 385 U.S. 589 (1967) ........................ 21

Marks v. United States, 430 U.S. 188 (1977) ............................ 19

111
Movsesian v. Victoria Versicherung, A.G., 578 F.3d 1052 (9th Cir. 2009) ..... 21

Muniz-Cabrero v. Ruiz, 23 F.3d 607 (1st Cir. 1994) ................... 36,37

New York Times Co. v. Us., 403 U.S. 713 (1971) ........................ 35

Pico v. Ed. ofEduc., Island Trees Union Free Sch. Dist. No. 26,
638 F.2d 404 (2d Cir. 1980) ................................. 15-17

Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995) .................................. 24,29,31,32

Rust v. Sullivan, 500 U. S. 173 (1991) .................................. 29

Sutliffe v. Epping School District, _ F.3d _,

2009 WL 2973115 (1 st Cir., Sept. 17, 2009) ........................ 33

Tinker v. Des Moines School District, 393 U.S. 503 (1969) ................ 23

Velazquez v. Chardon, 736 F.2d 831, 833 (1st Cir. 1984) ............... 36,37

Washington State Dept. of Social and Health Svces. v. Guardianship,

537 U.S. 371,384 (2003) ...................................... 28

Whitney v. California, 274 U.S. 357, 377 (1927) .......................... 8

Widmarv. Vincent, 454 U.S. 263 (1981) ............................... 29

Willhauckv. Town ofMansfield, 164 F. Supp. 2d 127,140 (D. Mass. 2001) ... 28

STATUTES AND CONSTITUTIONAL PROVISIONS

U.S. CONST. Amend. I .......................................... passim.

28 U.S.C. § 1331 ................................................... 1

28 U.S.C. § 1343 ................................................... 1

IV
42 U.S.C. § 1983 ............. , ................................... 1, 3

Ch. 276, MASSACHUSETTS SESSION LAWS OF 1998 .. 5,10,12,13,20,21,23-26,28

RULES

Fed. R. Civ. Proc. 12 ............................................ 1,4,14

OTHER AUTHORlTIES

Singer & Singer, SUTHERLAND STATUTORY CONSTRUCTION ............... 28

MISCELLANEOUS

Bill No. MA97RHB 3629 ........................................... 25

v
 RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Appellant Assembly of Turkish American Associations ("ATAA") is a

50l(c)(3) nonprofit, non-stock corporation, incorporated in Washington, D.C. As

such, there are no owners and therefore there is no parent corporation, nor is there

any publicly held corporation that owns 10% or more of ATAA.

STATEMENT OF JURISDICTION

Subject Matter Jurisdiction. Plaintiffs brought suit on October 26, 2005 in the

District Court, raising claims under the United States Constitution and 42 U.S.C. §

1983. The District Court had jurisdiction to hear these claims pursuant to 28 U.S.C.

§§ 1331 and 1343(a)(4).

Appellate Jurisdiction. The District Court issued an Order and Memorandum

in this matter on June 10,2009, in which it granted the defendants' motion to dismiss

. the complaint, pursuant to Fed. R. Civ. Proc. 12(b)(1) & (6). A final Order of

Dismissal was entered on the docket on June 16, 2009. This final order disposed of

all of the plaintiffs' claims.! They filed a timely Notice of Appeal on July 13, 2009.

IThe District Court found that ATAA's claims were time-barred by the three
year statute of limitations on section 1983 claims but did not so find as to the
individual Appellants. (Dist. Ct. Op. at 13 n.2, Add. 14).

1
 STATEMENT OF ISSUES ON APPEAL

The issues on appeal are as follows:

(1) Does the First Amendment to the United States Constitution prohibitthe

defendants from removing educationally suitable materials as extra-

curricular references under pressure from elected state officials,

overriding the educational judgments of state educators, solely because

the viewpoints they expressed offended a politically powerful electoral

constituency?

(a) Does the mere title ofthe text and website, Massachusetts

Guide to Choosing and Using Curricular Materials on

Genocide and Human Rights Issues, (the "Guide")

simp liciter, shield the decision to remove materials from its

resource section from First Amendment scrutiny despite

allegations that the website was non-curricular and

indistinguishable from a school library, a limited public

forum?

(b) Do the resources in the Guide constitute "government

speech" exempt from the First Amendment's prohibition of

viewpoint censorship employed to placate a politically

2
 powerful constituency?

(2) Was the failure to reinstate the materials excised from the Guide a

continuing violation of the First Amendment, such that the statute of

limitations did not run on the claims of ATAA?

This Court's review of the District Court's Order, which rests solely on an

interpretation oflaw, is de novo.

STATEMENT OF THE CASE

Plaintiffs, who are public school students and teachers in Massachusetts and

a nonprofit corporation, sued the defendants, the Commissioner of Education, the

Department of Education, the Board of Education and its Chairman, pursuant to 42

u.s.C. § 1983, seeking declaratory and injunctive relief for First Amendment

violations. 2 The complaint alleged that the defendants, state educational officials, in

the ordinary course ofthe administrative process, decided to include in the Guide four

websites that disputed the Armenian genocide thesis, (the "contra-genocide

viewpoint,") because of their educational suitability and pedagogical utility to

2Plaintiffs filed a complaint in the District Court on October 26, 2005. The
complaint was amended twice, on January 6, 2006 and August 31, 2006, to add
current students as parties plaintiff. A motion to amend the complaint a third time,
again to add current students as parties plaintiff, filed on January 19, 2009, was not
acted on before the second amended complaint was dismissed. The second amended
complaint is referred to as the "complaint" in this brief.

3
exposing students to conflicting viewpoints in learning about controversial issues.

It further alleged that Armenian political organizations and state elected officials

pressured the defendants to override the educational judgments made regarding these

materials by insisting that all contra-genocide views be expunged from the Guide

despite their educational merit, to mollify a politically powerful Armenian American

community in Massachusetts, and that the defendants, in violation of the First

Amendment, succumbed to this pressure.

The defendants filed a motion to dismiss for failure to state a claim, pursuant

to Fed. R. Civ. Proc. 12(b)(l) & (6), on December 23,2005. The defendants argued

that their politically-motivated removal of educationally-suitable contra-genocide

materials from the Guide constituted government speech exempt from First

Amendment limitations; and that the complaint was time-barred.

After briefing and oral argument held on September 18, 2006, the District

Court took the motion under advisement for 2 112 years. On June 10, 2009, the Court

granted the defendants' motion. It found that plaintiff ATAA's claims were time-

barred, and that the Guide constituted government speech and hence could be used

for political indoctrination or otherwise without limit under the First Amendment. .

The plaintiffs' remedy, the District Court concluded, was to engage in the resolution

of historical disputes by way of political lobbying, just as the Armenian American

4
groups had done. A final order of dismissal was entered on June 16, 2009, and on

July 13,2009, the defendants filed a timely notice of appeal to this Court from the

Order of the District Court dismissing the complaint.

STATEMENT OF FACTS3

In August of 1998, the Massachusetts legislature enacted Chapter 276 ofthe

Session laws. Chapter 276 directed the Board of Education to

formulate recommendations on curricular rnaterialson 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 ofthe senate, and the house and
senate chairmen of the joint committee on education, arts and
humanities not later than March 1, 1999.

(Comp. ~ 15, App. A24)(emphasis added).

Consistent with the statutory language, the Commissioner, on January 15,

1999, promulgated for comment a draft of "The Massachusetts Guide to Choosing

3Facts are those alleged in the complaint together with attached exhibits, which
are taken as true for purposes of deciding a motion to dismiss.
5
and Using Curricular Materials on Genocide and Human Rights" ("Draft Guide") to

members of the Board. (Comp. ~ 16, App. A24-25). The Draft Guide consisted of

two parts: "[R]ecommendations for locating and selecting curriculum materials on

genocide and human rights issues" and "guidelines for the· teaching of such

materials." (Comp. Ex. 1, at p. 2, App. A51).

The section of the Draft Guide on locating and selecting materials elaborated:

"Although some information on genocide and human rights issues is contained in

textbooks, teachers wishing to explore these topics in greater depth must find further

information in reference and trade books, articles, films, Internet resources, and

literature. The Massachusetts Department ofEducation does not endorse or mandate

any curriculum materials, but offers the guidelines below." (Comp. Ex. 1, at p. 21,

App. A70)(emphasis added). In other words, the Draft Guide did not express the

Department's views, directly or indirectly, on whether the materials included in the

Draft Guide should or should not be curriculum materials. The Draft Guide further

advised that nonfiction materials "should provide" "coherent arguments and differing

points of view on controversial issues." (id.) The Draft Guide listed organizations

and web sites with information on genocide and human rights issues without

endorsement or non-endorsement by the defendants, just as a school library contains

books without endorsement or non-endorsement.

6
 Several Draft Guide references were to organizations and websites that argue

that Armenians in the Ottoman Empire in the World War I era were victims of

genocide as defined by the 1948 United Nations Convention on the Prevention and

Punishment of the Crime of Genocide (the "genocide thesis"). (Comp. at p. 3 and

~ 16, App. A17, A24-25). Reputable scholars dispute the genocide thesis, including

Bernard Lewis (of Princeton University), Guenther Lewy (of University of

Massachusetts, Amherst) and Justin McCarthy (of the University of Louisville).

Among other things, these scholars find unpersuasive any proof showing that

Armenian casualties were the result of a specific intent by the Ottoman government

to destroy them solely because of their ethnicity, as opposed to evidence showing

death caused by rebellion, disease, deportations, starvation, and other natural

calamities of war that also afflicted Ottoman Muslims. (the "contra-genocide

thesis"). (Comp., at p. 4 & Appendix D of Ex. 1, App. A18, A87). No organizations

orwebsites discussing, orreferencing materials discussing, the contra-genocide thesis

were listed in the Draft Guide resource section. (Comp. ~ 16, App. A24-25)

On January 19, 1999, the Turkish American Cultural Society of New England

("TACS-NE") wrote to the Commissioner of Education to submit comments on the

Draft Guide, as part ofthe administrative process. TACS-NE urged modification of

the Draft Guide to include educationally suitable materials presenting the contra-

7
genocide thesis, but did not object to the materials in the Draft Guide presenting the

genocide thesis. On January 26,1999, TACS-NE addressed the Board of Education

at a public meeting to urge the Board to consider contra-genocide materials for

inclusion in the Guide. (Comp. ~~ 17, 18 & Ex. 2, App. A25-26, A93).4 On January

27, 1999, the Commissioner invited TACS-NE to submit to Susan Wheltle, head of

Instruction and Curriculum of the Department of Education, its recommended

bibliographic references for inclusion in the resource section of the Guide. (Comp .

.~ 19 & Ex. 3. App. A26, A96).

Whe1tle corresponded with TACS-NE and with Professor Justin McCarthy, a

scholar whom TACS-NE suggested she contact. Whe1tle then independently vetted

materials provided by TACS-NE for their educational suitability. Exercising

educational judgment on behalf of the Department of Education, she accepted four

web sites from among the TACS-NE recommendations and rejected its other

recommendations. (Comp. ~~ 20,22 & 23 & Exs. 5-7, Ex. 8 at pp. 25, 26, 28, App.

4 TACS-NE did not urge removal of opposing points of view but only
advocated adding a legitimate historical point of view on a controversial issue: "If
there be time to expose through discussion the falsehood and fallacies, to avert the
evil by the processes of education, the remedy to be applied is more speech, not
enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927)(Brandeis, J.,
concurring).
8
A26-28, AlOO-1l2, A141, A142, A144V Based on Ms. Wheltle's review and

evaluation of the materials submitted by TACS-NE, which "helped [her] to

understand this difficult period in history better than [she] did before" (Ex. 7), and her

discussion with Professor McCarthy, the Draft Guide was revised inter alia to include

reference to contra-genocide "organizations and websites ... so that teachers and

high school students will have access to the many bibliographies and other resources

on history and current events they offer." (Jd.). The revised Guide retained the

express disavowal of endorsement of views expressed in the resource materials. The

revised Guide, expressing only determinations of educational suitability (the "Final

Guide") was submitted to the legislature on March 1, 1999. 6 (Comp., 24 & Ex. 8,

App. A28-29, A1l3).

Three months later, educational suitability was made to yield to political

expediency. In June, 1999, long after the formal comment period that produced the

Final Guide had ended, the Commissioner capitulated to political pressure exerted

5References, including contact and website listings, were added for TACS-NE,
ATAA, Institute of Turkish Studies and the Turkish Embassy. Plaintiffs do not
suggest that Ms. Wheltle's educational judgments rejecting some of TACS-NE's
recommendations were unconstitutional.

'Ms. Whe1tle informed TACS-NE, "[w]e plan to include the organizations and
websites you have suggested in the Guide, so that teachers and high school students
will have access to the many bibliographies and other resources on history and
current events they offer." (Comp. Ex. 7, App. AlII).
9
by Armenian advocacy organizations and their politician allies, including then-

Governor Paul Cellucci and Senator Warren Tolman. Disregarding the educational

judgments that informed the Final Guide and motivated by political expediency, he

removed the contra-genocide bibliographic materials. Indicative of the purely

political basis of his actions, the Commissioner further removed the website for the

Institute for Turkish Studies, which contained no discussion of Ottoman Armenian

history whatsoever. (Comp. ~~ 27,32,33, App. A31, A34-35).

In response to subsequent letters fromAA TA and from TACS-NE complaining

about the expungement of contra-genocide materials from the Guide, the

Commissioner and the Chairman ofthe Board of Education belatedly maintained that

Chapter 276 - the handiwork of politicians rather than educators - authorized

presentation only of the genocide thesis championed by the Armenian-American

community in Massachusetts. (Comp. ~~ 28-31, App. A31-34). On June 27, 2005,

the Chairillan of the Board of Education confirmed that he believed the Board was

legally obligated to remove contra-genocide materials, notwithstanding their

educational suitability, because politicians had decreed by fiat how history was to be

viewed and taught. (Comp. ~ 40, App. A37).

When the complaint was filed, the Guide was posted in its entirety on the

Department of Education website, available to all persons with internet access.

10
(Comp. ~~ 34-39, App. A35-37).

SUMMARY OF ARGUMENT

The District Court's dismissal of plaintiffs' complaint did not show judicial

deference to state or local educators. Indeed, plaintiffs' complaint defends the

educational judgments of Massachusetts educators who included references to a

particular historical viewpoint with substantial educational credentials in the Guide.

Instead, the District Court's decision ratifies the actions of politically-motivated

individual politicians to override the educational judgments of educators and remove

those references only because that legitimate viewpoint offended a powerful political

lobby.

This case is not, as the defendants have argued, about flooding federal courts

with a tsunami of First Amendment litigation challenging the countless educational

decisions educators must make in selecting curricular or non-curricular materials to

best educate students. This case is confined to the narrow circumstance where

educators have exercised their educational judgments to include certain materials for

reference by educators and students, but later succumb to pressure from individual

political officials to expunge what is educationally sound, solely to placate a

politically potent group of voters who were offended by the included historical

viewpoints. This case concerns removals only, without any necessary implication for

11
the selection of educational materials where proving a censorship motivation would

be highly problematic or unmanageable. This is a case where motive can clearly be

determined, because materials deemed educationally suitable are suppressed in

response to political pressures.

This appeal presents three core issues: first, the educational function of the

Guide's resources. Plaintiffs' allegations liken it to an electronic school library as

posted on the Department of Education' s website and as described in the language of

the Guide itself. The District Court, however, erroneously disregarded plaintiffs'

allegations in asserting, without factual basis, that every syllable in the Guide

constituted part of the curriculum. Accordingly, every word in the Guide was

"government speech" exempted from First Amendment restrictions. But it is black

letter law that in deciding a motion to dismiss, the District Court must accept

plaintiffs' allegations offact as true. Itdid not do so in this case.

The second issue pivots on statutory construction. The District Court

construed Ch. 276 of 1998 as mandating that the genocide thesis, alone and without

contradiction (whether or not including differing views is educationally suitable)

could be included in the Guide. With this interpretation, the District Court concluded

that the legislature (rather than the Board) had engaged in "government speech" on

the historical controversy. The language of the statute and the Board of Education's

12
first interpretation of that language contradict the District Court's conclusion. The

legislature emphatically did not, in enacting Chapter 276, dictate how history should

be interpreted. 7 On its face, the statute vests discretion in the Board to create a Guide

and to include or exclude whatever the Board sees fit, in consultation with teachers,

administrators and experts. Indeed, the defendants have taken this view of the

Board's role with regard to another topic suggested in Chapter 276, the Irish potato

famine, and have consistently included educationally suitable materials in the Guide

expressing different points of view on that topic, even as they executed an about-face

on the Armenian genocide controversy in response to political pressure and ~xcluded

materials on one side ofthat controversy, despite having found them educationally

suitable for inclusion. A careful reader looks in vain for language mandating that

only the genocide thesis be included in the Guide.

Finally, the District Court erred in concluding that the Supreme Court decision

in Board ofEduc., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853

(1982), is without precedential force because there was no single majority opinion.

Contrary to the District Court's conclusion, a majority inPico agreed that removal of

7If application ofthe government speech doctrine in this case turns on a correct
interpretation of Chapter 276 and this Court has any question that the District Court
erred in its interpretation, the issue should be certify to the Supreme Judicial Court
of Massachusetts.

l3
a book from a school library, after it has been included by professional educators

exercising professional judgment, because of hostility to the viewpoint expressed,

violates the First Amendment. In this case, the Guide functions as an electronic

library. Pica fits this case precisely, even meeting the more stringent First

Amendment test of the dissent in Pica.

ARGUMENT

I. STANDARD OF REVIEW

Appellate review of a district court's entry of an order dismissing a complaint

pursuant to Fed. R. Civ. Proc. l2(b) is de novo. Kansky v. Coca-Cola Bottling Co.

a/New England, 492 F.3d 52,57 (1st Cir. 2007). As in the District Court, all factual

allegations in the complaint must be accepted as true, and a motion to dismiss must

be denied unless the plaintiff has no plausible claim for relief, Ashcroft v. Iqbal, 129

S. Ct. 1937, 1950 (2009); Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45

(1 st Cir. 2009).

II. THE VOTES OF EIGHT mSTICES IN PICa REQUIRE REVERSAL OF

THE ORDER DISMISSING PLAINTIFFS' COMPLAINT.

In Pica, the Supreme Court reviewed a school board's removal, against the

advice of teachers, librarians and administrators, of several books from high school

and junior high school libraries. The trial court had entered summary judgment for

14
 the defendants, concluding that a school board's educational discretion to remove

books is absolute. The Second Circuit Court of Appeals reversed. 8 Affirming the

Second Circuit's reversal, the Supreme Court held that the First Amendment prohibits

. removal of materials from school libraries if the motivation is to suppress ideas

unrelated to educational suitability, and that the motivation ofthe defendants inPico

was a disputed issue of material fact requiring a trial to determine whether the

removals violated the First Amendment. 457 U.S. at 863,872 (plurality opinion); id.

at 879-80, 882 (Blackmun, J., concurring); id. at 883 (White, J., concurring in the

judgment)("The unresolved factual issue, as I understand it, is the reason or reasons

underlying the school board's removal ofthe books.")

Justice White's concurrence only narrowly departed from the plurality. He

explained that factual disputes as to the motivation of the school board remained

unresolved, and that the "difficult First Amendment issues in a largely uncharted

field" would be better addressed on a full factual record. Id. at 884. Justice White

also noted that the case might be resolved without further need for the Supreme

Court's elaboration of the First Amendment issues. Id. at 883.

Justice White agreed, however, that it was necessary to remand to the trial court

Spico v. Bd. ofEduc., Island Trees Union Free Sch. Dist. No. 26,638 F.2d 404
(2d Cir. 1980).
15
to resolve a factual dispute as to the school board's motivation for removing the

books, and concurred in a judgment remanding the case for that purpose. His

decision to do means he had to have concluded that some set of findings would

demonstrate a violation of the First Amendment. If, as the Pica dissenters concluded,

the school board's authority to remove the books in question was exempt from First

Amendment scrutiny, motive would be constitutionally irrelevant. 9

But Justice White did not join the dissenters. Instead, he concluded that the

issue of fact should be litigated for the reasons given by the Second Circuit majority.

One judge in the Second Circuit majority stated the issue to be decided on remand

was whether "the ostensible justifications for [petitioners'] actions ... were simply

pretexts for the suppression of free speech." (Judge Sifton). The second judge in the

majority phrased the issue in slightly different language as "whether petitioners'

removal decision was motivated by a justifiable desire to remove books containing

vulgarities and sexual explicitness or rather by an impermissible desire to suppress

ideas." (Judge Newman). 10 457 U.S. at 860-61. On this "fact-bound issue" Justice

White was "not inclined to disagree with the Court of Appeals," id. at 883, meaning

9Chief Justice Burger's dissent argued vehemently that "[t]here is not a hint in
the First Amendment ... of a 'right' to have the goverrunent provide continuing
access to certain books." 457 U.S. at 889 (Burger, C.l, dissenting).

!OSee Pica v. Bd. ofEduc., supra, 638 F.2d at 417,436-37.

16
that he agreed with the Court of Appeals. His concurrence, predicated on his

agreement with the Court of Appeals, signaled agreement that removal of the books

based on "an impermissible desire to suppress ideas" would violate the First

Amendment. 11

Notwithstanding Justice White's clear statement that he agreed with the Second

Circuit majority and the fact that he voted to remand for a trial ~necessarily

predicated on the assumption that there was an unresolved, disputed issue of material

fact, which of course would be material only if a particular fact-finding might

liThe Second Circuit majority produced two opinions. Judge Sifton would
have entered summary judgment for the plaintiffs, while Judge Newman concluded
that a trial was required to determine the motive of the defendants in removing books
from the library. But both judges agreed that the act of removing books based on the
political viewpoint of their content violates the First Amendment.
Judge Sifton saw infringement ofthe plaintiffs' First Amendment rights in the
defendants' "erratic, arbitrary and free-wheeling" manner of removing the books,
which "insured that the impression would be created that freedom of expression in
the District would be determined in some substantial measure by the majority's will."
The plaintiffs' flouting of procedural regularity would "inevitably leave it a matter
of guesswork for teachers, librarians and students ... whether other efforts at self-
expression on their part [would] be curtailed with equally little notice and equally
little opportunity for defense." 638 F.2d at 416-17.
Judge Newman similarly noted that, especially in the context of a school,
"official action carries an undue risk of suppressing ideas" and that "[t]hose in a
school community .... have a right to be free from official conduct that tends to
suppress ideas - conduct conveying the message that some idea or viewpoint is not
merely unsound, but is not acceptable to be aired within the school community." 638
F.2d at 433 (Newman, J., concurring) Judge Newman noted that this message is
"markedly increased when the decision to remove is politically motivated." Id. at
434.
17
establish a constitutional violation - the District Court concluded instead that Justice

White had avoided any decision about the First Amendment at all: District Court

characterized Justice White's "crucial fifth vote" as resting on the ground "that it was

inappropriate to decide whether a purely political motive for the removal ofthe books

would be unconstitutional unless and until such a motive for the removal was proven

at trial on remand." (Dist. Ct. Op. at 23, Add. 24). In other words, the District Court

believed that Justice White, faced with deciding a summary judgment case, simply

refused to decide whether the defendants' motive, the disputed issue of fact, was

material before the dispute was resolved. This reading ofJustice White's concurrence

in Pica flies in the face of what Justice White said in his concurrence, and is plausible

only if one concludes that Justice White simply refused to decide the case presented

to him. As he stated, however, Justice White voted to affirm the Second Circuit's

decision in agreement with the reasoning of the Second Circuit majority.

Both of the Second Circuit opinions with whose conclusions Justice White

"was not inclined to disagree" focused on politically-motivated suppression of ideas

as a violation of the First Amendment. Judge Sifton, based on the procedural

irregularity leading up to removal of the books, maintained that the plaintiffs should

have prevailed outright.

Thus the narrowest holding in Pica, with five votes, was that the removal of

18
books from a school library with the illicit motive of suppressing ideas violates the

First Amendment. This holding controls this case. It is well settled that "the holding

of the Court may be viewed as that taken by those Members who concurred in the

judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193

(1977).

As m Pico, the plaintiffs in the instant case have alleged facts that

overwhelmingly support a finding that the removal from the Guide of four web sites

which, in the eyes of state educators, were educationally suitable references, was

motivated by political hostility towards the idea and historical arguments that the

tragic events ofthe World War I era involving horrific carnage in wartime conditions

did not amount to a genocide of Armenians. (Comp. ~~ 25,26, App. A29-30). The

complaint further alleges that the removal was not based on any reconsideration of

the educational suitability of the four websites, but was the result of pressure from

elected politicians acting to placate Armenian American voters. (Comp. ~ 27, App.

A3l). The complaint also alleges that Susan Wheltle, the head of instruction and

curriculum at the Massachusetts Board of Education, received contra-genocide

materials for review; and, after appropriate educational vetting, she accepted some,

but not all, of those materials for inclusion in the resource section of the Guide "so

that teachers and high school students [would] have access to the many bibliographies

19
and other resources on history and current events they offer." (Comp. "II 23 & Ex. 7,

App. A27-28, Alll).

Also as in Pica, the removal of educationally suitable contra-genocide web sites

was procedurally suspect. It occurred after the close of the comment period and the

creation ofthe final version ofthe Guide, and after submission to the legislature. The

aroused and politically potent Massachusetts Armenian-American community then

lobbied its political allies to demand removal of the contra-genocide web sites solely

because they took issue with the Armenian-favored genocide thesis. These individual

politicians (not the legislature as an institution), pressured the defendants to remove

the websites, without disputing, indeed without regard to, their educational suitability.

(Comp."II"II 24,27, App. A28-29, A31). The Commissioner of Education capitulated

to these politicians' demands to avoid their wrath - a classic case of discretion as the

better part of valor. The defendants then justified their censorship with a post-hoc.

contrived interpretation of Chapter 276 as mandating that students and teachers be

exposed only to one side of a disputed, controversial period of history, contrary to the

bedrock pedagogical standards espoused in the Guide itself.12 These allegations, if

. l2The Commissioner and the Chair ofthe Board of Education, responding to

letters from plaintiff ATAA and from the Turkish-American Cultural Society ofNew
England, asserted for the first time a claim that the reference to the "Armenian
genocide" in Chapter 276 mandated thatthey include only materials supportive ofthe
position that a genocide had occurred. (Comp."II"II 28-31 & Ex. 14, App. A3l-34,
20
proven, establish a clear-cut imposition of orthodoxy by political fiat in contravention

of the First Amendment. See Keyishian v. Bd. of Regents, 385 U.S. 589, 603

(1967)("the First Amendment ... does not tolerate laws that cast a pall of orthodoxy

over the classroom").

Most, if not all, of the dissenters in Pico would probably agree. The books

removed in Pico contained passages that were sexually graphic and arguably

offensive to major religions, not because of their ideas but because of the language

used to express them. See Pico, Appendix to Opinion of Powell, J., Dissenting, 457

U.S. at 897-903. The contra-genocide materials in the instant case raise no issue of

linguistic propriety. Compare F.c.c. v. Pacifica Foundation, 438 U.S. 726 (1978);

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).

A208). The language in the statute, on which the District Court relies in concluding
that the defendants exercised "government speech" in excising contra-genocide
materials from the resource section ofthe Guide, does not bear the weight the District
Court puts on it,see Part IlIA below. In addition to the language ofthe statute and
the Board's inconsistent interpretations, an additional reason militates in favor of a
construction of Chapter 276 granting discretion to the Board to present all
educationally suitable positions on any of the issues listed in the statute. In
Movsesian v. Victoria Versicherung, A.G., 578 F.3d 1052 (9 th Cir. 2009), the Ninth
Circuit struck down a California statute purporting to endorse the "Armenian
Genocide" thesis, because it confounded the foreign policy approach of the President
and Congress to remain neutral and urge Turkey and Armenia to resolve the question.
If Chapter 276 were interpreted as an official endorsement of the Armenian genocide
thesis by the Commonwealth of Massachusetts, it would be preempted by the plenary
power ofthe federal government over foreign affairs under the rationale ofMovsesian
and would be subject to invalidation on that ground.
21
 Indeed, Justice Rehnquist's dissent (for himself, Chief Justice Burger and

Justice Powell), underscored the difference between the facts inPico and hypothetical

removals of books on patently political or racial grounds discussed by the plurality,

and "cheerfully concede [d] [that removal of books on such grounds might run afoul

of the First Amendment], but as in so many other cases the extreme examples are

seldom the ones that arise in the real world of constitutional litigation. In this case

the facts taken most favorably to respondents suggest that nothing of this sort

happened .. " I would leave for another day - quite confident that that day will not

arrive - the extreme examples posed in Justice BRENNAN's opinion." ld. at 907 -08

(Rehnquist, J., dissenting)( emphasis in original).

This case presents just such an extreme example as those Justice Rehnquist

"cheerfully conceded" could violate the First Amendment: The allegations and

inferences therefrom in the instant case portray the defendants' patently political

decision to remove educationally suitable materials disputing the Armenian genocide

thesis, under pressure from individual Massachusetts politicians acting solely to

mollify an aroused Armenian American community and secure their political support.

It is first cousin to the Scopes Trial and Epperson v. Arkansas, 393 U.S. 97 (1968).

Justice Rehnquist's dissent criticized the plurality's interpretation ofthe First

Amendment to prohibit "suppression of ideas" as too vague to be "a useful analytical

22
 tool in solving difficult First Amendment problems." !d. at 918. Justice Rehnquist

preferred a constitutional standflrd based on official suppression "of one particular

opinion." 457 U.S. at 918 (relying on Tinker v. Des Moines School District, 393 U.S.

503 (1969)). The complaint in this case would satisfy the dissenters because it

alleges suppression of a particular opinion: namely, that the tragic events in the World

War I era of Turkish-Armenian relations did not constitute an Armenian genocide as

defined by the Genocide Convention of 1948.

In sum, Justice Rehnquist' s dissent indicates that eight of the Justices in Pica

would agree that the complaint in this case states a valid First Amendment claim.

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE GUIDE

CONSTITUTED GOVERNMENT SPEECH EXEMPT FROM FIRST
AMENDMENT SCRUTINY.

A. The Legislature Did not Mandate in Ch. 276 of the Session Laws of
1998 that Massachusetts Educators Expose Students to only one Side of
the Disputed Question whether the Events of the World War I Era
Constituted an Armenian Genocide.

The District Court maintained that the complaint challenged removal of

educational materials from a school curriculum, an area that even the plurality

. opinion in Pica excluded from First Amendment oversight. According to the District

Court, changes made among the Draft Guide, the Final Guide and the Revised Final

Guide were all curriculum decisions amounting to government speech exempt from

23
First Amendment scrutiny. E.g., Rosenberger v. Rector & Visitors ofthe Univ. ofVa. ,

515 U.S. 819 (1995); Johanns v. Livestock Mktg. Ass 'n, 544 U.S. 550 (2005).

The District Court reasoned that the Guide "was created as a result of an Act

that required defendants to include materials concerning the 'Armenian genocide'

1998 Mass. Acts 1154;" and that "[t]he Act required distribution of the Curriculum

Guide to all school districts on an 'advisory basis.' Id." From these premises, the

District Court concluded: "In this fashion the state decided what message it

recommended be communicated to students as part of a human rights curriculum.

Therefore, the Curriculum Guide, promulgated pursuant to and consistent with the

Act, is a form of government speech. See Rosenberger, 515 U.S. at 833; Chiras [v.

Miller}, 432 F.3d [606] at 614 [5 th Cir. 2005)]." (Dist. Ct. Op., at p. 20, Add.

21)(emphasis added).

Contrary to the District Court's conclusion, Chapter 276 delegates authority to

the Board of Education to develop, not a curriculum, but advisory recommendations

for readings, and guidelines for teaching to be made available to local school systems

in their respective curricula endeavors. The sole mandate in the statute is that the

Board produce something on genocide and human rights issues. No topic is made

mandatory: "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

24
 in Ireland, the Annenian genocide, the holocaust and the Mussolini fascist regime and

other recognized human rights violations and genocides.,,13 Ch. 276, Session Laws

of 1998 (emphasis added). The District Court fastened on the use of the phrase

"Annenian genocide" in the statute to conclude that the legislature was directing a

particular point of view on the topic. But it would be perverse for the legislature to

have directed the Board to present only one particular point of view on a topic, yet

leave it entirely to the Board's discretion whether to include the topic at all. Further,

the legislature directed the Board to consult with educators and "experts

knowledgeable in genocide and human rights issues" in the course of formulating the

l3It is instructive to look at the legislative history. The original bill introduced
. by Senators Tolman and Honan mandated, rather than permitted, instruction on
specific topics, including "the Annenian genocide": Bill Number MA97RHB 3629,
filed on December 4, 1996 by Senator Tolman read, "An ACT RELATIVE TO THE
INSTRUCTION OF THE GREAT HUNGER PERIOD IN IRELAND, THE
ARMENIAN GENOCIDE AND THE HOLOCAUST. Be it enacted by the Senate and
House of Representatives in General Court assembled, and by the authority of the
same, as follows: SECTION 1. Chapter 69, Section 1D ofthe General Laws is hereby
amended by inserting after the second sentence ofthe third paragraph, 'The standards
must provide for instruction in the Great Hunger Period in Ireland from 1845-1850,
the Armenian Genocide from 1915-1923 and the Holocaust of 1933-1945.'" (Add.
32). Chapter 276 as enacted, in contrast, does not mandate that any of these topics
be taught or included in the Guidelines it calls for. Nor does the original bill require
consultation with "practicing teachers, principals, superintendents, and curricular
coordinators ... as well as experts knowledgeable in genocide and human rights
issues" as does Chapter 276. The statute, in contrast to the original bill, clearly
delegates to the Board what topics to include and how to present them.

25
Guide, suggesting that the legislature intended the Board to develop guidelines based

on sound scholarship, not on uninfonned, or ill-infonned, legislative fiat. The Board

followed legislative intent in the Guide's statements that the Board "does not endorse

or mandate any curriculum materials, but offers the guidelines below," with the

admonition that materials should include "[c]oherent arguments and differing points

of view on controversial issues;" .... "Exploration of the complexity and ambiguity

of the human condition." .... and "an emphasis on critical thinking about historical

sources and events." (Comp. Ex. 1 p. 21, App. A70; Ex. 8 p. 22, App. A138; Ex. 10

p. 20, App. A183; and Ex 17 pp 15-16, App. A232-233).

Contrary to the District Court's interpretation, the most plausible reading of

Chapter 276 is that it enumerates a series of historical events, by generic titles, that

may be covered, but leaves the determination of topics and educational resources to

be included in the Guide to the Board of Education, as a matter of education rather

than politics.

The agency charged with administering Chapter 276 adopted this interpretation

at the outset. 14 Both the Turkish-Annenian controversy and the "great hunger" in

14N0 deference is due to the Commissioner's sudden, post-hoc assertion that the
statute required excision of contra-genocide materials. Haley v. Comm'r of Public
Welfare, 394 Mass. 466, 476, 476 N.E.2d 572, 579 (1985)(absent a properly-
promulgated regulation, detennination of the meaning of a statute is subject to de
novo judicial review). The actual composition of the resource section of the Guide,

26
Ireland were included in the various versions of the Guide. Every version included

materials presenting different positions on whether the great hunger was the result of

a deliberate (i.e. genocidal) policy of the British government. In contrast, the

defendants reversed their view when pressured by politicians, and interpreted the

same statute to limit presentation only of the Turkish-Armenian controversy to the

genocide thesis championed by Armenian-Americans.

If theCommissioner15 believed that the statute mandated teaching the events

moreover, undercuts the Commissioner's post hoc assertion that the Board's hands
were tied by the statutory language. As argued in the text, all versions ofthe Guide
urge the presentation of differing points of view on controversial issues (without
reservation for those issues enumerated by the legislature), all versions include in the
resource section materials presenting differing points of view on the Irish potato
famine, and the official version presented to the legislature (which did not vote to
reject it) included both genocide and contra-genocide materials on the Armenian
issue. Thus the Board construed the statute to give it broad discretion in formulating
the Guide . . The hasty revision in construing the statute - explained only by the
powerful political voice of the Armenian-American lobby and its political allies - is
entitled to no deference.

1
5
The proper administrative agency charged with carrying out this statute is the
Board of Education, and there is no record evidence that the Board has ever adopted
the interpretation of the statute espoused by the Attorney General on its behalf in this
litigation (other than that espousal itself). There was no vote or discussion suggesting
that the Board of Education views the statute as limiting its discretion in formulating
"recommendations on curricular materials on genocide and human rights issues," and
the various versions of the Guide promulgated by the Board, on the contrary, suggest
a view that the statute leaves discretion, not only with the Board, but further with the
various local Boards, to provide differing viewpoints on the historical questions
raised by the Turkish-Armenian controversy.
27
in the World War I era of Turkish-Armenian relations solely as genocide, he would

be constrained similarly to interpret the statute to mandate teaching the Irish famine

as a matter of deliberate, genocidal acts by the British government. "[T]he great

hunger period in Ireland" is listed in tandem with "the Armenian genocide" as a topic

the Board could (but was not required to) include in the Guide. Statutory

construction principles of eiusdem generis and noscitur a sociis require that both

terms be construed in a parallel manner. See, e.g., Washington State Dept. ofSocial

and Health Svces. v. Guardianship, 537 U.S. 371, 384 (2003); Willhauckv. Town of

Mansfield, 164 F. Supp. 2d 127, 140 (D. Mass. 2001). See also 2B Singer & Singer,

SUTHERLAND STATUTORY CONSTRUCTION, §§46.17 & 46.18 (7ili Ed. 2008).

The Board, in promulgating the Guide, exercised its educational judgment in

concluding that the Irish potato famine is subject to differing historical views that

should be available to teachers and students alike. In every version of the Guide,

different interpretations of the Irish famine are included. Before political pressure

was brought to bear, the Board treated the Armenian genocide controversy

identically. Both sides were presented through educationally suitable materials, and

the Board took no view on the relative merits ofthe legitimate historical disputes. Its

belated change of course in construing Chapter 276 with respect to the Turkish-

Armenian controversy, precipitated by the loud and powerful voices ofthe Armenian-

28
American lobby and its political allies, is legally untenable.

B. The Board of Education did not Engage in Government Speech in

Creating or Promulgating the Guide. On the Contrary. the Board
Explicitly Offered Third Party Resources Akin to Library Books on
Both Sides of Controversial Issues, without Endorsing any Particular
Point of View.

The government speech doctrine has been expounded by the Supreme Court

in a series of cases, most notably Johanns, supra; Rosenberger, supra; and Rust v.

Sullivan, 500 U.S. 173 (1991). In Rosenberger, the Court recognized that "when the

state is the speaker, it may make content-based choices," and that this includes

decisions a school makes about "the content of the education it provides." 515 U.S.

at 833. Relying on this doctrine, the Supreme Court in Rust upheld limitations on the

use of federal grants to counsel pregnant women on abortion options, and in Johanns

upheld assessments on cattle sales being used to fund a government-sponsored and

vetted advertising campaign promoting the consumption of beef. Lower courts have

relied on the doctrine to uphold viewpoint limits on postings on a school bulletin

board expressly dedicated to fostering tolerance of gay and lesbian students, Downs

v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000), and on a State Board

of Education's decision not to approve a textbook for use in environmental science

classes, Chiras v. Miller, supra.

But as the Court warned in Rosenberger, although government speech is

29
exempt from First Amendment limitations, "we did not suggest in Widmar [v.

Vincent, 454 U.S. 263 (1981)] that viewpoint-based restrictions are proper when the

University does not itself speak or subsidize transmittal of a message it favors but

instead expends funds to encourage a diversity of views from private speakers." 515

U.S. at 834. The District Court ignored the clear allegations in the complaint, and the

clear statements in the several versions ofthe Guide attached as exhibits thereto, that

the Board was "encouraging] a diversity of views from private speakers." !d. It was

in essence creating the equivalent of an electronic library for use, on an advisory

basis, by administrators, teachers and students.

The government cannot claim exemption from the First Amendment where it

is not promulgating official views. Here, the Board explicitly disavowed that it was

communicating its own view of the historical controversies included in the Guide.

The Board further disavowed an intention to recommend or endorse any materials in

the Guide for inclusion as part of a curriculum. It stated at the beginning of the

resource section (in every version of the Guide) "The Massachusetts Department of

Education does not endorse or mandate any curriculum materials, but offers the

guidelines below." The guidelines prefacing bibliographical listings include:

"Coherent arguments and differing points of view on controversial issues;" ... .

"Exploration of the complexity and ambiguity of the human condition." .... "an

30
emphasis on critical thinking about historical sources and events."

These explicit statements that the Board was not endorsing or adopting any

point of view, and that it recommended presentations of "differing points of view"

emphasizing "complexity and ambiguity" and "critical thinking" contrast with the

cases relied on by the District Court, where the government was itself speaking. In

Johanns, for example, Congress directed that meat consumption be promoted and

delegated details to the Meat Marketing Board, which reported to the Secretary of

Agriculture. Department of Agriculture officials reviewed all promotional messages

for substance and for wording, and rejected or re-wrote some of the materials. They

also attended and participated in meetings where proposals were developed. This

intense govermnent involvement in crafting the message underpinned the Court's

conclusion that the govermnent itself was speaking. The opposite is true in this case,

where the Board took pains to disavow that it is expressing its views on historical

controversies through the Guide.

The facts alleged in the complaint and attached exhibits make this case similar

to Rosenberger, where the Supreme Court held that a university's withholding of

funding from a student organization did not constitute govermnent speech:

The distinction between the University's own favored

message and the private speech of students is evident in the
case before us. The University itself has taken steps to

31
 ensure the distinction in the agreement each [student
organization] must sign.... The University declares that
the student groups eligible for . . . support are not the
University's agents, are not subject toits control, and are
not its responsibility. Having offered to pay the third-party
contractors on behalf of private speakers who convey their
own messages, the University may not silence the
expression of selected viewpoints.

Rosenberger, supra, 515 U.S. at 834-35. Just as the University in Rosenberger

disclaimed responsibility for the speech of student organizations, the Board here

expressly distanced itself from the views of all materials included in the resource

section of the Guide. It further emphasized teaching multiple viewpoints and

encouraging critical thinking. The complaint more than adequately pleads facts

demonstrating that the resources included in the Guide are not the speech of the

Board of Education.

The Board's disclaimer, and the unrestricted availability of the Guide on the

Internet, distinguish this case from Downs, supra. In that case, a school bulletin

board was created in the school hallway and was subject to constant oversight by the

principal. It was dedicated to fostering tolerance and acceptance of gay and lesbian

students, pursuant to a board of education resolution encouraging such tolerance and

acceptance through "Gay and Lesbian awareness month." The efforts of a teacher to

post anti-gay materials were not protected by the First Amendment because the

32
bulletin boards constituted government speech, created and maintained to express the

school's point ofview. 16

The District Court also relied on the Fifth Circuit's analysis in Chiras v. Miller,

supra, for two propositions: first, that '''the selection and use of textbooks in the

public school classrooms constitutes government speech and therefore [] Hazelwood

[School District v. Kuhlmeier, 484 U.S. 260 (1988)] does not apply.'" (Dist. Ct. Op.

16Similarly distinguishable is this Court's recent decision in Sutliffe v. Epping

School District, _ F.3d _, 2009 WL 2973115 (1 st Cir., Sept. 17, 2009). In Sutliffe,
the plaintiff challenged exclusion of a link to his organization from a town's website,
claiming that the town's inclusion of a link to another organization required that they
open the website to his point of view. As in Downs, this Court relied on the town's
control over the message conveyed by its website, and its sponsorship of the event
which was the subject of the link the plaintiff complained of, to conclude that the
town was speaking through the website and through its selection of a link to another
event. The plaintiffs here are, as they have stressed, not complaining about decisions
made to exclude materials from the Guide, but only about a decision made, after
inclusion, to remove materials from the Guide despite their meeting the criteria the
defendants established for inclusion, and based only on viewpoint discrimination. In
contrast, this Court noted in Sutliffe, "By contrast to the approved link, plaintiffs'
website contained partisan political speech, a category to which the Town had
historically declined to provide hyperlinks regardless of the viewpoint expressed."
2009 WL 2973115 at p. * 14. This Court further noted that "there may be limits to
government speech doctrine, as to the criteria used when the government chooses to
provide hyperlinks to particular private speech and not other private speech." Id.
Unlike SutlifJe, in this case the government's stated policy, in the Guide and as
expressed by Ms. Wheltle, was to provide references to differing points of view on
controversial human rights issues, chosen on the basis of educational suitability.
Links to contra-genocide materials were chosen oU: that basis. They were removed
because the defendants, or rather the politicians who pressured their change of heart,
objected to the viewpoints expressed. Pica, rather than SutlifJe or Downs, governs
this case.
33
at 25, Add. 26, citing Chiras, supra, 432 F.3d at 616).17 The plaintiffs agree with this

proposition, but it has nothing to do with this case. They challenge the removal of

websites whose content is not endorsed or sponsored by the Board, and which are

listed only as optional, non-classroom resources, indistinguishable from books in a

school library.

The District Court also cited the Fifth Circuit's decision in Chiras, supra, for

the proposition that "Pico has no precedential value as to the application of First

Amendment principles [even] to [a] school's decision to remove [] books from a

library." (Dist. Ct. Op. at 27, Add. 28, citing id. at 619 n.32). Both the Fifth Circuit

and the District Court are incorrect, as demonstrated above. See Part II, supra. The

plaintiffs here are entitled to proceed to trial, because the well-pled allegations of the

complaint, together with the attached exhibits, create disputed questions of fact:

whether the materials listed in the resource section of the Guide are more akin to a

library than to classroom textbooks, and whether the removal of contra-genocide

materials was motivated by political disagreement with the ideas expressed rather

17The District Court also noted that Chiras concluded that, even if a First
Amendment "right to receive information" was established by Pico, it would not
extend to the selection of textbooks for classroom use. (Dist. Ct. Op. at 27, Add. 28).
This conclusion follows from the principal conclusion that textbook selection is
govermnent speech and therefore not subject to any First Amendment restrictions.
Again, textbook selection is not at issue in the instant case.
34
than educational suitability.

IV. STATUTE OF LIMITATIONS DOES NOT BAR THE CLAIM OF

PLAINTIFF ATAA.

The District Court concluded that the ATAA's claim is barred by the

Massachusetts three-year statute oflimitations for personal injury actions because the

alleged First Amendment violation began when the defendants excised educationally

suitable materials from the Guide in June 1999, and the ATAA was aware of the

def~ndants' actions at that time. (Dist. Ct. Op. at 13 n. 2, Add. 14)Y The District

Court erroneously rejected the plaintiffs' argument that the constitutional violation

is continuing, and hence the statute oflimitations did not run from the date on which

the contra-genocide materials were removed from the Guide.

The First Amendment violation alleged in the complaint is the excision of

educationally suitable materials for non-educational, political, or other illicit

motivations. That excision and the attendant First Amendment injury continue to this

very day, which makes this a continuing violation case for statute of limitations

purposes. Cf. New York Times Co. v. Us., 403 U.S. 713, 715 (l971)("every

moment's continuance of the injunctions against these newspapers amounts to a

180nly plaintiff ATAA was dismissed on statute oflimitations grounds. The

District Court's decision disputed in this section does not affect the individual
plaintiffs' claims.
35
flagrant, indefensible, and continuing violation ofthe First Amendment")(Black, J.,

concurring). In order to establish a continuing violation ofthe First Amendment, the

plaintiffs' complaint need only allege facts that indicate a violation of constitutional

rights that continued into the filing period. Alternatively, the plaintiffs may also

allege that an unconstitutional policy or practice existed within the limitations period.

See Muniz-Cabrera v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994)("To establish a

continuing violation, plaintiff must allege that a discriminatory act occurred or that

a discriminatory policy existed within the period prescribed by the statute"); and

Velazquez v. Chardon, 736 F.2d 831, 833 (1st Cir. 1984).

The plaintiffs' complaint alleges facts that satisfy both of these tests. As set

forth in the complaint, in June 1999, the defendants excised three web sites containing

contra-genocide bibliographical information. (Comp. ~ 27, App. A3l). In August

1999, the defendants excised a fourth website. On August 31, 1999, the defendants

asserted as a rationale for the excisions that they were constrained to do so by the

enabling statute. (Comp. ~ 30, App. A32-33). On June 27, 2005, in response to a

March 30, 2005 letter from plaintiffs' counsel requesting that the defendants restore

the Guide to its unexpurgated final version, the defendants reiterated this justification

and policy. (Comp. ~ 40 & Ex. 18, App. A37, A247). These facts establish an

ongoing policy and practice to excluding any contra-genocide materials from the

36
Guide. The complaint also alleges the additional fact that the expurgated version of

the Guide currently posted on the website of the Department of Education ("the

Department") remains in effect. (Comp. ~ 39, App. A36-37).19

Thus, the plaintiffs have alleged both a discriminatory act occurring within the

limitations period - an unconstitutionally motivated excision of educationally suitable

web sites - and the "application of a discriminatory policy or practice ... [that]

continues into the limitations period." Muniz-Cabrera, supra, 23 F.3d at 610. See

also Velazquez, supra, 736 F.2d at 833; Green v. Los Angeles County Superintendent

ofSchoo Is, 883 F.2d 1472, 1480 (9thCir. 1989)("a party who shows that a policy and

practice operated at least in part within the limitation period satisfies the filing

requirements')

ATAA's claims should not have been dismissed as outside the statute of

limitations.

CONCLUSION

For the reasons set forth above, the judgment of the District Court dismissing

the complaint for failure to state a claim and, as to ATAA, as barred by the statute of

limitations, should be reversed, and the matter should be remanded to proceed to

19 See also Compo ~ 53, App. A42 (alleging that the Defendants "singly and
collectively, have acted and continue to act" in violation ofthe First and Fourteenth
amendments).
37
discovery and, if necessary, to trial.

CERTIFICATE OF SERVICE

I, David Duncan, hereby certifY that two copies of the foregoing document was served, by
hand, on October 5, 2009, upon (1) William W. Porter, Esq., Counsel for Defendants, Office ofthe
Massachusetts Attorney General, One Ashburton Place, Room 2019, Boston, MA 02108 and (2) the
original and eight copies, together with a disc with a pdf copy, were filed with the Clerk of the First
Circuit Court of Appeals.

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitati of Fed. R. App. P. 32(a)(7)(B) and
32(a)(5) and (6) because it was prepared in a proportionally s ced typeface in 14-point Times
New Roman typeface, and contains 9,016 words, excluding the p s of the brief exempted by
Fed. R. App. P. 32(a)(7)(B)(iii), according to the word count of the rd processing system
(Wordperfect X3) used to prepare it.

David Duncan

38
ADDENDUM
 TABLE OF CONTENTS

Order of Dismissal .................................................. I

Memorandum and Order (Wolf, DJ.) ................................... 2

Bill Text HB3629 ofl997-1998 Session ............................... 32

Defendants' Motion to Dismiss ....................................... 33

 Case 1:05-cv-12147-MLW Document 64 Filed 0611512009 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

THEODORE GRISWOLD et al
Plaintiff CIVIL ACTION
NO. 05-12147-MLW

DAVID DRISCOLL et al
Defendant

ORDER OF DISMISSAL

WOLF. D.J.

In accordance with the Court's Memorandum and Order entered on June

10. 2009 allowing the defendants Motion to Dismiss, docket No. 12, it is hereby

ORDERED that the above-entitled action be and hereby is dismissed.

By the Court,

June 15, 2009 lsI Dennis O'Leary

Date Deputy Clerk

(dismiss.-endo.wpd -12198) . [odism.]

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 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 1 of 30

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

THEODORE GRISWOLD, ET AL.,

Plaintiffs,

v. C.A. No. 05-12147-MLW

DAVID P. DRISCOLL, ET AL.,

Defendants.

MEMORANDUM AND ORDER

WOLF, D.J. June 10, 2009

I. SUMMARY

In 1998, the Massachusetts Legislature directed the state

Board of Education (the "Board") to prepare and distribute to all

school districts an advisory CUrriculum Guide for teaching about

genocide and human rights. The Convention on the Prevention and

Punishment of the Crime of Genocide, which was adopted by the

United Nations in 1951, defines "genocide" as an effort intended to

"destroy, in whole or in part, a national, ethnic, racial, or

religious group" by killing members of the group or in other ways.

The act requiring the preparation of the Curriculum Guide expressly

provided that it could include materials concerning "the Armenian

genocide." 1998 Mass. Acts. 1154 (the "Act").

The Curriculum Guide as originally drafted pursuant to the

Legislature·' s direction included a section on the "Armenian

Genocide," that began, "[iJn the 1890's, and during world War I,

the Muslim Turkish Ottoman Empire destroyed large portions of its

Christian Armenian minority population." Massachusetts Guide to

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Choosing and Using Curricular Materials on Human Rights (Draft,

Jan. 15, 1999).

After the issuance of the draft Guide, a Turkish group urged

the Commissioner of Education to revise the Guide to include

references to sources supporting the viewpoint that the fate of the

Armenians did not result from a Turkish policy of genocide, but

rather from other factors, including an Armenian revolt in alliance

with Russia against the ottoman Empire. The parties refer to such

sources as "contra-genocide" materials. In response to this

request, the Commissioner added references to several contra-

genocide websites to the Guide which was filed with the Legislature

in March, 1999.

The inclusion of references to the contra-genocide websites in

the Guide prompted a strong response from the Armenian community

and its supporters. They urged then Governor Paul Cellucci to have

those references removed from the Guide. The Commissioner

subsequently removed the references to the contra-genocide websites

from the Guide in June, 1999.

In August, 1999, Turkish groups, including the Assembly of

Turkish American Associations (the "ATAA"). complained about the

removal of the contra-genocide websites. However. the Commissioner

did not restore the references to the contra-genocide websites.

Rather, he responded that the Legislature had encouraged the

inClusion in the Guide of materials concerning the "Armenian

genocide" and, he wrote, it would be inconsistent with that

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direction to include references that rej ected the idea that a

genocide had occurred. The Commissioner did, however, note that

the Guide was only advisory, school districts could develop their

own approaches to teaching about the matter in controversy, and the

Turkish community was free to advocate its viewpoint. The

Commissioner recommended that if the Turkish community wished to

pursue its concerns, it do so through "legislative channels."

Second Amended Complaint (the "Complaint" or "Comp.") ~30, Ex. 14.

In 2005, this case was filed pursuant to 42 U.S.C. §1983. The

plaintiffs are: three students, Theodore Griswold, Jennifer Wright,

and Daniel Glanz; their respective fathers and next friends, Thomas

Griswold, Raymond Wright, and Richard Glanz; two teachers William

Shechter and Lawrence Aaronson; and the ATAA. They have sued the

Massachusetts Board of Education, its former Chairman James A.

Peyser in his official capacity, the Massachusetts Department of

Education, and its former Commissioner David P. Driscoll in his

official capacity. The plaintiffs allege that the Board removed the

contra-genocide websites from the Curriculum Guide solely for

political, rather than educational, reasons. They contend that

this was unlaWful.

The defendants filed a motion to dismiss, which plaintiffs

opposed. Various interested groups filed amicus curiae briefs. A

hearing on the motion to dismiss was held.

For the reasons described in this Memorandum, the motion to

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dismiss is meritorious. In essence, public schools playa vital

role in preparing students for citizenship in our nation. Except

in limited circumstances, decisions concerning what should be

taught must be made by state and local school boards rather than by

federal judges.

Public officials may not establish educational policies

tailored to the tenets of a religious group. Nor may they compel

students to profess a prescribed belief, or limit their right to

express themselves in school unless the restriction is reasonably

related to a legitimate educational purpose. However, none of

these concerns are implicated in this case.

Public officials have the right to recommend, or even require,

the curriculum that will be taught in public school classrooms.

Doing so is a form of government speech, which is not generally

subject to First Amendment scrutiny. There is no requirement that

such government speech be balanced or viewpoint neutral. Rather,

public officials generally have the right to decide what should be

taught in the effort to prepare students for citizenship.

Plaintiffs do not assert that they initially had a right to

have contra-genocide references included in the Curriculum Guide.

However, they argue that once those materials were added they could

not be removed solely for political, rather than pedagogical,

reasons, as they allege occurred in this case.

This contention, however, is not correct. Public officials

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are generally entitled to change their minds about what is

recommended or required to be taught in public school classrooms.

The Supreme Court's resolution of Board of Education v. Pico, 457

U.S. 853 (1982), on which plaintiffs rely, is not inconsistent with

this conclusion. In Pico, five Justices voted to remand for

further factual development a case in which plaintiffs claimed that

controversial books were removed from the school for purely

political or partisan reasons. However, no opinion commanded five

votes and, therefore, Pico is not binding precedent even on the

question of whether books can be removed from a school library for

political reasons. Moreover, the four Justices who expressed the

view that removing books from a library for political or partisan

reasons would violate the First Amendment made a sharp distinction

between what is available as optional reading in a library and what

is taught in the classroom, where, they recognized, public

officials could prescribe the curriculum. Since pico was decided

in 1982, the Supreme Court has explicitly held that when the state

is the speaker it can decide the content of its message, and has

stated that the curriculum of public schools is a fully protected

form of state speech. See Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U.S. 819, 833 (1995).

It appears that reference to the contra-genocide websites was

added to the Curriculum Guide because of concerns expressed by the

Turkish community. Viewed in the light most favorable to

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 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 6 of 30

plaintiffs for the purpose of deciding the motion to dismiss, the

court assumes that those references were later removed in response

to "political pressure" that the Armenian community put on elected

and appointed officials. This, however, is not unlawful.

Politics is not a pejorative term in our nation. properly

understood, politics is the essence of democracy. It is the way

that a free and vigorous people make and then change public policy.

with regard to what will be taught in public sChool classrooms, we

rely on the power of the people to elect and, if they wish, change

their representatives as the means to hold them accountable for

decisions concerning the content of the curriculum. Except in

limited circumstances not at issue here, this is not a role to be

performed by United States judges in our federal form of

government.

The facts of this case demonstrate that the plaintiffs and

those who share their viewpoint concerning Armenians in the Ottoman

Empire are fully capable of participating in the political process.

It is in the political arena that they must seek the relief to

which they are not entitled in federal court.

II. STANDARD

Where, as here, defendants move to dismiss under Federal Rule

of Civil Procedure ~2 (b) (6), the court must "take all factual

allegations as true and [) draw all reasonable inferences in favor

of the plaintiff. "Rodriguez-ortiz v. Margo Caribe, Inc., 490 F. 3d

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92, 96 (1st Cir. 2007). The court must "neither weigh [] the

evidence nor ruler] on the merits because the issue is not whether

the plaintiffs will ultimately prevail, but whether they are

entitled to offer evidence to support their claims." Day v. Fallon

Cmty. Health Plan, Inc., 917 F. Supp. 72, 75 (D. Mass. 1996). A

motion to dismiss should be denied if a plaintiff has shown "a

plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550

U.S. 544, 559 (2007); ~ also Morales-Tanon v. P.R. Elec. Power

Auth., 524 F.3d 15, 18 (1st Cir. 2008) (applying the Bell Atl.

standard to a §1983 claim). Therefore, "[t] 0 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) (emphasis

added) .

Ordinarily, a court will not consider documents outside of the

pleadings in a motion to dismiss. Watterson v. Page, 987 F.2d 1,

3 (1st Cir. 1993). From this rule, the First Circuit makes a

"narrow exception for documents the authenticity of which are not

disputed by the parties; for Official public records; for documents

central to plaintiff's claim; or for documents sufficiently

referred to in the complaint." Id. at 3 -4; see also Beddal v. State

St. Bank and Trust, Co., 137 F.3d 12, 16-17 (1st Cir. 1998) (When

"a complaint's factual allegations are expressly linked to-and

admittedly dependent upon-a document (the authenticity of which is

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not challenged), that document effectively merges into the

pleadings and the trial court can review it in deciding a motion to

dismiss under Rule 12(b) (6).").

Application of these principles to the Complaint and the

exhibits attached to it persuades the court that the motion to

dismiss is meritorious because even if the alleged facts are true,

plaintiffs' constitutional rights have not been violated.

III. FACTS

The following facts are alleged in the Complaint and accepted

as true. The Board drafted the Massachusetts Guide to Choosing and

Using Curriculum Materials on Genocide and Human Rights Issues (the

"Curriculum Guide") pursuant to Chapter 276 of the Acts and

Resolves of 1998 of the General Court of Massachusetts. 1998 Mass.

Acts 1154. The Act required the Board to "formulate recommendations

on Curriculum materials on genocide and human rights issues, and

guidelines for the teaching of such material." The Act specifically

identified the "Armenian' genocide" as a topic that might be

included in the recommended curriculum. It required that the

recommendations be "available to all school districts in the

Commonwealth on an advisory basis." rd. The Act also directed the

Board to file the Curriculum Guide with the Massachusetts

Legislature no later than March 1, 1999. '

'The Act states that:

The board of education shall formulate recommendations on

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Pursuant to the Act, in January, 1995, Commissioner Driscoll

circulated a draft version of the Curriculum Guide which included

references to the "Armenian genocide" or "Armenian genocides. n

After reviewing the draft, the Turkish American CUltural Society of

New England ("TACS-NE") wrote to Driscoll asking that the

Curriculum Guide be revised to include references to sources for

the viewpoint that the fate of the Armenians did not result from a

Turkish policy of gen?cide, but rather from a number of other

factors including an Armenian revolt in alliance with Russia

against the Ottoman Empire. As indicated earlier, this viewpoint

is referred to as the "contra-genocide thesis." Representatives of

TACS-NE subsequently made a presentation to the Board, again urging

inclusion of contra-genocide materials in the CUrriculum Guide.

Driscoll asked TACS-NE to propose particular contra-genocide

Curriculum 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
Curriculum 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. 1998 Mass.
Acts 1154 (emphasis added) :

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material for "p6ssible inclusion in the Curriculum Guide. Driscoll

also referred TACS-NE to a Department of Education employee, who

searched for a bibliography of contra-genocide materials. That

process produced a list of recommendations including four contra-

genocide websites. Though the Board did not vote to alter the

Curriculum Guide, in March, 1999, Driscoll submitted to the

Legislature a version of the Curriculum Guide that included the

four contra-genocide websites.

After the curriculum Guide was filed with the Legislature, a

committee of Armenian citizens wrote to then Governor Cellucci and

urged that the references to contra-genocide websites be removed

from the Guide. They asserted that the websites denied the Armenian

genocide and, therefore, the inclusion of them was contrary to the

purposes of the Act. Following these letters, in June, 1999,

Driscoll removed the reference to the contra-genocide websites from

the Curriculum Guide. Plaintiffs allege that Driscoll acted solely

in response to political pressure from Armenian groups, Governor

Cellucci, and other politicians. They assert that the excision was

not influenced at all by educational concerns.

On August 10, 1999, a member of the ATAA board of directors

wrote to Driscoll to protest the removal of the contra-genocide

websites from the Guide. TACS-NE sent a similar letter. In

response to the member of the ATAA board, Driscoll and defendant

Board Chairman Peyser sent a letter stating that:

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[sJince the legislative intent of the statute was to address

the Armenian genocide and not to debate whether or not this
occurred, the Board and Department of Education cannot
knowingly include resources that call this into question. The
explicitness of the statute has also forced us to reverse our
earlier decision to include the website listing for the
Turkish Embassy.

Six years later, on June 27, 2005, Peyser reiterated this

position in a letter to plaintiffs' attorneys, stating that, "[w1e

do not ... interpret Chapter 276 <is authorizing the Board to adopt

curriculum guidelines that call into question whether the

atrocities enumerated in the statute actually occurred."

After the removal of the contra-genocide websites from the

Curriculum Guide, an Armenian group publicly claimed that its

political efforts prompted this excision.

The student plaintiffs allege that because of the actions of

the defendants they "may have been denied the opportunity to

recei ve contra-genocide viewpoints in school that they believe were

necessary to enable Theodore [Griswold] to arrive at an informed

understanding of the historical events in question," Compo ~44, or

that Jennifer wright and Daniel Glanz "may be denied" that

opportunity. id. ~44a and 44b. The teacher plaintiffs allege that

"the Defendants' excision, for political reasons, of the contra-

genocide materials that they themselves determined were

educationally suitable infringes upon the federal constitutional

rights of teachers and students to inquire, teach and learn free

from viewpoint discrimination unrelated to educational

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suitability." Id. '146. The ATAA states that it is "concerned that.

this censorship prejudices Turkish Americans in general and stunts

education by suppressing educationally suitable materials that were

initially selected for inclusion by the Department's educational

experts but then excised under political pressure". Id. ,49.

IV. THRESHOLD ISSUES

Defendants contend that this case should be dismissed because

the plaintiffs each lack standing. They also contend that it is

barred by the three-year statute of limitations that applies to

cases brought in Massachusetts pursuant to §1983. See Centro Medico

del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.

2005) (because §1983 does not include a statute of limitations, the

court must use the forum state's general statute of limitations for

personal injury actions) ; M.G.L. c. 260, §2A (establishing a three-

year statute of limitations for personal injury actions in

Massachusetts) .

ordinarily, this court would decide these threshOld questions

before considering the merits of plaintiffs' constitutional claims

in order to avoid deciding a constitutional issue unnecessarily.

See Ashwander v. Tenn. valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J" concurring); Nieves-Marquez v. Puerto Rico, 353 F.3d

lOB, 123 (1st Cir. 2003). However, this case cannot be fully

resolved based on the motion to dismiss without a thorough

consideration of whether the individual plaintiffs have alleged a

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constitutional claim on which relief can be granted.

For §1983 actions, the three-year statute . of limitations

begins to run "when the plaintiff knows, or has reason to know, of

the injury on which the action is based." Rivera-Muriente v.

Agosto-Alicea, 959 F.2d 349, 353 (1st Cir. 1992). Only "when the

pleader's allegations leave no doubt that an asserted claim is

time-barred" may the court dismiss a case on that basis.

LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.

199B). In this case, it is not clear from the Complaint when each

of the individual plaintiffs had reason to know of the alleged

injury to them. Therefore, their claims cannot now be dismissed

based on the statute of limitations.'

'It is clear from the Complaint that plaintiff ATAA knew in

August, 1999, of the removal of the contra-genocide websites from
the Curriculum Guide and, therefore, of the alleged injury to it
because one of its board members wrote to Driscoll to complain
about the removal. See Compo ~28. Therefore, because this case
was filed in 2005, six years later, ATAA's claims are barred by
the three-year statute of limitations.

Contrary to the ATAA's contention, this case does not

involve an alleged continuing violation of constitutional rights
that extends the statute of limitations. Chairman Peyser's 2005
letter to plaintiffs' attorney reiterating the board's
explanation for the 1999 removal of the contra-genocide websites
. from the CUrriculum Guide was essentially a refusal to remedy the
effects of an alleged earlier constitutional violation and,
therefore is not independently actionable as part of a serial
violation. See, e.g., De Leon Otero V. Rubero, 820 F.2d 18, 20
(1st Cir. 1987) (holding, in an employment discrimination case,
that later refusals to reinstate the plaintiff did not create a
continuing violation, but were "a consequence of his initial
demotion") .

Similarly, the ATAA has identified no ongoing policy that

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To establish the required standing each individual plaintiff

must show "that [he] ha [s] suffered an 'injury in fact' - an

invasion of a judicially cognizable interest . . " Be=ett v.

Spear, 520 U.S. 154, 167 (1997) (citing Lujan v. Defenders of

wildlife, 504 U.S. 555, 560 (1992». "For the purposes of ruling

on a motion to dismiss for want of standing. [] the trial .

court [] must accept as true all material allegations of the

complaint, and must construe the complaint in favor of the

complaining party." Warth v. Seldin, 422 U.S. 490, 501 (1975).

Accordingly, for the purposes of determining issues of standing

"deciding 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." Erwin Chemerinsky,

Federal Jurisdiction 71 (5th ed. 2007) (Citing Laird v. Tatum, 408

u.s. 1 (1972); Meese v. Keene, 481 U.S. 465 (1987». This is such

a case. 3

would constitute a systemic violation. As with serial violations,

a plaintiff seeking to establish a systemic violation must allege
more than the lingering effects of a past violation. See Muniz-
Cabrero v. Ruiz, 23 F.3d 607, 611 (1st Cir. 1994) (holding, in an
employment discrimination case, that the continued employment of
the plaintiff's rival in a position previously held by the
plaintiff did not constitute a systemic violation) . Only a
violation in 1999 is alleged by the ATAA in this case.

3The analysis required to decide whether an organization

like the ATAA has standing is more complicated than the analysis
necessary to determine individual standing. See Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National
wildlife Federation, 497 U.S. 871, 891 (1990); Citizens to End
Animal Suffering and Exploitation v. The New England Aquarium,

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Therefore, the court has examined whether the individual

plaintiffs have alleged a constitutional claim on which relief can

be granted. For the reasons described in §V,infra, they have not.

Thus, the motion to dismiss with regard to the individual

plaintiffs is being allowed both on the merits and because they

lack standing to maintain their case.

V. ANALYSIS

Plaintiffs claim that the removal of the references to the

contra-genocide websites from the CUrriculum Guide was solely a

response to political pressure, is analogous to the removal of

books from school libraries in Pico, and violated their First

Amendment rights. Plaintiffs also at times have asserted that the

excision of those materials violates a right that they have "to

inquire and learn free from viewpoint discrimination unrelated to

educational suitability." PIs. opp'n to Mot. to Dismiss at 17.

However, this theory was not argued by plaintiffs at the hearing on

the motion to dismiss. In· any event, neither of plaintiffs'

contentions is correct.

AS indicated earlier and explained below, the Curriculum Guide

is a form of government speech. As such, it is generally exempt

from First Amendment scrutiny. There are 'exceptions to this

836 F.Supp. 45, 50-58 (D. Mass. 1993). It is, however,

unnecessary to perform that analysis concerning the ATM. Its
claims are time-barred and, in any event, are unmeritorious for
the reasons described in §5, infra, concerning the individual
plaintiffs' claims.

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general rule. However, none are applicable to the instant case.

Contrary to plaintiff's contention,this case is not analogous to

Pico, in which four Justices of the Supreme Court expressed the

view that books could not lawfully be removed from a public school

library solely because of political pressure. Indeed, in Pica the

plurality emphasized the distinction between books in a school

library and curriculum. Since Pica was decided, the Supreme Court

has referred to decisions concerning curriculum as exempt from

First Amendment scrutiny. In the circumstances of this case the

decision as to what to teach about the events that the Act and the

Curriculum Guide characterize as the Armenian genocide must be made

by elected officials, educators, and teachers rather than by

federal judges.

The reasons that defendants are entitled to prevail in this

case are rooted in first principles concerning the separation of

powers in our federal form of government. As the Supreme Court has

repeatedly written, "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. '" Pico, 457 U.S .. at

864 (quoting Ambach V. Norwick, 441 U.S. 68, 76-77 (1979».

n, [Plublic education in our Nation is committed to the control of

state and local authorities. '" Id. (quoting Tinker v. Des Moines

Sch. Dist., 393 U.S. 503, 507 (1969». Therefore, state and,

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particularly, local school boards, "have broad discretion in the

management of school affairs." Id. at 863; §.§§ also, Chiras v.

Miller, 432 F.3d 606, 611 (5th Cir. 2005). Accordingly, federal

courts should not "intervene in the resolution of conflicts which

arise in the daily operation of school systems and which do not

directly and sharply implicate basic constitutional values. n

Epperson v. Arkansas, 393 U.S. 97, 104 (1968); see also Pica, 457

U.S. at 864; Chiras, 432 F.3d at 611.

There are circumstances in which it is necessary and proper

for federal courts to prohibit or reverse action by state or local

officials concerning public schools because the conduct at issue

violates the First Amendment. However, no such circumstances are

alleged in this case.

For example, a state law prohibiting the teaching of evolution

in public schools was held to be unconstitutional because "the

First Amendment does not permit the State to require that teaching

and learning must be tailored to the principles or prohibitions of

any religious sect or dogma It forbids alike the

preference of a religious doctrine or the prohibition of theory

which is deemed antagonistic to a particular dogma. '" Epperson, 393

U.S. at 106-07. However, as confirmed at the hearing on the

motion to dismiss, plaintiffs do not allege that the removal of the

reference to contra-genocide websites from the CUrriculum Guide was

religiously motivated or violates the religion clauses of the First

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Amendment. See Sept. 18, 2006 Tr. at 73.

Similarly, the First Amendment protects students from being

compelled by law to speak in any particular way, including being

required to recite the Pledge of Allegiance to the American flag.

See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1%3).

However, the Curriculum Guide requires neither students nor

teachers to engage in any speech. Rather, local school boards can

choose whether to adopt the Curriculum Guide. The Complaint does

not suggest that any of the plaintiff teachers have been compelled

to instruct only in accordance with it. See, e.g., Compo 145-48.

The First Amendment also protects students against

restrictions on their right to speak in school unless it is shown

that the prohibited speech or expressive conduct would n'materially

and substantially interfere with the requirements of appropriate

discipline in the operation of the school.' n Tinker, 393 U.S. at

505 (quoting BUrnside v. Byars, 363 F.2d 744, 749 "(5th Cir.

1966». However, it is not alleged that the Curriculum Guide in

any way restricts the plaintiff students right to speak. ~ Compo

,,44, 44a, 44b.

A state or local school board has a greater right to restrict

speech by a teacher, who is one of its representatives, if the

teacher's statements are contrary to the lessons that it has

decided students should be taught or is otherwise inappropriate.

See Conward v. Cambridge Sch. Comm. 171 F.3d 12, 23 (1st Cir.

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1999). As the First Circuit has written: "[Al teacher's classroom

speech is part of the curriculum. Indeed, a teacher's principal

classroom role is to teach students the school curriculum. Thus,

schools may reasonably limit teachers' speech in that setting."

Ward v. Hickey, 996 F. 2d 448, 453 (1st Cir. 1993); ~ also Downs

v. Los Angeles United 8ch. Dist. , 228 F.3d 1003, 1014 (9th Cir.

2000). However, in this case there is no allegation that any

plaintiff teacher has been prohibited from teaching as he wishes

about the fate of the Armenians in the ottoman Empire. See Compo

"45-49.

Nor is it alleged that either the student or teacher

plaintiffs has been denied access in school to the contra-genocide

websites that were removed from the Curriculum Guide or comparable

information. Plaintiff Thomas Griswold only alleges that his son

"may have been denied the opportunity to receive contra-genocide

viewpoints in school " Comp. '44. The other parent

plaintiffs only allege that their children "may be denied the

opportunity to receive contra-genocide view points in school. "

Compo ~'44a, 44b. Failing to include the websites among materials

which may be presented to students is not tantamount to restricting

access to them. Therefore, the plaintiffs do not even allege an

actual violation of any purported right to receive information in

the classroom.

Moreover, in the circumstances of this case, plaintiffs do not

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 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 20 of 30

have a right to receive contra-genocide infarmation in the

classroom. At issue here is only an advisory curriculum Guide. It

was created as a result of an Act that required defendants to

include materials concerning the "Armenian genocide." 1998 Mass.

Acts 1154. The Act required distribution of the CUrriculum Guide to

all school districts an an "advisory basis." Id. In this fashion

the state decided what message it recommended be communicated ta

students as part of a human rights curriculum. Therefare, the

Curriculum Guide, promulgated pursuant to and consistent with the

Act, is a form of government speech. See Rosenberger, 515 U.S. at

833; Chiras, 432 F.3d at 614.

Generally, "the Government's own speech [] is exempt from

First Amendment scrutiny." Johanns v. Livestock Mktg. Ass'n, 544

U.S. 550, 553 (2005) (generic advertising funded by targeted

assessment on beef producers was government speech not subject to

First Amendment challenge as a compelled subsidy). Therefore, it

has, for example, been held that the government may prohibit the

recipients of federal funds from giving advice on family planning.

See Rust v. Sullivan, 500 V.S. 173, 192-200 (1991). "[I]ndividuals

generally have no constitutional right to challenge

gavernment speech under the Free Speech Clause." Summum v.

pleasant Grove City, 499 F.3d 1170, 1181 (lOth Cir. 2007).

The Supreme Court has held that decisions concerning

curriculum are a form .of government speech and lower courts have

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21
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recognized this. In Rosenberger, the Supreme Court stated:

the principle that when the State is the speaker, it may

make content-based choices. When the [state] 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 .

515 U. S. at 833. Similarly, the Fifth Circuit has written that

"when the [State Board of Education) 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." Chiras, 432 F. 3d at 614. "The government undoubtedly has

the authority to control its own message when it speaks or

advocates a position it believes is in the public interest." Id. at

612. The First Circuit too has stated that the Supreme Court

precedents do "not require that school regulation of school

sponsored speech be viewpoint neutral." Ward, 996 F. 2d at 454; §.§

also Fleming v. Jefferson County Sch. Dist., 29B F.3d 918, 934

(10th Cir. 2002) (the Supreme Court does not require educator's

restrictions on school supervised speech to be viewpoint neutral) .

Plaintiffs seek to escape the consequences of the general

principle that government speech is immune from First Amendment

scrutiny by emphasizing that the instant case allegedly involves

the removal of contra-genocide materials from the Curriculum Guide

as a result of political pressure. They assert that this case is

analogous to Pico and, therefore, that they have stated a valid

claim. Plaintiffs' reliance onPico is, however, unpersuasive for

21

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 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 22 of 30

several reasons.

In Pico, in response to complaints from "a politically

conservative organization of parents," a local school board removed

nine books from a high school library and another from a junior

high school library. 457 U.s. at 856-57. The school board described

_ the books as U 'anti-American, anti-Christian, and anti-sem[iJ tic,

and just plain filthy,' and concluded that' lilt is our duty, our

moral obligation, to protect the children in our schools from this

moral danger as surely as from physical and medical dangers. '" Id.

at 857 (alterations in original) (quoting pico v. Bd. of Educ., 474

F.Supp. 387, 390 (E.D.N.Y. 1979». The school board appointed a

committee to review the books and to report which of them should be

retained as educationally suitable. Id. at 857-58. However, the

school board substantially rejected the committee's recommendations

without explanation, and eliminated nearly all of the books at

issue. Id. at 858. The Second Circuit reversed the district court's

decision that granted summary judgment for the defendants and

uphel~ the removal of the books. See pico v. Bd. of Educ., 638

F.2d 404 (2d Cir. i980).

In a fractured decision in which no opinion commanded a

majority, five members of the Supreme Court voted to remand the

case for further development of the facts concerning whether the

removal of the books was motivated by a political or partisan

desire to deny students access to certain ideas. Pico, 457 U.S. at

22

23
 Case 1:05-cv-12147 -MLW Document 63 Filed 0611012009 Page 23 of 30

870. Four of the Justices expressed the view that if the decision

to remOVe the books was purely political, it was unlawful. See id.

at 854-75 {Brennan, J., joined by Marshall, J., and Stevens, J.l

and 875-82 (Blackmun, J.) However, the crucial fifth vote was

provided by Justice Byron White, who reasoned that it was

inappropriate to decide whether a purely political motive for the

removal of the books w01,lld be unconstitutional unless and until

such a motive for ,the removal was proven at trial on remand. Id.

at 883-84. In Justice White's view, pico posed "difficult First

Amendment issues in a largely uncharted field." Id. at 884. Four

members of the Court dissented. Id. at 885-97 (Burger, C.J.,

Powell, J., Rehnquist, J., and O'Connor, J., dissenting).

In writing for himself and Justices Thurgood Marshall and John

Paul Stevens, Justice William Brennan found that "the right to

receive ideas is a necessary predicate to the recipient'S

meaningful exercise of his own rights of speech, press, and

political freedom." Id. at 867 (emphasis in original). Justice

Brennan particularly emphasized "the unique role of the school

library." Id. at 869. He expressly noted that:

Respondents do not seek in this Court to impose

limitations upon their school Board's discretion to
prescribe the curricula of the [town's] schools. On the
contrary, the only books at issue in this case are
library books, books that by their nature are optional
rather than required reading.

Id. at 862 (emphasis in original). Reiterating the disti~ction

that he made between the library and the classroom, Justice Brennan

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went on to state:

Petitioners might well defend their claim of absolute

discretion in matters of curriculum by reliance ·upon
their duty to inculcate community values. But we think
that petitioners' reliance upon that duty is misplaced
where, as here, they attempt to extend their claim of
absolute discretion beyond the compulsory environment of
the classroom, into the school library and the regime of
voluntary inquiry that there holds sway.

Id. at 869 (emphasis in original) .

Justice Blackmun concurred in part and concurred in the

judgment. Id. at 875. He, however, wrote that , "I do not suggest

that the state has any affirmative obligation to provide students

with information or ideas, something that may well be associated

with a 'right to receive.'" Id. at 878. He found, however, that

"the State may not act to deny access to an idea simply because

state officials disapprove of that idea for partisan or political

reasons. " Id. at 879. Nevertheless, Justice Blackmun added that,

" [aJ s a practical matter [] it 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." Id. at 878 n.l.

The Fifth Circuit's reasoning in Chiras concerning pico and

other issues is instructive in the instant case. chiras involved

a textbook on environmental issues recommended by a state

commissioner of Education for use in public schools which was

rejected by the State Board of Education after "conservative think-

tank organizations" requested and. received a reopening of. the

period for public comment. 432 F.3d at 609-10.

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 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 25 of 30

The author of the rejected textbook persuaded the district

court that the conduct at issue was subject to the limited public

forum analysis articulated by the Supreme Court in Hazelwood School

Disrict. v. Kuhleinen, 484 U.S. 260 (1988). In Hazelwood, the

Supreme Court held that a student newspaper was a non-public forum

and, therefore, educators could only restrict the students' speech

in the newspaper for reasons reasonably related to legitimate

pedagogical concerns. Id. at 273. The Fifth Circuit, however,

rejected the contention that the actions at issue were subject to

Hazelwood analysis, finding instead that "the selection and use of

textbooks in the public school classrooms constitutes government

speech and therefore [] Hazelwood does not apply." rd. at 616

(citing Downs, 228 F.3d at 1012).

As indicated earlier, the First Circuit has interpreted

Hazelwood the same way, writing that "the Court in [Hazelwood] did

not require that school regulation of school-sponsored speech be

viewpoint neutral." Ward, 996 F. 2d at 454. The First' Circuit has

characterized pico as a case which, although decided earlier, was

in effect subject to the Hazelwood forum analysis. See Student

Gov't Ass'n v. Bd. of Trustees of Univ. of Mass .., 868 F.2d 473, 480

(1st Cir. 1989) pico is a case involving "cha=els of

communication ( ... school libraries) to which forum analysis is

applicable. "). As explained earlier, however, the First Circuit

has recognized that the principle applicable to a limited public'

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 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 26 of 30

. forum that requires justification for a departure from viewpoint

neutrality does not apply to school sponsored speech. See Ward, 996

F.2d at 454. Curriculum is an integral part of such speech. See

Rosenberger, 515 U.S. at 833.'

In Chiras, the Fifth Circuit went on to consider the

implications of pico for the claim that the students had a right to

receive the information in the banned textbook. 432 F.3d at 619-

21. The Fifth Circuit noted that, as described earlier, a majority

4At the hearing on the motion to dismiss, plaintiffs briefly

mentioned the delegated editorial authority doctrine as a basis
for the relief they are seeking. See Sept. 18,2006 Tr. at 103.
As the First Circuit explained in Student Government Association,
in cases involving a channel of communication, including the
library in Pico, a limited public forum analysis is required.
868 F.2d at 480. A student newspaper is a paradigmatic example
of such a channel of communication. Id. (citing cases). In such
cases, "[h]aving delegated discretionary editorial functions to a
subordinate body, the state is not permitted to revoke that
delegation merely because it objects to the content of any
specific decision clearly within the editorial authority of the
sUbordinate body." Id. This rule is part of the limited public
forum doctrine, which provides that "[oJnce the state has created
.a forum, it may not condition access to the forum on the content
of the message to be communicated, or close the forum solely
,because it disagrees with the messages being communicated in it."
Id.

The delegated editorial authority doctrine does not apply in

the instant case. As described above, the Curriculum Guide is
not a channel for the communication of others. Rather, it is
state speech. See Rosenberger, 515 U.S. at 833; Chiras, 432 F.3d
at 614. Moreover, even if the Curriculum Guide were somehow
properly regarded as a limited public forum, the decision to
include contra-genocide materials in the Curriculum Guide was not
"clearly within the editorial authority" of the Board. Student
Gov't Ass'n, 868 F.2d at 480. The Act suggested that the Guide
include recommended curricula material concerning "the Armenian
genocide." The removed contra-genocide websites are, at least
arguably, inconsistent with this mandate.

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of the Justices in Pica did not join a single opinion and only

three endorsed the concept of a possible right to receive

information. Id. at 619 n.32. Therefore, it correctly stated that

"Pica has no precedent.ial value as t.o the applicat.ion of First

Amendment principles [even] to [a] school's decision to remove []

books from the library." rd. (citing pico, 457 U.S. at 886 n.2

(Burger, C.J., dissenting)).

In addition, noting the distinctions between the library and

the classroom recognized in the opinions contributing to t.he

plurality of Justices Brennan and Blackmun, the Fifth Circuit

emphasized that in Pica:

the Court carefUlly circumscribed [the] potential right

[to receive ideas] , acknowledging that the case "does not
involve textbooks" and that the Court's conclusion "does
not intrude into the classroom, or into the compulsory
courses taught there." Indeed, the Court readily admitted
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."

rd. at 619 (quoting Pico, 457 U.S. at 869) (emphasis in original).

"Because Pica addressed the removal of an optional book from the

school library, not the selection of a textbook for use in the

classroom, [the Fifth Circuit] decline [d] to apply Pico to the

facts before [it]." Id. Thus, the Fifth Circuit concluded that,

"even assuming that public school student.s possess a cognizable

right to receive information, that right does not extend to the

selection of textbooks for USe in the classroom." Id. at. 620.

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 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 28 of 30

This reasoning is persuasive and equally applicable to the contra-

genocide websites removed from the curriculum Guide even if, as

plaintiffs allege, the decision to remove them was solely the

result of political pressure.

This conclusion is reinforced by the fact that pico was

decided in 1982, thirteen years before the Supreme Court in 1995

wrote in Rosenberger, that when the state "determines the content

of the education it provides, it is the [state] speaking and we

have permitted the government to regUlate the content of what is or

is not expressed when it is the speaker." 515 U. S. at 833. The

Supreme Court reiterated that when the government is speaking as to

matters of curriculum, its choices are generally immune from First

Amendment challenge in its 1998 decision in Arkansas Educational

Television Commission v.· Forbes, 523 U.S. 666, 674 (1998). In

Forbes, the Court upheld the right of a government owned television

station to limit a public debate to candidates from major parties,

explaining that:

Much like a university selecting a commencement speaker

. or a public school prescribing its curriculum, a
broadcaster by its nature will facilitate the expression
of some viewpoints instead of others. Were the judiciary
to require, and so to define and approve, preestablished
criteria for access, it would risk implicating the courts
in judgments that should be left to the exercise of . . .
discretion.

Id. at 674. (emphasis added).

AS described earlier, the Supreme Court has repeatedly

emphasized that decisions concerning the content of public

2&

29
 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 29 of 30

education are, except in limited circumstances not applicable here,

to be left to the exercise of discretion by state and local

officials rather than made by federal judges. See Pico, 457 U.S. at

864; Tinker, 393 U.S. at 507; Ambach, 441 U.S. at 76-77. As also

described earlier, decisions concerning curriculum are a form of

government speech which is generally immune from First Amendment

scrutiny by the courts. See Rosenberger, 515 U.S. at 833; Chiras,

432 F.3d at 614. This does not mean, however, that such decisions

are not subject to review or that the decision makers cannot be

held accountable for them. Rather:

[tl he latitude which may exist where the

government's own message is being delivered flows in part
from [the Supreme Court's] observation that 'when the
government speaks . . . to advance a particular idea, it
is, in the end, accountable to the electorate and the
political process for its advocacy. If the citizenry
objects, newly elected officials later could espouse some
different or contrary position.

Legal Services Corp. v. Velazquez, 531 U.S. 533, 541-42 (2001)

(quoting, Ed. of Regents of Univ. of Wis. Sys. v. Southworth, 529

U.S. 217, 235 (2000)).

Plaintiffs allege that the removal of the contra-genocide

websites from the CUrriculum Guide was unlawful because it was

solely a response to political pressure. However, at least with

regard to curriculum, even if the decision was based only on

political rather than educational considerations, the decision was

permissible.

The Complaint and attached exhibits demonstrate that

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 Case 1:05-cv-12147-MLW Document 63 Filed 06/10/2009 Page 30 of 30

plaintiffs and those who share their viewpoint concerning the

treatment of Armenians in the Ottoman Empire are capable of

participating fully in the political process, which provides the

opportunity to petition the government to alter its policies. The

efforts of the ATAA and the others who share its viewpoint

evidently caused the inclusion of contra-genocide materials in the

Curriculum Guide for a period of time. If plaintiffs still want

those materials included in the Curriculum Guide, they will have to

resume their efforts to prevail in the political arena because they

are not entitled to relief in federal court.

VI. ORDER

Accordingly, it is hereby ORDERED that the Defendant's Motion

to Dismiss (Docket No. 12) is ALLOWED and this case is hereby

DISMISSED.

30

31
Bill Text for HB3629 of1997-1998 Session
Petition of Steven A. Tolman, Kevin G. Honan, et al. Relating to the instruction of the
Great Hunger Period in Ireland, the Armenian Genocide and the Holocaust.
Prime sponsor: Steven Tolman

Legislator Page I Google News Search I Google Internet Search

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Bill Number: MA97RHB 3629

Filed: 121 4/96 Author: Tolman, S.

The Commonwealth of Massachusetts

In the Year One Thousand Nine Hundred and Ninety-Seven.

AN ACT RELATIVE TO THE INSTRUCTION OF THE GREAT HUNGER PERIOD IN IRELAND, THE
ARMENIAN GENOCIDE AND THE HOLOCAUST. Be it enacted by the Senate and House of
Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 69, Section 10 of the General Laws is hereby amended by inserting after the
second sentence of the third paragraph, "The standards must provide for instruction in the Great Hunger
Period in Ireland from 1845-1850, the Armenian Genocide from 1915-1923 and the Holocaust of 1933-
1945."

32
 UNITED STATES DISTRICT COURT
DISTRICT OF MASSAaIUSETTS

)
THEODORE GRISWOLD, et aI., )
)
Plaintiffs, )
)
v. ) C.A. No. 05-CA-12147-MLW
)
DAVID P. DRISCOLL, Commissioner of )
Education, et a!., )
)
Defendants. )
)

DEFENDANTS' MOTION TO DISMISS

Defendants David P. Driscoll, Commissioner of Education, James A. Peyser, Chairman,

Massachusetts Board of Education, and the Massachusetts Board of Education move to dismiss

the complaint with prejudice under Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. In support of

their motion, the defendants rely upon their accompanying memorandum of law and state the

following:

1. The complaint is time-barred. The plaintiffs allege that decisions made by the

defendants in 1999 violated rights they assert under the Free Speech Clause of fue First

Amendment to the Constitution. Since the plaintiffs seek to bring a claim under 42 U.S.C.

§ 1983, they had to sue within the three year period prescribed by the Massachusetts statute of

limitations for personal injury actions. They waited six years to file suit, however, until October

2005.

2. A Massachusetts law requires the defendant board of education to recommend

curricular materials to school districts on genocide and human rights issues, including, among

33
 -2-

other "recognized ... genocides," materials about "the Armenian genocide." Under the law, the

recommendations are purely advisory. The plaintiffs allege violations of their rights under the

Free Speech Clause resulting from the defendants' decisions to limit the board's

recommendations to materials consistent with the law's recognition of the Armenian genocide as

a genocide. Because the Free Speech Clause does not restrict a State's own speech, particularly

governmental speech concerning public school curricula, the plaintiffs have failed to state a

claim upon which relief may be granted.

3. Even if the Massachusetts law implicated the Free Speech Clause (which it does not) it

would be satisfied by any reasonable regulation. Moreover, a State need not be viewpoint neutral

in recommending curricular materials. In light of the plaintiffu' acceptance that legitimate

historians recoguize the reality of the Armenian genocide, Massachusetts cannot be said to have

acted unreasonably in limiting recommendations of curricular materials regarding the Armenian

genocide to the views of these legitimate historians.

4, None of the plaintiffs alleges a concrete injury. Hence there is no actual case or

controversy, the plaintiffs lack standing, and no federal jurisdiction exists to hear their claims.

34
 -3-

WHEREFORE, the defendants pray the Court to allow their motion and to dismiss the

complaint with prejudice.

Respectfully submitted,

THOMAS F. REILLY
ATTORNEY GENERAL

/s/ William W. Porter

William W. Porter, BBO #542207

David Guberman, BBO# 214020
Assistant Attorneys General
Government Bureau
One Ashburton Place, 20th Floor
Boston, MA 02108
(617) 727-2200, ext. 2976

Date: December 23, 2005

Certification pursuant to Local Rule 7.1( a)(2)

I, William W. Porter, Assistant Attorney General, hereby certify that I have conferred
with counsel for the plaintiffs, and that counsel have attempted in good faith to narrow or resolve
the issues raised in the above motion, but were unable to do so.

/s/ William W. Porter

William W. Porter

35