BOSTON – A Massachusetts federal appeals court today ruled that an elementary school can continue to use children's books that encourage tolerance for gay people. The ACLU cheers the decision, which rejected the claims of parents who said exposing their children to such books violated their ability to direct the religious training of their children.

Noting that there has never been a federal case finding a constitutional right of parents to exempt their children from exposure to books used in public schools, the court said, "There is no free exercise right to be free from any reference in public elementary schools to the existence of families in which the parents are of different gender combinations."

"The courts have rightfully found that parents can't control which books are used in school just because they are in conflict with their personal religious beliefs," said Sarah Wunsch, ACLU of Massachusetts staff attorney. "School administrators and teachers can take heart from this and not be afraid to use materials that show diverse families just because a handful of parents might object."

The two families objecting to the use of the books filed suit after the Lexington Superintendent of Schools released a public statement explaining the school district's position that it would not provide parental notification for "discussions, activities, or materials that simply reference same-gender parents or that otherwise recognize the existence of differences in sexual orientation."

The court noted that "Public schools often walk a tightrope between the many competing constitutional demands made by parents, students, teachers, and the schools' other constituents… The balance the school struck here does not offend the Free Exercise or Due Process clauses of the U.S. Constitution.”

"The ACLU supports the rights of parents to religious freedom, which includes the right to talk to their children about what they are learning in school, giving them alternative materials, and conveying their values and beliefs," said Wunsch. "Ultimately, if parents object to public education, they also have a constitutional right to send their children to private schools, to home school them, and to lobby their local school officials for changes in the curriculum. But they do not have a federal constitutional right to control the material that is taught to all students."

The ACLU of Massachusetts filed a friend of the court brief urging dismissal of the case, Parker v. Hurley, on behalf of local Lexington parents, teachers, and religious groups, as well as civil rights organizations that supported the teaching of diversity and respect for others. These groups were Lexington CARES, Lexington Education Association, Massachusetts Teachers Association, and Respecting Differences. Boston attorneys Eben Krim and Mark Batten of Proskauer Rose worked on the brief with the ACLU. An appeal was heard in December after the court dismissed the case in February 2007.

Today’s ruling was issued by the U.S. Court of Appeals for the First Circuit.

The books at issue in the case were "Molly's Family," "King and King," and "Who's In A Family?"

A copy of the ruling is available online:
http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-1528.01A