Thursday, August 19, 2010

Same-Sex Marriage: Impacts on Education

Below is a research paper I recently completed about the impacts on education of legalizing same-sex marriage.  If this topic interests you- enjoy!

(my views about homosexuality and same-sex marriage, though relevant to the subject matter, aren't related to the research below).

QUESTION PRESENTED:  What are the strongest arguments in support of these two competing claims: 1) legalization of SSM/SSCU (same sex marriage/same sex civil union) negatively affects education, and 2) legalization of SSM/SSCU does not impact education?
RULE:  There is little quantitative research data to support either claim.  However, as the sources below show, the arguments for each are sophisticated and supported enough to arise beyond the level of mere political rhetoric.
CONCLUSION: Legalizing SSM/SSCU will probably impact education in some ways.  Those ways will likely include 1) increased censoring of speech by teachers, students, and counselors and 2) altering curriculum.  In America, the extent and nature of those impacts will likely vary as a function of A) the amount of local control over education in the jurisdiction, B) federal and state appellate court decisions, C) controlling law in the jurisdiction, D) school board and district curricula and decisions, and E) local community activism. 

To substantiate the argument that SSM negatively affects education, I elucidate a number of potential or actual impacts. 

•    Legalizing SSM/SSCU may result in school counselors being fired or disciplined, which removes otherwise qualified counselors from doing their part to enhance education.  “A high school counselor [Don Mendell] is the subject of an ethics complaint to the Maine licensing board because of his appearance in a TV ad in favor of Maine’s Question 1, which would secure the definition of marriage as being between a man and a woman. ”  The Maine Board of Social Work Licensure subsequently voted 2-1 to dismiss the complaints.   Notably this complaint was made between the time that Governor Baldacci signed a bill into law allowing same-sex marriages in Maine (May 6, 2009), and when the law was put on hold by a narrowly won referendum on November 3, 2009.
•    Those states which legalize SSM/SSCU are arguably more likely to follow Massachusett’s lead in requiring schools to assist in forming Gay/Straight Alliances that register with GLSEN (Gay, Lesbian and Straight Education Network): “In April 2000, Massachusetts' Board of Education adopted a gay and lesbian civil rights protection "safety measure" approved by Governor William Weld in 1993 requiring schools to extend civil rights and "assist in the formation of Gay/Straight Alliance student groups. "  Notably, Massachusetts was the sixth jurisdiction worldwide to legalize SSM and the first state in the U.S. to do so.
•    Some professors may be suspended or fired based on expressing views contrary to same sex marriage or homosexuality.  Dr. Chris Kempling was suspended in 2002 by the British Columbia College of Teachers for expressing criticisms of homosexuality.  Dr. Kempling’s legal challenges failed: the British Columbia Court of Appeals found that limits on his freedom of expression were justified by the school’s duty to maintain a tolerant and discrimination-free environment, and Kempling’s complaint filed with the British Columbia Human Rights Tribunal was dismissed on similar grounds.   Though Dr. Kempling’s outcome might not have resulted directly from legalizing SSM, it is relevant to note that SSM became legal in British Columbia in 2003. 
•    School curricula may be altered to require inclusion of LGTB topics. 
1)    In British Columbia, the Ministry of Education in 2006 made a settlement agreement  with a gay couple, the Correns, committing to consult the couple on how gays are presenting in the school curricula.  Notably, parents may not opt their children out of LGBT topics in all such classes.  The Corren Agreement has resulted in the curriculum for one elective class, Social Justice 12.  (see especially Unit 6, Examining LGTB Issues) . The Corren Agreement may affect other curricula as it comes up for revision.   In the “Background and Rationale” section of its curriculum guide, Making Space: Teaching for Diversity and Social Justice Throughout the K-12 Curriculum, the British Columbia Ministry of Education notes: “The school system must also promote values expressed in federal and provincial legislation with respect to individual rights. In this regard, key pieces of legislation include the Constitution Act, the Canadian Charter of Rights and Freedoms…the BC Human Rights Code.”  Notably the BC Human Rights Tribunal, established under the BC Human Rights Code,  is the body the Correns initially complained to, which complaint resulted in the Corren Agreement.  The link between legalizing same sex marriage and this outcome is the Ministry of Education’s expressed responsibility to promote values expressed in provincial and federal legislation, including the Human Rights Code (and, I presume, the Civil Marriage Act passed in July 2005). 
2)    In Ontario, the Ministry of Education posted to their website in January 2010 a revised Health and Education curriculum  for grades 1-8, which included content about the acceptability of homosexuality and masturbation .  Premier Dalton McGuinty noted on 21 April 2010 that Catholic schools can’t opt out of the curriculum .  The next day he pulled the curriculum “off the shelf ” and pledged to listen to more groups before implementing the curriculum as planned in September 2010.  (See also my summary of the curriculum document, source #6 below).
•    In Canada: “School Boards such as those in Quebec and Ontario, especially in Toronto, Hamilton and London, now [2006] require homosexual "education" in their school system. ”  In the U.S.: “In May 2009, the Alameda Unified School Board [in California] was considering the adoption of a new curriculum for K-12 that would promote acceptance and normalization of homosexual and transgender behaviors under the guise of anti-bullying… despite the evidence of potential harm, and over the strong objections of many parents, the board adopted the proposed curriculum. ”  Examples of homosexual education include:
1) That’s a Family, targeted at K-4 students, which shows gay and lesbian parents 
2) The Human Rights Campaign’s Welcoming Schools Guide, accepted as official district curriculum in April 2010 by the Berkeley, California School Board.  The guide “is an approach specifically developed for elementary schools (K-5) and is inclusive of LGBT families and individuals in the broader context of diversity ” 
3) Two Lives Publishing is a “publisher and distributor of children's books for children in lesbian, gay, bisexual and transgendered families. ”  They offer Diversity Packs, collections of books aimed at various age subsets of K-12 audiences
4)   “The new Lambda Legal toolkit - “Tell Me the (Whole) Truth: School Supplies To Get Real Sex Education” - is the first action-oriented resource specifically addressing the anti-gay aspects of “abstinence-only” programs and their effect on lesbian, gay, bisexual, transgender and questioning youth ”.
•    As happened in British Columbia, “schools are responsible for providing an educational environment that is free from discriminatory harassment, ” and those schools may be required to provide “resources to adopt a broader, educative approach to deal with the difficult issues of harassment, homophobia and discrimination. "  This may include a higher level of policing both students, teachers, and counselors to censor statements they make about LGBT issues, including same-sex marriage.  The Jubran requirement may also result in firing teachers for statements or conduct leading to “a "poisoned" educational environment characterized by a lack of equality and tolerance, ” as happened to an anti-semitic Canadian teacher in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.  The presence of legalized SSM may be used to evidence lack of equality and tolerance by teachers who would otherwise not be disciplined for voicing disagreement with SSM. 
•    Educators may, under the U.S. federal constitution, teach about same-sex marriage in school, even to young children without giving notice to parents.  “Given that Massachusetts has recognized gay marriage under its state constitution, it is entirely rational for its schools to educate their students regarding that recognition. ”
•    Young children may be exposed to same-sex marriage field trips.  After the California Supreme Court’s decision legalized same-sex marriage, first graders in San Francisco in 2008 were taken to a same-sex wedding.  The trip was sponsored by the school . 
•    Arguments have been made same-sex marriage may impact education in four significant ways :
1)    Admission to church affiliated schools of SSM-parent children or SSM individuals (and the possibly resulting stripping of 501(c)(3) status of discriminating schools )
2)    Employment of SSM individuals as faculty/staff
3)    Housing of students based on marital status 
4)    Regulation of school clubs

To expound the argument that legalization of SSM/SSCU does not impact education, I cite a number of rebuttals to claims of impact.

•     “No on 8” and similar endeavors to legalize same-sex marriage do not affect the education code.
1)    Kate Kendall, Center for Lesbian Rights, The California Teachers Association, state superintendent O’Connell, Gov. Arnold Schwarzenegger, the American Civil Liberties Union, and other gay and civil rights groups said it is misleading to inject education into the debate over gay marriage.
2)    “Under the California Education Code, public schools are under “local control” when it comes to many curriculum choices. One of the locally-decided curriculum choices is whether to teach sex education (Cal. Ed. Code 51933). If the local school district decides to teach sex education, then and only then, the ‘instruction and materials shall teach respect for marriage and committed relationships” (Cal Ed. Code 51933(a)(7))… schools are required to tell parents that they’re teaching sex ed and need to disclose exactly what they’re teaching. (Cal Ed. code 51938). If same-sex marriage is part of that curriculum, parents have the right to exclude their child from those classes.’ ” 
3)    Hilary McLean, speaking for state Superintendent Jack O’Connell, said the decision to teach gay marriage lies with local communities and school boards rather than the state.  “Schools are not required to talk about marriage at all… It’s up to local school districts to decide. ” 
4)    None of the California’s 1,000 districts adopted policies to reflect the state Supreme Court’s legalization of gay marriage .  Why would they necessarily do so if Prop 8 failed?
5)    “’Proposition 8 does not deal with curriculum, so its passage or failure would not impact instruction,” said Ian Hanigan, spokesman for Irvine Unified, a district that offers comprehensive sex education instruction to adolescents. “There has never been a directive from the state that specifies marriage as applying to ‘heterosexual’ or ‘homosexual’ couples.”  In Garden Grove Unified, the concept of marriage is not taught as part of regular curriculum, so changes in the law would also not change class instruction, said Alan Trudell, the district’s spokesman.  Officials from Newport-Mesa Unified and Westminster School District also said they don’t expect the failure of Prop. 8 to change district policies… ”
6)    SSM legalization won’t affect parental rights over the education of their children.  In California, “State law explicitly provides that ‘instruction or materials that… do not discuss human reproductive organs or their functions’ is not subject to the parental notice and opt out laws… parents are not entitled to have notice of or the opportunity to opt their children out of such programs. California law does not support a broad parental veto regarding the contents of public school instruction. ”  (see also (Cal Ed. code 51938).) 
7)    "Seeing as there is nothing in Maine education law or rule that even mentions marriage, I think it's quite unlikely that changing the rules about marriage would encourage anyone to change what they are teaching in the classroom," said David Connerty-Marin, spokesman for the Maine Department of Education .
8)    "The ed code is crystal-clear, and that's not being reported in the ads," said Sharla Smith, the sexual health expert at the California Department of Education. Patti Kelly, a spokeswoman for the California School Boards Association, said Proposition 8 will not “impact public education. ”
9)    LDS Harvard Law grad Morris Thurston wrote: “No provision of the Education Code requires any teacher to teach that same‐sex marriage is “just as good” as traditional marriage. Teachers are to teach respect for marriage and committed relationships, and Proposition 8 will not change this law. ” 
•    Almost all claims of impact are explainable outside of the legalization of SSM; i.e., the impacts occur independent of the legalization of SSM.
1)    The Massachusetts Wirthlin family case did not turn on the legalization of SSM in that state.  Generally speaking, the introduction of homosexual education in school can occur with or without the legalization of SSM.  Censoring counselor, teacher, and student speech also occurs independent of the legalization of SSM because the legality of such actions turns on grounds other than the status of SSM in the jurisdiction.  That many of these alleged impacts occur in SSM-legal jurisdictions may be a coincidence or correlation, rather than evidencing a causative link.
2)    Many asserted impacts turn on sexual orientation discrimination, rather than on the legal status of SSM: “Remember, this was a discrimination case and as such the issues raised by it will not be affected one way or the other by the passage of Proposition 8, since discrimination based on sexual orientation is already prohibited in California. ”  

Legalizing SSM/SSCU will probably impact education in some ways.  Those ways will likely include 1) increased censoring of speech by teachers, students, and counselors and 2) altering curriculum.  In America, the extent and nature of those impacts will likely vary as a function of A) the amount of local control over education in the jurisdiction, B) federal and state appellate court decisions, C) controlling law in the jurisdiction, D) school board and district curricula and decisions, and E) local community activism.  


The following five sources highlight key arguments in the debate on education impacts resulting from legalizing or prohibiting SSM.

1)     Federal District Court’s dismissal of the famous Robert and Robin Wirthlin case in Massachusetts regarding the reading of The Prince and The Prince in their seven-year-old son’s class. 474 F.Supp.2d 261 (D.Mass. 2007).
Judge Wolf, noting the similarity of this case to the First Circuit’s Brown v. Hot, Sexy and Safer Productions, 68 F.3d 525 (1st Cir.1995), dismissed the case.  He noted that: 1)  “the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children,” 2) “under the Constitution public schools are entitled to teach anything that is reasonably related to the goals of preparing students to become engaged and productive citizens in our democracy,” and 3) “It is reasonable for public educators to teach elementary school students about individuals with different sexual orientations and about various forms of families, including those with same-sex parents, in an effort to eradicate the effects of past discrimination, to reduce the risk of future discrimination and, in the process, to reaffirm our nation's constitutional commitment to promoting mutual respect among members of our diverse society.”  The Court of Appeals affirmed the lower court.

2)    Gay marriage opponents put California schools in centre of debate, McClatchy newspapers Tuesday 21 October 2008,
This article addresses the debate about the impacts of Proposition 8 on education.  Though Prop 8 prohibited rather than legalized SSM, it is useful to examine as a counterpoint to the argument that legalizing SSM impacts education.  The article quotes some authorities claiming that Prop 8 doesn’t affect education and discusses the California education code.

3)    Settlement Agreement: Murray and Peter Corren, Complainants, and British Columbia, Respondent.
This document details the agreement between the British Columbia Ministry of Education and a gay couple, which resolved a complaint made by the gay couple to the British Columbia Human Rights Tribunal.  The agreement empowers the gay couple to 1) elect homophobia-expert organizations to help revise curriculum and 2) consult on the structure and content of some curriculum to include sexual orientation/gender identity instruction.

4)    Same-Sex “Marriage” and Schools: Critical Review of the GLSEN Same-Sex “Marriage” Curriculum.

This document criticizes the proposed high school curriculum GLSEN (Gay, Lesbian and Straight Education Network) advocates.  The three authors claim to find that 1) “The curriculum was quite focused on presenting a favorable view of same-sex marriage” and 2) “The curriculum frequently suggested the use of coercive methods to persuade students toward a favorable view of same-sex marriage.”

5)    Same-sex marriage and public school curricula: preserving parental rights to direct.  32 UDTNLR 361, 371: University of Dayton Law Review (Spring 2007).

Arguing that “If proponents of same-sex marriage succeed in implementing their radical agenda, then pre-K-12 curricula will undoubtedly undergo significant modifications… These changes are likely to leave children confused and emotionally affected, especially as some advocates of same sex-marriage wish to begin presenting gay-friendly programming for children in pre-schools at a time when instruction about human sexuality and sexual practices is most certainly well beyond their developmental needs or grasp,” the author claims that same-sex marriage content is a subset of sexual education.  He also argues “that unfettered instruction supporting a gay rights agenda and same-sex marriage can have a negative impact on the right of parents to direct the educational upbringing of their children by exposing them to ideas that are best discussed at home., and therefore should require more parental input than other subjects.” 37 JLEDUC 269, 272-273: Journal of Law and Education, Law Review Digest: Primary and Secondary Education, (April 2008). 

6)    The Ontario Curriculum Grades 1-8: Health and Physical Education (2010).

This 208 page document details curriculum expectations for grades 1-8, and is mostly focused on exercise, diet, healthy living, human development, safety, etc.  The revision didn’t attract much attention between January and March 2010 until comments by Charles McVety, a powerful Canadian evangelical.  The curriculum includes many sample dialogues between students and teachers.  Some excerpts from the sample dialogues:
-    “We all come from different families. Some students live with two parents.  Some live with one parent. Some have two mothers or two fathers.” (Pg. 112)
-    “Things I cannot control include … my gender identity, sexual orientation, and overall body shape and structure.” (146)
-    “We need to make sure that we don’t assume that all couples are of the opposite sex, and show this by the words we use. For example, we could use a word like ‘partner’ instead of ‘husband’ or ‘wife’.” (165)
-    “… is important. So is having all gender identities and sexual orientations portrayed positively in the media, in literature, and in materials we use at school... Additional help can come from trusted adults, community organizations, and school support systems such as gaystraight alliances.” (202)

Other Ontario Curriculum Resources:
•    The 1998 version of the Grades 1-8 Health and Physical Education Curriculum
•    Arguing that tabling the curriculum was a response to pressure from religious groups:
•    Arguing that tabling the curriculum was not a response to pressure from religious groups:
•    Claim that the curriculum will sneak back in: Robson, John.  “Classroom Engineering.”  The Ottawa Citizen, May 7, 2010.  Also Sharma, Prakash.  “Dalton McGuinty Revises Sex Education Curriculum.”  TopNews, April 28, 2010.
•    Arguing that outcry is based on a misunderstanding: Lajoie, Don.  “Ont. backtracking on sex ed program puts children at risk.” Windsor Star, April 27, 2010.

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