dddd

December 10, 2015

Mary Seidl, President, and Members of the Board of Education
Mount Horeb Area School District
1304 E. Lincoln St.
Mount Horeb, WI 53572
Via email: seidlmary@mhasd.k12.wi.us
Re: I Am Jazz
Dear Ms. Seidl and Members of the Board:
As organizations dedicated to the freedom to read, the integrity of the public education
system, and the application of the First Amendment in the public schools, we take issue
with the position expressed by Liberty Counsel in its letter to you dated Nov. 20, 2015.
Liberty Counsel claims that use of the book I Am Jazz in the educational program would
violate the legal rights of parents.
We understand that school administrators canceled a scheduled reading of the book in
order to allow the board to consider the claims made in the Liberty Counsel letter. In our
view, if the district does as Liberty Counsel proposes and decides to remove this or any
other book from the educational program solely because some parents disagree with the
message in those books, the district would open itself to legal challenge for violating the
rights of other students and their parents. We strongly advise the district to seek legal
advice from its own counsel about its legal obligations to select materials for educational
reasons alone, and not to base its decisions on individual beliefs and preferences. We are
confident that knowledgeable experts will support our conclusion.
The selection of the book, according to Liberty Counsel, signified that the school district
is substituting the beliefs of educators for those of parents about a psychological and
moral disorder. While framing the debate over the book as a question of parents
rights, the gravamen of Liberty Counsels argument is based on religion: that parents
have a right to limit the instructional materials to those that accord with their religious
beliefs. This is clear from both the text of the letter, and from the organizations website
(https://www.lc.org/about-liberty-counsel), on which it defines itself as a Christian
ministry, advocating for students who want to pray and thank God in their schools and
for defining marriage as the union of one man and one woman, among other things.
Liberty Counsels complaint about I Am Jazz is based on its antipathy to the subject
matter: a transgender student in the class who identifies as a girl, but has male anatomy.
The objecting parents may prefer that their children not be aware of the existence of nongender-conforming children, but that is not an option: such a child is a student in their
midst, with whom they must learn to interact. Her parents have rights equivalent to those

of objecting parents, including the right for their child to receive an education that offers the same respect
and dignity accorded all other children.
Religious parents rights to free exercise of their religion are not violated by the schools use of this book.
In a closely analogous case in which parents claimed that books used in the public school conflicted with
their religious beliefs, the Seventh Circuit Court of Appeals, which has jurisdiction over Wisconsin,
rejected the claimed violation of the free exercise clause: The free exercise inquiry asks whether
government has placed a substantial burden on the observation of a central religious belief or practice
[and whether use of certain books] has a coercive effect that operates against the parents' practice of their
religion. Fleischfresser v. Directors of School Dist. 200, 15 F. 3d 680, 689-90 (7th Cir. 1994) (citations
omitted).
The court held that any burden on the parents religious belief was, at most, minimal. Parents remained
free to instruct their children in religious matters, and were not required to do or refrain from doing
anything of a religious nature. Thus, no coercion exists, and the parents' free exercise of their religion is
not substantially burdened. Id. The court went even further, however, holding that the governments
interest in educating children outweighed any interests parents may have: Even if we were to find that
the parents' free exercise rights were somehow substantially burdened, we would find that the government
interest outweighed such a burden [and that] the government's interest in providing a well-rounded
education would be critically impeded by accommodation of the parents' wishes Id. (Citations
omitted). See also Linnemeir v. Board of Trustees of Purdue Univ., 260 F. 3d 757, 759 (7th Cir. 2001)
(The government's interest in providing a stimulating, well-rounded education would be crippled by
attempting to accommodate every parent's hostility to books inconsistent with their religious beliefs.)
Every other federal appellate court to address the issue has reached the same conclusion. E.g., Parker v.
Hurley, 514 F. 3d 87, 105 - 6 (1st Cir., 2008): the mere fact that a child is exposed on occasion in public
school to a concept offensive to a parents religious belief does not inhibit the parent from instructing the
child differently. Public schools are not obliged to shield individual students from ideas which
potentially are religiously offensive, particularly when the school imposes no requirement that the student
agree with or affirm those ideas, or even participate in discussions about them.1
While parents have a general right to direct their childrens upbringing, the courts have held that parents
do not have the right to tell a public school what his or her child will and will not be taught, Leebaert v.
Harrington, id. at 141, or to direct how a public school teaches their child. Blau v. Fort Thomas Public
School District, id. at 395. Parental rights mean that parents may decide whether to send their children to
public school, private school, or to school them at home, not that they can dictate what is included in the
curriculum. A recent decision in the Wisconsin Court of Appeals makes this clear:
parents do have a right to: send their child to private school, religious or secular, Pierce, 268 U.S.
510, 45 S.Ct. 571, 69 L.Ed. 1070; have their child learn a foreign language, Meyer, 262 U.S. 390,
43 S.Ct. 625, 67 L.Ed. 1042; and withdraw their child from public education where their religion
requires it as part of a way of life, Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15. Even
though Wisconsin courts have not specifically addressed this issue, the extensive federal case law
in this area establishes that parents simply do not have a constitutional right to control each and
every aspect of their children's education and oust the state's authority over that subject.

See also Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005), as amended, 447 F.3d 1187 (9th Cir. 2006); Blau v. Fort
Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005); CN v. Ridgewood Bd. of Educ., 430 F. 3d 159 (3rd Cir. 2005); Leebaert v.
Harrington, 332 F.3d 134 (2d Cir. 2003); Littlefield v. Forney Indep. School, 268 F.3d 275 (5th Cir. 2001); Swanson v. Guthrie
Indep. School Dist. 135 F.3d 694 (10th Cir. 1998); Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir.
1987); Grove v. Mead School Dist. No. 354, 753 F. 2d 1528 (9th Cir 1985); Pratt v. Independent School Dist. No. 831 (8th Cir.
1982).

Larson v. Burmaster, 720 N.W.2d 134, 150 (Wisconsin Court of Appeals, 2006), rev. denied, 724
N.W.2d 203 (2006), and see cases cited therein.
On the other hand, removal of material in response to parental complaints, whether religious or other,
exposes a school to legal challenge and potential liability. See, e.g., Pratt v. Ind. Sch. Dist. No. 831,
Forest Lake, 670 F. 2d 771, 778 - 79 (8th Cir., 1982), in which [p]arents and citizens sought to have the
films removed largely on the basis of the purported negative impact the material would have on the
religious and family values of students. After the school board acceded to the demands and removed the
film in response to the objections, the court found that this action [interfered] with the students right
to receive information. [and] violated the First Amendment. The Ninth Circuit explains:
when a school board identifies information that it believes to be a useful part of a student's
education, that student has the right to receive the information. [A] student's First Amendment
rights are infringed when books that have been determined by the school district to have
legitimate educational value are removed from a mandatory reading list because of threats of
damages, lawsuits, or other forms of retaliation.
Monteiro v. Tempe Union High School District, 158 F. 3d 1022, 1028 -29 (9th Cir. 1998). In sum, the
school district has discretion to determine the composition of its curriculum, id., even if its choice of
educational materials conflicts with some parents religious beliefs. Moreover, students have a
constitutional right of access to materials chosen for their educational value, and the removal of such
materials may expose schools to potential liability.
There are compelling reasons for this approach. Every community is home to a diversity of opinions on
moral and religious questions. Removing a book in response to complaints about content or viewpoint
privileges the political, moral, and/or religious beliefs of those individuals who object to the book, over
others who do not. It is precisely this form of viewpoint discrimination by government that our
constitutional system is designed to prevent. This rule is essential to the integrity of the educational
program, since there are few instructional materials that do not include something that is objectionable to
someone. Any attempt to eliminate everything that is objectionable...will leave public schools in shreds.
Nothing but educational confusion and a discrediting of the public school system can result.... McCollum
v. Board of Educ. 333 U.S. 203, 235 (1948) (Jackson, J. concurring).
The decision to include I Am Jazz in the curriculum is easily justifiable on educational grounds.
According to Booklist, The book gives a clear explanation, even for the youngest, of how she knew that
she was born different and the importance of family acceptance. School Library Journal agrees that for
those looking to introduce the concept to young readers or those seeking books that value differences, this
illustrated memoir is a solid choice. Public schools have an obligation to administer school curricula
responsive to the overall educational needs of the community and its children. Leebaert v. Harrington,
id. School officials should be lauded for their efforts to provide a safe and appropriate education for all
students, including LGBT students.
This is especially true given the bullying, harassment, and discrimination reported by so many LGBT
students. The Institute of Medicine confirms these reports and observes that school safety is one way to
mitigate the risks to such students. 2 In contrast, Liberty Counsel ignores this problem altogether, relying
instead on the unsupported assertion that other children will experience some ill-defined harm if the
school includes I Am Jazz in the classroom.

4 Childhood/Adolescence. Institute of Medicine. The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a
Foundation for Better Understanding. Washington, DC: The National Academies Press, 2011, p. 172. See also Stephen T.
Russell, et al., Lesbian, Gay, Bisexual, and Transgender Adolescent School Victimization: Implications for Young Adult
Health and Adjustment. Journal of School Health, May 2011, Vol. 81, No. 5 (2011).

It also seeks to characterize gender nonconformity as a moral and psychological disorder. However, its
definition of morality, grounded in religious belief, cannot constitutionally be enforced or promoted in the
public schools for reasons stated previously. The claim that gender nonconformity it is a psychological
disorder is problematic as a factual matter. The American Psychiatric Associations Diagnostic and
Statistical Manual of Mental Disorders (DSM-5) concludes that gender nonconformity is not in itself a
mental disorder. Its use of the term gender dysphoria is intended to remove[ ] the connotation that the
patient is disordered. (http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf)
The result Liberty Counsel urges on the district is the opposite of what the courts mandate and what
health and education authorities recommend. Acceding to their demand would expose the school district
to potential legal liability and disserve the students and families the district serves.
We strongly encourage you to support the decision made by your professional staff to use I Am Jazz in its
efforts to provide respect and support and a safe and nurturing environment for all students.
Sincerely,

Joan Bertin, Executive Director

National Coalition Against Censorship

Barry Lynn, Executive Director

Americans United for Separation of Church and State

Chris Finan, Director

American Booksellers for Free Expression

Millie Davis, Director

Intellectual Freedom Center
National Council of Teachers of English

Judy Platt, Director

Free Expression Advocacy
Association of American Publishers

Charles Brownstein, Executive Director

Comic Book Legal Defense Fund

Lin Oliver, Executive Director

Society of Childrens Book Writers
and Illustrators

Fatima Shaik, Chair

Childrens and Young Adult Book Committee
PEN American Center

CC: Leah Lipska, Vice President: lipskaleah@mhasd.k12.wi.us

Jeff Hanna, Clerk: hannajeff@mhasd.k12.wi.us
Diana Rothamer, Treasurer: rothamerdiana@mhasd.k12.wi.us
Peter Strube, Director: strubepeter@mhasd.k12.wi.us
Michelle Dunn, Director: dunnmichelle@mhasd.k12.wi.us
Dani Michels, Director: michelsdani@mhasd.k12.wi.us
Deb Klein, Superintendent: kleindeb@mhasd.k12.wi.us