Sex-Ed Dispute Aired in Court

By Daniel de Vise
Washington Post Staff Writer
Thursday, January 17, 2008

A six-year battle over the content of a new sex education curriculum in Montgomery County schools came down to two questions posed yesterday in a Rockville courtroom: Can the school board legally teach students that homosexuality is innate? And can the lessons discuss sex acts other than copulation?

Montgomery educators are defending the new curriculum, approved by the school board last summer, which addresses sexual orientation as a classroom topic for the first time. The lessons place the county at the fore of a trend among some of the nation's public schools toward more candor in discussing homosexuality. But they have prompted a strenuous challenge from religious conservatives who see the curriculum as a one-sided endorsement of homosexuality.

Until now, opposition has focused on the constitutional rights of Montgomery families whose religious beliefs do not abide homosexuality. But with yesterday's hearing before Circuit Court Judge William Rowan III, an attorney for the plaintiffs narrowed his focus to a few words in the disputed lessons.

Brandon Bolling, a lawyer from the Thomas More Law Center in Ann Arbor, Mich., challenged a passage in the 90-minute lessons that describes homosexuality as innate. That assertion, he said, violates a provision of a state law that says school curricula must be factual.

That sexual orientation is innate is a theory that has been rejected by courts in several states, Bolling said. "The Maryland law says you have to teach something that is factually accurate," he said. "They are not doing that. That is illegal."

School officials say the legal challenge intrudes on their right to do their job: writing curricula and teaching children. The new lessons survived an appeal last year to the Maryland State Board of Education, which determined it had no place to "second-guess the appropriateness" of the lessons.

"The purpose of the law in Maryland is to leave educational decisions to educators," said Judith Bresler, attorney for the county school board. She said critics were effectively asking the court to edit the curriculum "word by word."

The school system began working on the lessons six years ago at the urging of a citizens advisory group, which noted that the old curriculum permitted teachers to speak about homosexuality only in response to a student inquiry.

A first attempt to revise the lessons ended in 2005, when a federal judge found fault with teacher materials that criticized religious fundamentalism. Superintendent Jerry D. Weast withdrew the lessons before they were taught.

Rewritten lessons, more tightly scripted and pruned of religious content, were introduced last year. Opponents were unable to halt them before they reached the classroom. The sessions were taught in middle schools in the fall and are being covered in high schools this week. Students participate in the disputed lessons only if their parents sign permission slips. Ninety-five percent of students opted for the lessons in middle schools and about 97 percent in high schools, said Brian Edwards, Weast's chief of staff.

Eighth-grade students had two 45-minute lessons on human sexuality. Tenth-grade students get those lessons, plus 45 minutes on the correct use of a condom.

Opponents object to language in the condom lesson about oral and anal sex. Bolling said those passages violate a state prohibition against material that "portrays erotic techniques of sexual intercourse."

State code offers no further guidance. Critics of the curriculum said yesterday that the code covers any talk of sex acts other than those used for procreation.

Bolling said the state school board had allowed Montgomery too much discretion in defining the term. Bresler, speaking for the county board, said that Maryland affords school boards special deference in interpreting education laws. The judge concurred.

Jonathan Frankel, an attorney for the advocacy group Parents, Families and Friends of Lesbians and Gays of the Metropolitan Washington D.C. Area, offered the judge further perspective. "There's a big difference," he said, "between the condom video and the Kama Sutra."

The judge said he would respond with a written ruling.

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