January 2016 Legal Matters

In its 1978 opinion in Ambach v. Norwick, the U.S. Supreme Court observed that schools are charged with the important task of “inculcating fundamental values necessary to the maintenance of a democratic political system.” Accordingly, the public school curriculum sits at the center of public debate across the country.

For example, widely read and lauded texts like The Scarlet Letter, The Great Gatsby, and Harry Potter have long been the subject of objections by parents seeking to have the books removed from curricular plans or library shelves. These debates sometimes lead to litigation, as the inclusion and exclusion of curricular and library materials sometimes have constitutional implications.

Relevant Litigation

In many districts, parent objections have been the source of curricular controversy. For example, in Parker v. Hurley, the U.S. Court of Appeals for the First Circuit considered claims by two families alleging that a school violated their rights of parental autonomy and free religious exercise by introducing books depicting homosexual relationships without offering parents notice or an opt-out opportunity.

The First Circuit observed that the parents had an unquestionable right to determine whether to send their children to public school. Once there, however, the court reasoned that the parents’ rights did not authorize them to direct the school curriculum. Further, the parental rights granted under the Constitution do not require a school to “shield individual students from ideas which potentially are religiously offensive.” This is especially so, the court found, in curricular settings where students are not required to participate in or affirm principles that run contrary to their familial beliefs. Numerous other courts have found, as did the First Circuit in Parker, that parents’ rights do not include the right to direct the school’s curricular choices.

A 2009 opinion by the U.S. Court of Appeals for the Eleventh Circuit in American Civil Liberties Union of Florida Inc. v. Miami-Dade County School Board illustrates this. The dispute began when a parent objected to the inclusion of a children’s book about Cuba in his daughter’s school library. The parent reported that he had been a prisoner of conscience in Cuba, and he alleged that the book failed to accurately teach children about the reality of life in the country. Ultimately, the school board overruled the decisions of the school principal and superintendent and agreed with the father, citing inaccuracies in the text as its reason for removal. Another group of parents filed suit, alleging that the removal was politically motivated and unconstitutionally suppressed ideas in contravention of the First Amendment.

The Eleventh Circuit disagreed. While removal of the book might be unlawful if it was motivated by a desire to suppress an idea, the court opined, the school board’s decision was lawful where it was based on discontent with factual inaccuracies in the book. As such, school leaders have authority over the curriculum, and they need not bend this authority to meet all parent objections.

In addition to parent concerns, however, schools often find their curricula at the center of fierce internal and public debate. This is perhaps no more clear than in a recent case heard by the Ninth Circuit, Arce v. Douglas, concerning a cultural curriculum taught by the Tucson Unified School District. The district, which serves a majority Latino student community, created a Mexican-American Studies curriculum to add to its existing offerings. While the district viewed the curriculum as promoting greater student cultural knowledge, some state officials viewed it as ethnically divisive.

Arizona’s legislature promptly enacted statutes prohibiting curricula that promoted either overthrow of the government or ethnically based resentment that aimed to serve a specific ethnic group and that advocated ethnic solidarity over individual treatment. When two state superintendents found—contrary to the investigation of an outside firm—that the Mexican-American Studies curriculum violated this new statute, the state ordered a halt to the program, ultimately fining the Tucson schools and ordering the prompt removal of all materials related to this curriculum from classrooms.

A group of Tucson school employees and students challenged the decision, alleging that state actors eradicated the curriculum in suppression of their free-speech rights under the First Amendment and out of racial animus in violation of the Fourteenth Amendment. Just last summer, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that while the statute is not discriminatory on its face, there existed enough evidence—such as campaign-trail statements by a soon-to-be state superintendent that he planned to “stop La Raza”—to grant the plaintiffs a trial in court on their claims of race discrimination.

On First Amendment grounds, the Ninth Circuit recognized that the case required it to strike a nuanced balance between a state’s education authority and a student’s right to access information, materials, and ideas approved by a local school board. The court found that the state law’s prohibition on curriculum designed for a specific group was unconstitutionally overbroad because its meaning was too unclear to expect districts to comply. The appellate court directed the trial court to consider whether plaintiffs could prove their claim that the statutes under which the Mexican-​American Studies curriculum was prohibited imposed viewpoint discrimination.

The Parker, Arce, and Miami-Dade cases demonstrate that curricula communicate values. Accordingly, schools often find themselves at the center of sensitive debates. To be certain, the suppression of ideas or ethnically based targeting will raise constitutional questions with which schools will have to contend in courts of law or public opinion. A focus on pedagogy typically will steer school leaders in the right direction. But the school’s valuable role of reproducing a pluralistic democracy is one fraught with good questions and debates.

Sidebar: Recommendations for Principals

The diversity of deeply held beliefs present in school environments makes it likely that principals will encounter a curricular challenge at some point in their careers. Given that courts often favor schools in scenarios where the challenged practice is instructionally sound, having teachers write a curricular rationale prior to starting a unit of study is advisable. The process of writing a rationale not only draws the instructors deeper into understanding the complexity of their material, but also provides a ready resource for use in the event that a parent challenges instruction. Here is some specific guidance:

Establish a process to resolve disputes. Utilize a review panel of parents, teachers, and administrators to evaluate the challenge prior to the involvement of the school board.

Develop policies that are transparent, in consultation with legal counsel. Teachers should know what the policy entails and work collaboratively with their administrators to determine the appropriate use.

Ensure that teachers are well informed on legal issues that impact their classroom. For example, given that recent cases have focused on the intersection of instruction and religion, a professional development session could prepare teachers to thoughtfully consider experiential learning strategies that pertain to faith practices.


Suzanne E. Eckes, JD, PhD, is a professor at Indiana University. She has been widely published on school legal matters.

Allison Fetter-Harrott, PhD, is an assistant professor at Franklin College in Franklin, IN, where she holds the Williams Chair in Law and Public Service. 

Cory Irwin is assistant principal of Central Middle School in Columbus, IN, and a doctoral student in educational leadership at Indiana University in Bloomington, IN. 


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