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1718047*

Kevin T. Snider, State Bar No. 170988

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1 Matthew B. McReynolds, State Bar No. 234797
PACIFIC JUSTICE INSTITUTE
FILE
ALAMia)A 0$)th
212 9Ih St., Suite 208
Oakland, CA 94607 P 21 4009
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Tel. (510) 834-7232 SlIP910 1R COURT
4 kevinsnider@pacificiustice.org
By Deputy
mattmcreynolds@pacificjustice.org
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6 Attorneys for Petitioners

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF ALAMEDA
9
AISHA BALDE, JOLENE CHAN, ) Case No.: RG 09-468037
10 TOMMY CHEUNG, DANIEL CHIN, )
HANFORD CHIU, RICHARD CLARK, )
11 ) NOTICE OF MOTION AND MOTION
DIANE CLARK, MIKEL DEL ) FOR THE ISSUANCE OF AN
ROSARIO, ARCHIE FELDC, FAME ) ALTERNATIVE WRIT OF
12 FELIX, WENDY FONG, SUE FUNG, ) MANDAMUS; APPLICATION FOR
13 MARIA GUADALUPE GOMEZ, JUDY ) THE ISSUANCE OF AN
JOHANSING, DANLIN LI, KERRI ) ALTERNATIVE WRIT OF
14 LONERGAN, MATT LONERGAN,
) MANDAMUS; MEMORANDUM OF
) POINTS AND AUTHORITIES IN
LINDA MORGAN, JONATHAN ) SUPPORT OF THF. FIRST AMENDED
15 STAIRS, and VICKI STAIRS, ) VERIFIED PETITION FOR WRIT OF
Petitioners, ) MANDAMUS
16
V.
) Date: Oct. 5, 2009
17 ) Time: 9:00 a.m.
ALAMEDA UNIFIED SCHOOL ) Dept.: 31
18 DISTRICT, KIRSTEN VITAL, Hon.: Frank Roesch
SUPERINTENDENT, in her official 5
19 capacity. )
) RESERVATION #: R-980972
20 )
Respondents. )
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Motion for writ of Mandamus
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1 NOTICE OF MOTION FOR THF ISSUANCE OF AN

2 ALTERNATIVE WRIT OF MANDAMUS

3
4 To: The Parties and Their Attorneys of Record

5 Please take notice that, on October 5, 2009, in Department 31 of the Superior Court of California,

6 County of Alameda, located at 201 13th Street, Oakland, California, 94612, at 9:00 a.m., attorneys

7 for Petitioners, AISHA BALDE, JOLENE CHAN, TOMMY CHEUNG, DANIEL CHIN,
8
HANFORD CHIU, RICHARD CLARK, DIANE CLARK, MIKEL DEL ROSARIO, ARCHIE
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10 FELIX, J'AIME FELIX, WENDY FONG, SUE FUNG, MARIA GUADALUPE GOMEZ, JUDY

11 JOHANSING, DANLIN LI, KERRI LONERGAN, MATT LONERGAN, LINDA MORGAN,

12 JONATHAN STAIRS, and VICKI STAIRS (hereinafter referred to as "Petitioners") will move as

13 follows:
14 For the issuance of an alternative writ of mandamus as per the California Code of Civil

15 Procedure §1085, directing Respondents, Alameda Unified School District and Kirsten Vital in
16
17 her official capacity, and their agents, to allow the Petitioners to have their children excused from

18 a portion of health instruction entitled Safe School Community Curriculum — Lesson 9, also know

19 as the Caring School Community supplement, Lesson 9, for the 2009-2010 school year as well as

20 subsequent school years as per Education Code §51240 or to show cause before this Court why

21 they have not done so and why a preemptory writ should not issue.
22
This motion is based on this NOTICE OF MOTION FOR THE ISSUANCE OF
23
24 ALTERNATIVE WRIT OF MANDAMUS, the FIRST AMENDED VERIFIED PETITION FO
25 WRIT OF MANDAMUS, the MEMORANDUM OF POINTS AND AUTHORITIES
26 SUPPORT OF THE FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS
27 the DECLARATION OF KEVIN T. SNIDER, the exhibits and records lodged in support of th

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Motion for Writ of Mandamus
9
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1 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS, upon all the papers

2 records, and documents on file herein, and upon evidence, oral and documentary, which have o

3 may be submitted on these matters.

4
Dated: September 17, 2009
5
6 By
Kevin T. Snider
7 Matthew B. McReynolds
PACIFIC JUSTICE INSTITUTE
8 P.O. Box 276600
9 Sacramento, CA 95827
Tel. (916) 857-6900
10 Fax (916) 857-6902
kevinsniderapacificiustice.org
11 matUncreynolds@pacificjustic,e.org
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Attorneys for Petitioners
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Motion for Writ of Mandamus
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1 MOTION FOR THE ISSUANCE OF AN ALTERNATIVE WRIT OF MANDA1VIUS

2
Petitioners move as follows:
3
4 For the issuance of an alternative writ of mandamus as per the California Code of Civil

5 Procedure §1085, directing Respondents, Alameda Unified School District and Kirsten Vital in

6 her official capacity, and their agents, to allow the Petitioners to have their children excused from
7
a portion of health instruction entitled Safe School Community Curriculum — Lesson 9, also know
8
as the Caring School Community supplement, Lesson 9, for the 2009-2010 school year as well as
9
subsequent school years as per Education Code §51240 or to show cause before this Court why
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11 they have not done so and why a preemptory writ should not issue.

12
13 Dated: September 17, 2009
By
14 Kevin T. Snider
15 Matthew B. McReynolds
PACIFIC JUSTICE INSTITUTE
16 P.O. Box 276600
Sacramento, CA 95827
17 Tel. (916) 857-6900
Fax (916) 857-6902
18 kevinsniderpacificiustice.oru
19 mattmereynolds®pacificjustice.org

20 Attorneys for Petitioners

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Motion for Writ of Mandamus

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 APPLICATION FOR THE ISSUANCE OF AN ALTERNATIVE WRIT OF MANDAMUS
I
2 Petitioners hereby respectfully make application for the issuance of an Alternative Writ of

3 Mandamus commanding Respondents, Alameda Unified School District and ICirsten Vital, and
4 their agents, to comply with Education Code §51240 or to show cause before this Court why they
5
have not done so and why a preemptory writ should not issue.
6
Dated: September 17, 2009
7
8
By
9 Kevin T. Snider
Matthew B. McReynolds
10 PACIFIC JUSTICE INSTITUTE
P.O. Box 276600
11 Sacramento, CA 95827
12 Tel. (916) 857-6900
Fax (916) 857-6902
13 kevinsniderftacificiustice.org
matta
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15 Attorneys for Petitioners

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Motion for Writ of Mandamus
 Kevin T. Snider, State Bar No. 170988
2 Matthew B. McReynolds, State Bar No. 234797
PACIFIC JUSTICE INSTITUTE
3 P.O. Box 276600
Sacramento, CA 95827
4 Tel. (916) 857-6900
Fax (916) 857-6902
5
kevinsnider@nacificiustice.org
6 mattincreynolds®nacfficjustice.org

7 Attorneys for Petitioners

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF ALA1MEDA
10
AISHA BALDE, JOLENE CHAN, Case No.: RG 09-468037
11 TOMMY CHEUNG, DANIEL CHIN,
HANFORD CHIU, RICHARD CLARK,
12 MEMORANDUM OF POINTS AND
DIANE CLARK, MIKEL DEL AUTHORITIES IN SUPPORT OF
13 ROSARIO, ARCHIE FELIX, J'AIME THE FIRST AMENDED VERIFIED
FELDC, WENDY FONG, SUE RING, PETITION FOR A WRIT OF
14 MARIA GUADALUPE GOMEZ, JUDY MANDAMUS
JOHANSING, DANLIN LI, KERRI
15 LONERGAN, MATT LONERGAN,
LINDA MORGAN, JONATHAN
16
STAIRS, and VICKI STAIRS,
17 Petitioners,
v.
18
ALAMEDA UNIFIED SCHOOL
19 Date: Oct. 5, 2009
DISTRICT, KIRSTEN VITAL, Time: 9:00 an
20 SUPERINTENDENT, in her official Dept.: 31
capacity. Hon.: Frank Roesch
)
21 ) RESERVATION #: R-980972
Respondents. )
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Motion for Writ of Mandamus
1 TABLE OF CONTENTS
2
3 STATEMENT OF FACTS 1

4 SUMMARY OF ARGUMENT 2
5
ARGUMENT 3
6
7 I. Mandate is proper to compel the District to excUse parents' children from Lesson 9 .2
8 a. The District has a clear and present duty to excuse the parents' children from
9 attending classes covering Lesson 9 because it conflicts with the parents'
religious training and beliefs 3
10
b. Respondents' duty is ministerial in nature 4
11
c. The parents have a clear and present beneficiary interest in having their
12 children excused 4
13
d. The District has failed to perform a duty mandated by law 6
14
e. Petitioners have no other plain, speedy, and adequate remedy 6
15
II. Lesson 9 falls within the parameters of health instruction as established by
16
California's State Board of Education 7
17
III. The AUSD Board of Education lacked the legal capacity to circumvent Edud.C.
18 §51240 12
19 CONCLUSION 12
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Motion for Writ of Mandamus
 1 TABLE OF AUTHORITIES
2
Cases
3
American Civil Rights Foundations v. Berkeley Unified School District
4 (2009) 172 Cal.App.4 th 207 12
5
Norton v. San Bernardino Unified School District (2008) 158 Cal.App.4th 749 3
6
In re Jonathan L. (2008) 165 Cal.App.4th 1074 4-5
7
In re Phillip B. (1979) 92 Cal.App.3 rd 796
8
9 In re Stier (2007) 152 Cal.App.4th 63 3

10 Kavanaugh v. West Sonoma Union High School District (2003) 29 Cal.App.4th 911 3

11
12
Statutes
13
Code of Civil Procedure §1085 2-3
14
Education Code §75 3
15
16 Education Code §200

17 Education Code §51210.8 7

18 Education Code §51240 passim

19 Education Code §35160 11
20
Government Code §6250 6
21
Penal Code §422.6
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Motion for Writ of Mandamus
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Motion for Writ of Mandamus

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 STATEMENT OF THE FACTS
1
2 On May 26, 2009, the Alameda Unified School District (AUSD) Board of Education

3 adopted the Safe School Community Curriculum — Lesson 9, also know as the Caring School
4 Community supplement, Lesson 9, for the 2009-2010 school year. (For ease of reference the
5
curriculum will be referred to as "Lesson 9"). The purported purpose of the curriculum is to teach
6
safety and tolerance on school campuses in accordance with the Student Safety and Violence
7
Prevention Act of 2000 as well as to prevent bullying and harassment pursuant to District Board
8
9 Policies, Education Code ("Educ.C.") § 200 and section 422.6(a) of the Penal Code. (Exhibit 4, IT

10 1-2). At issue is what the school has identified as Lesson 9: Lesbian, Gay, Bisexual, Transgender

11 ("LGBT") instruction. The Superintendent informed the parent petitioners that "Lesson 9
12
addresses issues of sexual orientation / gender identity." Id., at 111.
13
Petitioners' religious training and beliefs are in conflict with the curriculum's LGBT
14
instruction on the characteristics of families. As such, the current curriculum would serve to
15
undermine Petitioners' ability to provide moral and religious instruction to their children in
16
17 accordance with their own beliefs. As a result, Petitioners provided written notification to the

18 Respondents pursuant to Educ.C. §51240 requesting that their children be excused from Lesson 9.
19 The attorney for Petitioners sent a letter to the Superintendent of AUSD in which the District was
20
notified that Lesson 9 falls under the Health Education Content Standards for California Public
21
Schools, Kindergarten Through Grade Twelve's' definition of health studies. As such, the letter
22
states that section 51240's excusal from any part of health instruction applies to the parents. The
23
24 AUSD Superintendent responded by letter informing the Petitioners that their request to have their

25
26
' Hereinafter referred to as "Health Ed Content Standards." (A true and correct copy of the Health
27 Ed Content Standards is filed with the Court and marked as "Exhibit 5").
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Motion for Writ of Mandamus
 children excused from Lesson 9 was denied. The letter states, in pertinent part, as follows:
1
2
On May 26, 2009 the Board of Education approved the motion to
3 adopt the Caring School Community curriculum supplement, Lesson
9 as part of its Safe School Community program. Lesson 9
4 addresses issues of sexual orientation / gender identity. The Board's
motion and approval did not provide an opt out option.
5
6
SUMMARY OF THE ARGUMENT
7
Educ.C. §51240 requires schools to allow parents to have their children
8
9 excused, upon written request, from any part of health education that conflicts with

10 their moral or religious training and beliefs. Pursuant to the statute, the task of

11 determining what constitutes health education falls to California's State Board of

12
Education. The State Board of Education thus published the Health Ed Content
13
Standards. A review of Lesson 9 shows that it falls within the Health Ed Content
14
Standards. As such, the parental opt-out statute (Educ.C. §51240) applies. Because of
15
16 this, the parent petitioners have a beneficial interest in the District performing a

17 mandatory duty under Educ.C. §51240.

18 The District does not deny that Lesson 9 is health instruction. Instead, AUSD
19 asserts that the Petitioners are not entitled to have their children excused from that
20
portion of Lesson 9 because the Board of Education declined to provide for an opt-out
21
when it adopted the curriculum. Petitioners' position is that a school district lacks the
22
authority to circumvent a statutory right.
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Motion for Writ of Mandamus
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ARGUMENT
1
2 I. Mandate is proper to compel the District to excuse parents' children from Lesson 9.
3 Pursuant to CCP §1085, a writ of mandate will lie to compel performance when:
4 (1) the respondent has a clear and present duty;
5 (2) said duty is usually ministerial in nature;
6 (3) the petitioner has a clear, present, and beneficial interest in the performance of that
7 duty;
8 (4) the respondent has failed to perform the duty or has abused his, her, or its discretion
9 in performing the duty; and,
10 (5) the petitioner has no other plain, speedy, and adequate remedy.
11 Norton. v. San Bernardino Unified School District (2008) 158 Cal.App.4th 749, 756-57. It has
12 long been established that public school districts and their officials come under CCP §1085.
13 Norton, Id., at 757.
14
15 a. The District has a clear and present duty to excuse the parents' children from
attending classes covering Lesson 9 because it conflicts with the parents'
16 religious training and beliefs.

17 Education Code §51240 reads, "If any part of a school's instruction in health conflicts with
18
the religious training and beliefs of a parent or guardian of a pupil, the pupil, upon written request
19
of the parent or guardian, shall be excused from the part of the instruction that conflicts with the
20
religious training and beliefs." (Emphasis added). Section 75 of the Education Code states that the
21
22 use of the word "shall" is mandatory. Thus it is not subject to reasonable dispute that there is a

23 clear and present duty under Educ.C. §51240 and that said duty is mandatory when a parent or

24 guardian has provided a written notice requesting excusal of his or her child from any part of
25
health instruction that is in conflict with religious training and beliefs.
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Motion for Writ of Mandamus

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 b. Respondents' duty is ministerial in nature.
1
2 A "ministerial" act for which a writ of mandate could issue is,

3 an act that a public officer is required to perform in a prescribed manner in

obedience to the mandate of legal authority and without regard to his own judgment
4 or opinion concerning such act's propriety or impropriety, when a given state of
facts exists.
5
6 In re Stier (2007) 152 Cal.App.4th 63, 84 quoting Kavanaugh v. West Sonoma Union High School

7 District (2003) 29 Cal.App.4th 911, 916.

In short, for the purposes of mandate, "ministerial" simply means non-discretionary.

9
Therefore, because the mandatory language of Educ.C. §51240 leaves no room for discretion, said
10
section creates a ministerial duty for schools to allow parents to opt-out their children from any
11
part of health instruction upon written notification of religious beliefs and training.
12
13 c. Petitioners have a clear and present beneficiary interest in having their
children excused.
14
The parent petitioners have a clear and beneficial interest in compliance by AUSD with
15
16 Educ.C. §51240 for two reasons. The first is statutory. Simply put, Petitioners have a clear and

17 beneficial interest because the legislature has given them that interest. Id. Section 51240 has

18 expressly provided for the parental right to opt children out of any part of health instruction which
19 is inconsistent with the religious training and beliefs that are taught at home.
20
The second clear and beneficial interest relates to the fundamental rights of parents to
21
direct the upbringing of their children in religious and moral issues in a manner that does not
22
conflict with what is taught at home and in the places of worship for which the family chooses to
23
24 send them.

25 It is fundamental that parental autonomy is constitutionally protected. The United

States Supreme Court has articulated the concept of personal liberty found in the
26 Fourteenth Amendment as a right of privacy which extends to certain aspects of a
27 family relationship. (United States v. Onto (1973) 413 U.S. 139, 142 (right of

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Motion for Writ of Mandamus

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privacy includes right of marriage, procreation, motherhood, child rearing, and
1 education); ... Wisconsin v. Yoder (1972) 406 U.S. 205, 232 (parental right to
2 determine child's religious upbringing); ... Myer v. Nebraska (1923) 262 U.S. 390,
399 (liberty of parents to raise child).) "It is cardinal with us that the custody, care
3 and nurture of the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither supply nor
4 hinder." Prince v. Corn. of Massachusetts (1944) 321 U.S. 158, 166.
5
In re Phillip B. (1979) 92 Cal.App.31d 796, 801.
6
In the landmark homeschooling case decided last year, the Court of Appeal in the Second
7
District explained that the parental liberty interest encompasses educational decisions. "Early U.S
8
Supreme Court cases established that parents possess a liberty interest, protected by the due
9
10 process clause, in directing the education of their children." In re Jonathan L. (2008) 165

11 Cal.App.4th 1074, 1102 citing Pierce v. Society of Sisters (1925) 268 U.S. 510, 534-35; Meyer v.
12 Nebraska (1923) 262 U.S. 390 and Prince v. Corn. of Massachusetts (1944) 321 U.S. 158.
13
Although the extent of the liberty interests that parents possess is subject to limitations, in
14
the case before the Court, there can be no reasonable debate that the right provided by the
15
legislature found in Educ.C. §51240 is of the kind contemplated by the rulings cited above.
16
17 In other words, the right and burden of deciding what ideas children are exposed to as it relates to

18 moral issues that are fundamentally intertwined in family lifestyles falls on their parents. As such,
19 parents have a beneficial interest in the fulfillment of any statutory provisions that would aid them
20
in that task.
21
More importantly, that benefit is immediate. The materials Petitioners wish to protect their
22
children from will be taught during the first trimester of the 2009/10 school year. (Exhibit 4, ¶3).
23
24 It is self-evident that once the child hears the lesson it cannot be unheard. As such, a plain reading

25 of the facts of this case and the statute compels the conclusion that the benefit sought by
26 Petitioners by this petition is both clear and present.
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Motion for Writ of Mandamus

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 d. The District has failed to perform a duty mandated by law.

2 Pursuant to the parent/guardian notice requirements under the statute, Petitioners have

3 submitted written requests to have their children removed from the parts of Lesson 9 that conflict

4 with their religious training and moral convictions. (Exhibit 2). The mandatory language of
5
Educ.C. §51240 imposes a duty on Respondents to excuse students from health instruction that
6
conflicts with their parents' religious beliefs upon written request from parents Respondents
7
have denied and continue to deny these requests. (Exhibit 3). As such, the failure by the District
8
to excuse the children of the Petitioners from the instruction in question requires that a writ of
9
10 mandate issue.

11
e. Petitioners have no other plain, speedy, and adequate remedy.
12
13 The relief sought by Petitioners is the performance of a legal duty for which Respondents
14 have failed and refuse to perform. The nature of the relief sought makes other remedies
15
inadequate. Petitioners seek to have their children opted out of certain portions of instruction
16
which will be taught this trimester. Hence, timely relief is of the essence.
17
There are no administrative or statutory remedies available to Petitioners aside from appeal
18
19 to this Court. In their written notices, the parents specifically directed the District to "provide a

20 complete description, including forms or other written materials, for exhausting administrative
21 remedies." (Exhibit 3, 12). It is worth noting that the District was obligated to provide the above
22
materials, if any existed, because the directive was based upon California's Public Records Act
23
(Government Code §6250, et seq.). In that the District did not provide any written materials
24
regarding administrative remedies, then no such administrative remedies are available In any
25
26 event, by failing to provide any public records relative to administrative remedies and procedures,

27 the District has waived any right to assert a failure to exhaust defense.
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Motion for Writ of Mandamus

6
 Further, when the AUSD Board of Education passed Lesson 9, it did not provide an opt-
1
2 out. This was not by oversight. For the Board's President, Mike McMahon, would not vote for

3 Lesson 9 unless an opt-out provision was included. (Exhibit 6, at pg. 9). The President's request

4 did not receive a second. It follows then that even if there were an administrative remedy

5 available, the District likely determined that going through an administrative process, in which the
6
Board of Education would make the final decision on appeal, would be meaningless in view of the
7
Board's previous decision not to include an opt-out provision.
8
9 Hence, absent relief from this Court, there is no adequate, speedy or plain remedy availabl

10 to the Petitioners.

11 IL Lesson 9 falls within the parameters of health instruction as established by

California's State Board of Education.
12
13 In October of 2005, Section 51210.8 was added to the California Education Code. Educ.C.

14 §51210.8 requires the State Board of Education to adopt standards for the instruction of health

15 education in California Public schools. Id. In March of 2008, in order to comply with 51210.8, the

16 state board adopted and published Health Ed Content Standards. Exhibit 5 at pg. vi. According to
17
the standards set forth in Health Ed Content Standards, Lesson 9 is health education. AUSD has
18
19 not disputed this. Nonetheless, out of an abundance of caution, Petitioners will demonstrate how

20 Lesson 9 is consistent with California's standards for health education.

21 The pertinent goals for health education in the Health Ed Content Standards include

22 teaching students how to:

23
• "Describe how members of a family have various roles, responsibilities, and
24
individual needs." Id. at pg.6 (Growth and Development Standard 1.4.0 for Grade
25
One).
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Motion for Writ of Mandamus

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 • "Discuss how to show respect for similarities and differences between and among
1
2 individuals and groups." Id. at pg.12 (Mental, Emotional, and Social Health

3 Standard 1.7.M for Grade Two).

4 • "Demonstrate the ability to support and respect people with differences." Id. at
5
pg.16 (Mental, Emotional, and Social Health Standard 8.3.M for Grade Three).
6
• "Examine the effects of bullying and harassment on others." Id. at pg.19 (Injury
7
Prevention and Safety Standard 1.4.S for Grade Four).
8
9 • "Recognize that there are individual differences in growth and development,

10 physical appearance, and gender roles." Id. at pg.25 (Growth, Development, and
11 Sexual Health Standard 1 6 G for Grade Five).
12
13 All of these goals can be found within Lesson 92 . That Lesson 9 closely follows the State

14 Standards set down by the State Board of Education cannot be held in doubt. A brief review of
15 the Lesson 9 curriculum and how it tracks with Health Ed Content Standards is easily
16
demonstrated.
17
First Grade: The state standards for health education for first grade are: "Describe how
18
members of a family have various roles, responsibilities, and individual needs." (Growth and
19
20 Development Standard 1.4.0 for Grade One). Exhibit 5 pg. 6.

21 Lesson 9 learning materials for first grade include a required book entitled Who's In a
22 Family.' The stated purpose for Lesson 9's first grade lessons are to: (1) "identify what makes a
23
24
'In addition, Lesson 9 is a part of the District's anti-bullying and harassment instruction. Exhibit
25
4 at 1-2. Bullying and harassment instruction is also a part of California's content standards for
26 health education. Exhibit 5, at pg. 19.
Written by Robert Skutch, illustrated by Laura Neinhaus, Tricycle Press, ISBN: 188367266X,
27 Berkeley, CA, 2004C.
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Motion for Writ of Mandamus

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 family; (2) identify and describe a variety of families; and, (3) to understand that families have
I
2 some similarities and some differences. (Exhibit 1 pg. 5). In addition, the material for first

3 graders in Lesson 9 has the instructor ask . "What do we know about families ?" Id., at pg.6.

4 "What do family members give or share with each other?" and "What responsibilities do family
5
members have?" Id. Further, Lesson 9 states: "If a student responds that one family in the book
6
is made up of a mother, a father and two children and a cat, you may acknowledge that some
7
families look like this, but also ask students for other examples of what a family can look like."
8
9 Id. An optional activity is: "Ask the students to draw a picture that looks different than their own"

10 Id. In the lesson summary, the teacher is to "Meinforce to students that in our school and in our
11 community there are many different types of families...." (Exhibit 1 pg. 8). It should be noted
12
that Lesson 9 shifts some of the standards up one grade level. For example, Lesson 9 has a second
13
grade lesson which specifically deals with parental responsibilities, e.g., "What do all
14
parents/caregivers need to do to take care of a baby?" (Exhibit 1, pg. 9) and "What is the parent's
15
16 responsibility in the care of a baby?" Id.

17 Second Grade: California's health education standards for second grade state: "Discuss

18 how to show respect for similarities and differences between and among individuals and groups."
19 (Mental, Emotional, and Social Health Standard 1.7.M for Grade Two). ). Exhibit 5, at pg.12
20
The goal of the reading book / used in the second grade Lesson 9 curriculum is described as
21
follows: "Allowing the students to respond and interact with one another will help them to begin
22
to discuss and respect different types of families." (Exhibit 1, pg. 9). One of the educational
23
24 rubrics for second graders is for them to "identify alternative types of family structures" and "[t]o

25
26
And Tango Makes Three, P. Parnell, J. Richardson, illustrated by H. Cole, Simon & Schuster
27 Children's Publishing, ISBN 0689878451, NY, NY, 20050.
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Motion for Writ of Mandamus
• • •

be able to understand that all families have similarities in that they love and care for their young."
1
2 Id. Under lesson summary, it states: "Reinforce to students that in our school and community
3 there are many varying family structures." Id., at pg. 12. The section on reflection says, "Reflect

4 upon what is most important in a family is not who makes up the family but how they care for and
5
love each other...." Id.
6
Third Grade: "Demonstrate the ability to support and respect people with differences."
7
(Mental, Emotional, and Social Health Standard 8 3 M for Grade Three). Exhibit 5 at pg.16.
8
9 The objectives of Lesson 9's Grade 3 materials are as follows: "[1] These class meetings

10 will expand students' knowledge regarding all types of family structures. [2] The class meeting

11 will also assist students in developing sensitivity to gay and lesbian family structures. [3] Respect
12
and tolerance for every type of family is important and expected." (Exhibit 1, pg. 13). The lesson
13
purpose also closely follows California's content standards, i.e., "To develop vocabulary related to
14 •
family diversity... To talk about their own families and to learn about other families. To be able
15
16 to describe different family structures in a respectful way." Id. Further, the lesson states: "1.

17 Discuss with the students that they will be viewing the film 'That's a Family' in which they may

18 see a 'mirror' of their own family. Or, like looking through a window, they get a glimpse of the
19 many different types of loving family structures." Id., at 14. Lesson 9 for third grade ends with:
20
"All types of families should be respected." Id., at 16.
21
Fourth Grade: "Examine the effects of bullying and harassment on others." (Injury
22
Prevention and Safety Standard 1.4.8 for Grade Four). Exhibit 5 at pg.19.
23
24 The title for the fourth grade lesson is "Developing Empathy & Being an Ally." Exhibit 1, a

25 pg. 17. The three purposes identified in the lesson are: "[1] Students will be able to identify ways
26 in which name calling is hurtful. [2] Students will learn the importance of being able to interrupt
27
28
Motion for Writ of Mandamus

10
• • '

or stop name calling. [3] Students will be able to identify helpful strategies in order to become an
1
2 ally to another person." Id. On the next page, Lesson 9 states: "What hurts your feelings" Id. at

3 pg. 18. The activity in the lesson includes the instructor asking, "How do you think Robert feels
4 when he hears people say things like, 'this is gay' or 'You're so gay?" Id.5 The fourth graders are

then led in a discussion about whether they "have ever felt similar to how they imagined Robert
6
felt." Id. at pg. 19.
7
Fifth Grade: "Recognize that there are individual differences in growth and development,
8
9 physical appearance, and gender roles." (Growth, Development, and Sexual Health Standard

10 1.6.G for Grade Five). Exhibit 5 at pg.25

11 The title of the fifth grade lesson is "Discussing Stereotypes, including LGBT." Exhibit
12
pg. 23. The lesson purposes are as follows: "[I] To define the word Stereotype. [2] To learn that
13
LGBT people are represented among all races, genders, religions, socio-economic classes and
14
professions. [3] To identify stereotypes about lesbian, gay, bisexual and transgender people. [4] T
15
16 learn that LGBT people have made important contributions within the United States and beyond."

17 Id. The vocabulary section includes the following words: different, similar, and transgender. Id.

18 30-31.
19 In view the content of the Lesson 9 curriculum, as well as the District's stated purpose for
20
the curriculum of the prevention of harassment, it is clear that Lesson 9 is consistent with Health
21
Ed Content Standards and thus falls within the parameters of what the State Board of Education
22
deems health education. From this it follows that the Petitioners have lawfully exercised their
23
24 rights to excuse their children from Lesson 9 pursuant to Educ.C. §51240 of the Education Code.

25
26 'Robert is the name of a boy who wrote an article entitled "My School Is Accepting — But Things
Could Be Better?" The article is a reading assignment given to the fourth graders. Robert
27 discusses bullying ( Exhibit 5 at pg. 21) and discrimination (Id. at pg. 22).
28
Motion for Writ of Mandamus

11
 III. The AUSD Board of Education lacked the legal capacity to circumvent Edud.C. §51240
1
2 The Superintendent informed the parents that their request to have their children excused

3 from Lesson 9 would not be granted because the AUSD Board of Education did not provide an

4 opt-out. Exhibit 4, pg. 1, 11. AUSD's position is without legal merit.

5
Since 1976, the Education Code has been a "permissive" statutory scheme whereby school
6
boards can undertake any program or activity so long as there is no law prohibiting the conduct.
7
Section 35160 of the Education Code states in part that "the governing board of any school district
8
9 may initiate and carry on any program, activity, or may otherwise act in any manner which is not

10 in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with

11 the purposes for which school districts are established." But a school board's authority is not
12 unlimited. "[A] school board may not initiate policies or programs in conflict with the law."
13
American Civil Rights Foundations v. Berkeley Unified School District (2009) 172 Cal App.4th
14
207, 216. (Emphasis added.)
15
The District's position need not detain the Court for long. Section 51240 of the Education
16
17 Code unequivocally requires that public schools allow parents to excuse their children from y

18 portion of health instruction which conflicts with religious training and beliefs. The fact that the
19 request by the President of the AUSD Board of Education to provide for an opt-out was rejected
20
by the Board (Exhibit 6, pg. 9,14) is not the conclusion of the matter. On this issue, parental
21
rights are established by statute rather than the Board of Education. As a result, AUSD lacked the
22
legal capacity to circumvent Educ.C. §51240.
23
24 CONCLUSION

25 Respondents simply did not take seriously their obligations under Educ.C. §51240. By
26 giving parents the opportunity to opt their children out of any part of health education classes that
27
28
Motion for Writ of Mandamus

12
 violate their religious beliefs, the State of California has recognized the importance of allowing
1
2 parents to choose the ideas that their children are exposed to within the scope of health instruction.

3 To that end, Educ.C. §51240 left no room for schools to exercise their own discretion as to what
4 moral beliefs would be worthy of opt-out protection. Therefore, when the parents directed school
5
officials to allow the Petitioners' children to be excused from Lesson 9, because it conflicted with
6
parental moral and religious teaching and training, Respondents' flat refusal to comply with the
7
Petitioners' opt-out requests is inconsistent with the purpose and plain text of the statute.
8
9 Therefore, the writ of mandate should issue.

10
11 By C■'-tL
12 Kevin T Snider
Matthew B. McReynolds
13 PACIFIC JUSTICE INSTITUTE
P.O. Box 276600
14 Sacramento, CA 95827
Tel. (916) 857-6900
15 Fax (916) 857-6902
16 kevinsnider@nacificiustice.org
mattincrevnoldsApacificjustice.org
17
Attorneys for Petitioners
18
19
20
21
22
23
24
25
26
27
28.
Motion for Writ of Mandamus

13
 C ae CC 11 r e_ e c-e. A eic ts

e )(Cep re tr)

eK1(1.19,
 BOARD OF EDUCATION
May 26,2009
Alameda City Hall— Council Chambers
2263 Santa Clara Avenue
Alameda, CA

ADOPTED MINUTES

REGULAR MEETING - The regular meeting of the Board of Education was held on the date and place
mentioned above.

CALL TO ORDER - The meeting was called to order by President McMahon at 5:07 PM.

PRESENT: Jensen, McMahon, Mooney, Spencer, Tam

ABSENT: None.

PUBLIC COMMENT: None at this time.

ADJOURN TO CLOSED SESSION: By President McMahon at 5:07 PM to discuss Public Employee

Discipline/Dismissal/Release; Conference with Labor negotiator Laurie McLachlan-Fry: AEA, CSEA,
ACSA: Conference with Legal Counsel Anticipated Litigation — Significant Exposure to Litigation
Pursuant to Subdivision (b) of Section 54956.9 (3 cases).

RECONVENE TO PUBLIC SESSION: by President McMahon at 6:30 PM.

CALL TO ORDER / PLEDGE OF ALLEGIANCE: Paden Elementary School students and Principal.

INTRODUCTION OF BOARD MEMBERS & STAFF: Board Members and staff present introduced
themselves.

ADOPTION OF AGENDA/APPROVAL OF CONSENT CALENDAR

MOTION: Member Spencer SECONDED: Member Mooney

That the Board of Education adopt the agenda with the following change: pull item E-7 and consider as F-
7.

AYES: Jensen, McMahon, Mooney, Spencer, Tam

NOES: None
MOTION CARRIED

CONSENT CALENDAR — The Board of Education approved the following consent items (such items are
identified by a plus (+) mark in the body of these minutes):
+Certificated Personnel Actions: The Board of Education 1 retirement (Wall).
+Classifier/ Personnel Actions: The Board of Education approved 8 appointments (Garcia, Jones,
Johnson, Koneffklatt, Perez, Flores, Akalu, Roundtree); I change of status (Timmons, Jr.)
+Approval of Bill Warrants and Payroll Registers: The Board approved warrants numbered 852932-
852937, 852939-876528.
+Resolution No. 09-0030 Approval of Budget Transfers, Increases, Decreases
+Part-Time Employment with Full Retirement Credit
+California High School Exit Exam Waiver for Students with Special Needs
+One Time Site Discretionary Funding proposals
 •
Ms. Wyatt introduced Mr. Dalton and some of the student filmmakers, who shared their short film via
DVD presentation.

Approval of Caring Schools Curriculum Addressing Issues of Sexual Orientation/Gender Identity

Margie Sherratt, Substitute Assistant Superintendent, introduced the item. The goal of creating safe
schools is to ensure that all students, regardless of their sexual orientation or the sexual orientation of
their family members, feel safe in our schools and that all students have equal access to a quality
education. This work is in accordance with legal mandates AB 537 Student Safety & Violence Prevention
Act of 200 and Board Policy 5145.3 Nondiscrimination/harassment, Ed Code Section 2000, and Penal
Code Section 422.6(A). These laws and policies mandate that public schools prevent discrimination and
harassment based on all legally protected categories.

In response to these issues, the District provided elementary staff training in October 2007 and created a
Safe Schools team of teachers to address implementation of addressing inclusiveness, family diversity,
and anti-bullying/anti-slurs in conjunction with the Caring Schools Community curriculum. In October
2008, secondary staff underwent training with the focus on refining current courses of study and
providing focused support for Gay Straight Alliance (GSA) student organizations.

Staff recommends the Board approve Lesson 9 of the Caring Schools Community curriculum which
addresses issues of inclusiveness specifically around lesbian, gay, bisexual, transgender (LGBT) and
family diversity. This lesson is prevention-oriented, as it identifies name calling and teasing as a precursor
to bullying

Ms. Sherratt introduced Jane Lee, Principal of BayFarm Elementary School, who provided background
information on her previous role as the District's Diversity Coordinator. Ms. Lee noted that the position
was created in response to the community around diversity issues and some racial conflict taking place in
the district. This work began in 1991, and "Team Diversity" was formed. Team Diversity was a group of
concerned citizens, community members, parents, teachers, staff and administrators who met regularly to
have conversations about what was going on within the city. In 1994, the group was charged with
conducting an audit. The comprehensive audit included focus groups of all kinds of different
stakeholders. As a result of the audit by an outside consulting group, there were five key areas identified
if AUSD was to systemically address isnues around diversity:

Student/staff/community relations
Curriculum
Instructional practices
Professional development
Hiring practices

One of the recommendations was to have leadership for this momentum to move forward; this is how the
Diversity Coordinator position was created in 1996. School sites used the Team Diversity work in their
plannings and assessments and in developing their school site plans.

The district identified a racial academic achievement gap, worked on a lot of different professional
development activities at various levels, and brought in different consultants to the Team Diversity
monthly forums for discussions.

Unfortunately, in 2002, funding and budget challenges came into play and the Diversity Coordinator
position was eliminated. Sustainability became more of a challenge and it was difficult for the work to
continue after 10 years in existence.
4
 111
Member Spencer asked how members of Team Diversity were selected and if they reflected the diversity
of the community. Ms. Lee noted that anyone could attend Team Diversity meetings, and that Team
Diversity itself was a volunteer group that represented a wide constituency.

Member Tam added he remembers participating in training as a teacher and an administrator and talking
about being inclusive of other ethnicities and cultures. Team Diversity also partnered with the City of
Alameda to go to a Museum of Tolerance and have discussions in regards to community forums, relating
to what each person had learned through the experience. Alameda Police Department participated in the
Tolerance Museum professional development training, as well.

Ms. Shen-att thanked Ms. Lee for providing Team Diversity background information. Ms. Sherratt again
reviewed the training plan, summer/fall work, and the Caring Schools Community lessons 1-8 guidelines.

Recommendations:
• Adopt the K-5 lesson 19 as a supplement to the Caring Schools Community curriculum
• Develop an instructional support guide to Caring Schools Community to include all of the protected
classes
• Develop and conduct a comprehensive evaluation of the Caring Schools Community curriculum
including the LGBT #9 lesson to be administered to teachers at the end of the first trimester of
2009/2010 school year
• From this evaluation, make recommendations to the Board for possible 2010 revision
• Provide a site-based evening workshop in the Fall 2009 for parents on the state of California and
AUSD harassment policies as well as zero tolerance for bullying

Representative speakers were selected from both sides of the issue and given the same amount of time to
address the Board of Education. Those opposed to the LGBT curriculum spoke first.

Sarah Kim, attorney and Alameda resident, addressed the Board and noted she has a petition signed by
468 Alameda residents. She shared the petition with the Board, but collected it back for fear of retaliation
against those who signed Ms Kim also provided an alternative resolution, and added that this curriculum
would expose the schools to legal liability. Staff has refused to include an opt-out provision, but e
has that health education must The state defines health education as all lessons on
"characteristics of families", "various roles and responsibilities", and "gender roles". This curriculum
falls within those definitions. The staff recommendation is inadequate. Let's work together to create
common

Aiesha Baldi, parent, has 5 children, 4 of whom attend AUSD schools. Ms. Baldi is a Muslim and co-
founder of the Islamic Center. Ms. Baldi shared an issue that a young Muslim girl experienced harassment
when trying to wear her head scarf to school. She was made fun of by other students, and as the school
year progressed, she began to wear her head scarf less and less and now does not wear the hijab to school
at all. Muslim children also experience bullying during Ramadan fasting, when they are forced to sit in
the cafeteria during lunch and watch other students eat. This curriculum would highlight differences in
beliefs. The Board needs to adopt something that will respect the differences. Muslim children have equal
rights to be protected. Instead of curriculum that excludes us, vote for K-12 common ground. Parents
need to have a say about what children are taught about homosexuality.

Deon Evans, Senior Pastor and parent, urged the Board to vote against adopting this curriculum. 70% of
the speakers who addressed the Board are opposed to the curriculum. Thos who vote against it aren't
prejudiced, but object to this highly controversial curriculum. This curriculum bullies all other protected
classes. If a child cannot read well and is asked to real aloud in front of their peers, this is bullying. If a
5
teacher says aloud that a studelts illegible writing and other children use it as playground fodder, this
is bullying Children are bullied most often because of race — double that of any other group. Shouldn't
that affect your priorities? You are sending the wrong message to minority children struggling with these
issues. You are saying that AUSD has given up on black children who are teased, bullied, and
marginalized beyond the other protected group. Suicide is not the issue among elementary aged children
in Alameda or even in Alameda County, and most of the suicides committed here are linked to mental
illness and not bullying. The facts do not conclude that our schools need this LGBT curriculum, but on-
site psychiatric help. No plantation politics. If this curriculum is adopted, there will be a strong reaction.
Instead of bringing us together, it will cause suspicion and alienation and generate recall petitions.

A representative group in support of adopting the curriculum were provided with equal speaking time.

Beth Komer, Alameda resident and teacher, noted that California Ed Code requires that teachers provide
a safe learning environment. This is one lesson among many designed to teach students how to work in a
community atmosphere. The need is real. This year, a student in my class wrote a list of hot girls and gay
boys on the bathroom wall. When the SRO and I questioned the student, it was obvious that the student
knew the correct definition of the word "gay". The parents were shocked that the student had even heard
of the word. The students named on the list were uncomfortable and distressed for several days.
Incidences in elementary school have lifelong impacts on all of us.

Teachers deal with students all day and intervene in arguments on the playground, in the lunchtime, after
class, etc. Bullying and respect need to be addressed. Our job as teachers and administrators is to make
sure all students feel safe and supported. This curriculum was designed simply to support teachers and
give them a common vocabulary and is age appropriate.

I am proud to work at a school named for a courageous 6 year-old girl. When Ruby Bridges visited our
school, she told students that to her, they were all a bunch of M&M's — different colored shells on the
outside, but the same sweet chocolate on the inside. When Ruby Bridges was in school, there were brave
Caucasian families who stood with her. It is the responsibility of all of us to adopt and put into practice
this curriculum that will help teachers and students work to overcome injustice in our society today.

Victoria Forrester, former teacher with 22 years experience in AUSD, noted that history repeats itself.
Ms. Forrester taught for 16 years at Earhart 12 years ago, and allowed a discussion in class about the
Ellen Degeneres "coming out" television show episode. One family objected, and parents asked for the
revocation of her teaching credential because the word "gay" was used in the classroom. Currently, Ms.
Forrester is the Principal of Roosevelt School in San Leandro, which already has the Safe
_ Schools
curriculum taught in every elementary school and writing curriculum in middle school. There is a clear
difference in what students are learning. Ask the Roosevelt community about what this curriculum means
to them. Make the decision to not let history repeat itself.

Rob Bonici,parent and alto ,- ' oted that rovid . notification and anciait conflicts with the goal of
the curriculum. Notification could be used as an opt-out provision or parents who will just keep their
children at home when the curriculum is being taught. The lesson will not be learned, quite possibly by
those who need it the most. Notification teaches children that LGBT issues are so problematic and
dangerous that parents have to be notified before it can be taught. Notification is self-defeating in the case
of anytime lessons and teachable moments, and is potentially discriminatory. There is no notice required
when teachers talk about any other family constitution. By using sexual orientation as the basis, the
district is open to legal exposure.

Rebecca Holder, Alameda Multi-Cultural Center, commended the district on the curriculum and supports
strengthening it. More needs to be done to prevent bullying, that's what this is about. We should not block
6
 • •
a lesson plan that addresses the human right to safety. True diversity includes everyone; we can't say
we're for diversity, except for this group or that group. This lesson plan is part of the change process
better for everyone. It's not sex ed — it's violence prevention that creates a safe place without fear to be
ourselves no matter what your race, ethnic background, gender, economics, etc.

The Native American value system is one of inclusion. All life is to be honored and respected. We are all
connected and here to help each other. Let us care so deeply about the bullying of another that we jump at
the opportunity to diminish the suffering of our LGBT students. We have a lot of work to do, but this is a
starting point.

David Gunderman, Alameda resident, noted he feels strongly about religious and personal rights, but the
playing field must be fair for all points of view. We need to co-exist. Anyone can hold any viewpoint, but
institutionally, the district must enforce fairness for all and the care of all children. The playing field is
not fair for LGBT issues. Heterosexual families exist everywhere in curriculum. Is notification required
when discussing heterosexual family units? Why not? Can you opt out of learning about one group and
not another? What message does that send? Does one point of view trump another? What about
creationism vs evolution? This is not about morality, but reality. Religion is deeply personal, but when
it's used to oppress, it must be checked.

Brian Harris, student, noted he is homosexual and shared his experience at ACLC. At first, there was no
trouble from fellow learners. Then when the new group of students came in, the insults began. He was
harassed by other students. This curriculum is necessary to stop other students from being tortured in the
same way. Some members have said the curriculum gives special rights to LGBT people. If this is true,
should we stop teaching about civil rights because it gives special rights to blacks? Stop teaching about
the Holocaust because it gives special rights to Jews? Students have a right to know that LGBT people
exist. We are not promoting a lifestyle — the curriculum is 45 minutes out of the school year. Please
approve this much-needed curriculum.

Member Jensen asked Ms. Sherratt if districts were required to adopt anti-bullying curriculum. Ms.
Sherratt noted yes, they are. Member Jensen asked if lesson #9 was the only lesson that specifically
addresses one of the protected classes. Ms. Sherratt noted implicitly, but not explicitly. There are lessons
in social studies and language arts that address and reference other cultures. Curriculum covers a wide
variety of cultures within our community and our world. In middle school, they study European history,
religions of the world, as well as Africa as a culture.

Member Mooney asked Ms. Sherratt to read the additional 2 definitions to the curriculum.
Ms. Sherratt noted the definitions of bully and transgender were added:

Bully — one who talks or acts in a mean-spirited way to another person

Transgender — a person whose gender identity and/or expression is different from cultural expectations
based on the sex they were assigned at birth

Member Spencer noted there have been a lot of people talking about their children getting bullied for all
kinds of reasons, and now we're planning to introduce curriculum that proposed this contradictory
data.. .if in fact those children express their religious belief in a classroom discussion, how will we know
that they will be safe at our schools?

Superintendent Vital noted in professional development of teachers, there is an FAQ and Q&A script of
what a teacher might say when addressing a specific question. Anything having to do with sex, the
students are referred back to their families. In addition, students have their rights under free speech to
respectfully disagree. Part of the training for teachers is to support all students in their classroom. We are
7
 •
recommending evaluating the•ng Schools Curriculum to see if it is really working and if it meets our
needs.

What teachers have is the Caring Schools Community box of tools, suggestions, and activities, applicable
to many situations. We are recommending developing a supplemental guide to give further support to
teachers in working through all of the protected classes. It is clear from the community dialogue that we
need to do more for all groups.

Member Spencer reiterated that studies show our students are bullied most for racism, so why are we
looking at specifically LGBT at this time? The law says we must provide safe schools for all of our
students, but the lessons 1-8 do not specify any class. Lesson #9 specifically addresses LGBT, which is
contrary to the spirit of the law. Why aren't teachers asking for help regarding race if it's reported by
students to be the basis of harassment?

Ms. Sherratt noted part of the issue with LGBT is that it is more acceptable to use the term "gay" in a
derogatory way than other terms associated with other protected classes. Superintendent Vital noted
again, there will be a supplemental guide developed and professional development. Teachers asked for
these tools, and we want to support them. In the evaluation piece, we need to be very clear on how we're
measuring whether or not the curriculum is reducing bullying and teasing, etc.

Member Spencer added she had received correspondence from a mixed race family who objected to the
"Who's in a Family" animal book portraying the mixed-race family as dogs. Why don't we use books
with actual people in them in stead of animals?

Gail Rossiter, Principal of Fraialdin Elementary School, noted that in elementary school, students readily
identify with animals and make an easy transition to applying that knowledge to people.

Member Spencer asked if other lessons would be created to address other specific protected classes before
September Superintendent Vital responded that the proposed supplemental guide would address other
protected class, and the evaluation of the curriculum would look at whether or not its meeting our needs.
The goal is not to develop more lessons. Caring Schools Curriculum is a framework curriculum that deals
with protected classes implicitly rather than explicitly.

Gail Rossiter added one of the initial premises we're working under is that in none of our curriculum is
gender identify and LGBT families seen, while other classes are. That is why we felt it was important to
add it somewhere, and it seemed to be a good fit with Caring Schools Community. It is not to the
exclusion of any other group.

Member Jensen noted there are LGBT teachers and staff in the district. If a student's religious beliefs
make them uncomfortable in this situation, is the student allowed to transfer to another classroom? Laurie
McLachlan-Fry, Chief Human Resources Officer, noted that there is no such policy and place.

Member Spencer encouraged staff to review San Francisco's anti-bullying, progressive discipline policy.

Member Jensen asked about parent notification. Superintendent Vital noted at the beginning of the year,
the practice has been to share with families in school packets or back to school night or similar, which
new materials will be used this year so families are clear about what's being taught when.

Member Tam suggested revising the Team Diversity findings and studies to review. Superintendent Vital
agreed, adding that we need to look at how we take diversity issues of equity to action.

8
Member Mooney stated he is ready to support the Superintendent's recommendation, and read the K-5
vocabulary words. Member Mooney noted he doesn't find the vocabulary words objectionable at all, and
would like to also look at the San Francisco curriculum. Perhaps it is one we would be interested in using
in the future and expanding upon as we talk about implementation, evaluation, and assessment.

Member Spencer added we have an achievement gap with African American students, who are
significantly farther behind that our other students. We do not have curriculum that specificall oes to
reducing bullying for other protected classes. What message does that send? We have left our African
American studenilbehind, academically. Member Spencer noted concern about not offering direct
curriculum to reduce bullisagainst
ii other protected classes concurrently when we're being asked to
implement this one. Member Mooney said he doesn't think _ not moving forWard is the—answer at t is time.
Member Spencer asked about those students expressing a different opinion due to their religious beliefs.
This will increase harassment against those already marginalized, and we are not being sensitive to their
needs. Are we saying their beliefs are wrong? Religion is another protected group, and they need some
level of protection when we're teaching something that is contrary to their beliefs. Member Mooney noted
we can have our own beliefs, but they are to be discussed at home. This is not a moral issue. You can't
exclude because you happen to have a religious belief against this group. The district is charged with
protecting all students, and that includes LGBT students, regardless of whether or not other groups
disagree with the lifestyle.

President McMahon noted as currently proposed, he cannotsimport the current recommendation. The
issue right now, as proposed, is that the curriculum deals with a certain set of individuals when in fact, a
curriculum guide is being proposed — a supplemental guide that constitutes curriculum that is not being
approved as an overall package. President McMahon noted he is leery of relying on that process to take
place in a balanced way, and cannot support the recommendation as put forth. Mernber_McMahon added
he is willing,in order to move the curriculum forward, adopting lessonjivLid_s t an t-out for 2009 only!,
upon which time evaluation would give us the opportuSty to see what effect it has on the curriculum.

Member Tam noted the issue focuses on inclusiveness. We still have a long journey in regards to building
an inclusive community. This work really began back in 1992 with Team Diversity addressing equity.
Currently, we need to continue to have this dialogue. We need to begin somewhere. Staff took 2 years to
look at what the charge was — create a lesson plan. We are talking about 1 lesson plan per grade level.
Member Tam noted he would rather move forward, and encouraged the Superintendent to look at and
evaluate and be really critical with regards to what we need to do differently and how we can be
supportive.

Member Spencer stated without representing all classes, there should be an opt-out offered.

MOTION: Member Jensen SECONDED: Member Mooney

That the Board approve Caring Schools Curriculu Addressing Issues of Sexual Orientation/Gender
Identity as proposed.

AYES: Jensen, Mooney, Tam

NOES: McMahon, Spencer
MOTION CARRIED
9
 •
Member Jensen read a prepared statement:

"This is the most divisive and contentious issue that I have faced during more than seven years as a
school board member. Many of my friends, people who I have grown up with, and respected community
members are on opposite sides of the debate. And all who have an opinion have a deep felt and profound
need for closure. That is because we are facing a challenge as a society — a moral challenge similar to
many challenges we have overcome in the past. As stated eloquently by Chai Feldblum, Georgetown
Law School Professor and founder of the Moral Values Project, said "the challenge for us as a society is
to ensure the full integration of gay people into society, while acknowledging the liberty of those who
believe homosexuality is sinful."

This curriculum is a small step towards doing that. We are not telling anyone what to think. We are
letting children know that gay people exist and they deserve to be treated with respect, regardless of
whether or not you believe that homosexuality is acceptable.

There are many deeply held and persuasive arguments against the curriculum, one being a certainty that
sharing information about LGBT families will create an atmosphere of hostility towards students who do
not believe that those families are acceptable. That children who are taught by their parents that
homosexuality is not OK will be forced to argue against their beliefs because of these lessons. To that I
suggest that in our District we teach a variety of subjects that may contradict other lessons students
receive at home or elsewhere. For example, we teach children that guns in school are not OK, but that
doesn't mean that children of parents who belong to the NRA are ostracized. We teach about evolution
but we don't ridicule children who believe in creation.

Another argument is that the lessons are not necessary because bullying in our schools won't stop.
Another way of saying that, to my mind, is to suggest that we should not do anything to make LGBT
individuals or their children feel safe until we are certain that all other forms of bullying are eliminated.
That leads us to the protected classes. Is it appropriate to adopt these lessons without including
descriptive lessons about all protected classes?

Religion is one. What if a student wants to know whether the earth was 'created in a day? Or who was
Genghis Khan? Or whether dinosaurs were allowed on Noah's Ark?

What about ethnicity? Students may ask why is there fighting on the West Bank? Or why no other
children would go to school with Ruby Bridges? Or where is Taiwan?

Similarly, teachers may face questions from students about gender and disability stereotypes. What
would a teacher say if a child asks why Hitler considered mentally retarded people to be expendable ? Or
why women are still not allowed to vote in some countries?

The answer is that teachers have information to share with students about all of those protected classes.
Our classrooms have books about Marie Curie, Helen Keller, Ray Charles, Henry the 8th, and Adolph
Hitler. Our schools celebrate Martin Luther King Jr. Day and Chinese New Year and Cinco de Mayo.
And our teachers have lesson plans and projects to teach students about immigration, slavery, disabilities,
religion and the struggles of diverse groups of people.

Since there is information available to students about all other protected class, then this is an issue of not
talking about only one. Teachers can point to Martin Luther King Jr. when a white student makes a
derogatory comment about a student with dark skin, but that teacher can't provide any explanation to
Mary when she makes fun of Joey because he has 2 moms. Shall we give teachers books, lessons,
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projects and other tools to answer students questions about religion, gender, disability and ethnicity, but
have them tell students that questions about gender identity can only be answered by parents? I disagree.

I disagree. One of the roles of the teacher is to answer questions. This curriculum was developed to
support teachers in answering some questions. To those who would prefer that teachers tell the student to
go home and ask their parents what the answer to the question is I say that is not education. That is
unacceptable.

Finally, I agree with those who oppose the curriculum when they say that it is their job to teach their
children about VALUES. Children who come to public school have been informed by their parents and
their families. They come to school to learn, and what they learn is that the world they live in now has
been shaped by dynamic values over the course of history. As students take on the study of English,
history, science and other subjects they will be learning about the values of others.

I support this curriculum precisely because it is NOT about values. I support these lessons because I
believe that it IS the role of educators to give students tools to tolerate and respect those with values that
are different from their own.
I began my comments with a quote and now I'll end with one. Earlier this month President Obama
addressed the graduating class of Notre Dame, in an environment of hostility and separation similar to the
one that has arisen over this issue in Alameda. In urging people to respect each others' values, President
Obama said "For if there is one law that we can be most certain of, it is the law that binds people of all
faiths and no faith together. It is no coincidence that it exists in Christianity and Judaism; in Islam and
Hinduism; in Buddhism and humanism. It is, of course, the Golden Rule - the call to "treat one another as
we wish to be treated."

That is all that we are attempting to do, to teach students the Golden Rule so that they can all feel safe and
supported in our schools."

Member Tam noted that with Team Diversity, each school was asked to create a diversity plan. If there is
still a copy around, we need to revisit these plans and see whether or not things have been implemented.

Member Jensen noted she appreciates some of the points brought up by Member Spencer and is
concerned that discrimination of other classes may occur. We need to have more concrete requirements
and should be collecting more specific information, like incident reports so we get a more accurate
account of what actually happens at the sites.

With regard to the supplemental guide, Member Spencer asked how community members could provide
input. Superintendent Vital noted that more information will be provided once staff gets to that point in
the work. Member Spencer added it is important we reach out to those who expressed so much concerned
— they need to be included in the process. Superintendent Vital added that staff will follow-up.

Report on Governor's Budget May Revise for Fiscal Year 2009/2010

Tim Rahill, Chief Financial Officer, introduced the item. Since the State Budget Propositions from the
5/19/09 State Election have failed, the State is now looking at the worst-case budget scenario from the
Governor's May Revise. There are proposed major additional reductions to the budget for the current year
(2008/09) and the following year (2009/10).

If approved by the state legislature and signed by the Governor, the may Revise could reduce ongoing
funding to the Alameda Unified School District by $2.2M in 2008/09 and another ongoing reduction of
$200K in 2009/10. These amounts are "ballpark" estimates and will change as the state takes action to

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