Griswold v. Driscoll Ruling Upheld by Appeals Court


By Thomas C . Nash
Special to the Mirror-Spectator

BOSTON — A five-year legal tussle over a curriculum guide addressing the Armenian Genocide — and seeking to include deniers — may have finally ended last week, following a ruling from the First Circuit Court of Appeals that the First Amendment is not at issue.

The August 11 decision upheld US District Court Judge Mark L. Wolf’s June 2009 ruling that the challenge against the Massachusetts Department of Education’s curriculum guide on the Armenian Genocide could not go forward.

The suit, filed in October 2005 by the Assembly of Turkish American Associations (ATAA) alongside two high school teachers and a student, alleged the guide limited free speech by not including resources that presented “contra-genocide” viewpoints.

The legal battle began after William Schechter, a now-retired teacher at Lincoln- Sudbury High School, and one of his students, alongside Cambridge Rindge and Latin School teacher Lawrence Aaronson, raised issues with The Massachusetts Guide to Choosing and Using Curricular Materials on Genocide and Human Rights Issues, which includes teaching the Armenian Genocide as an established fact.

In March, lead attorney Harvey Silverglate argued before a three-judge panel — which included retired US Supreme Court Justice David Souter — that the curriculum amounted to a “21st-century library” and should be protected from censorship.

Souter, who authored the court’s opinion, rejected that argument, noting Silverglate “urged two competing metaphors upon us, with contrasting constitutional implications: that the Guide is a virtual school library established for the benefit of students as well as teachers; and its contrary, that the Guide is an element of the curriculum itself.”

“While neither figure of speech fits exactly,” Souter added, “we think classification of the Guide as a part of the state curriculum is the better choice.”

Souter’s opinion avoided addressing the issue of the Armenian Genocide — which both sides of the case referred to in arguments before the Appeals Court. Instead, Souter focused on whether the issue fell under free speech protection.

Referring to efforts by the Massachusetts State House to remove “contra-genocide” materials that had at one point been included, Souter noted: “The revisions to the Guide after its submission to legislative officials, even if made in response to political pressure, did not implicate the First Amendment.”

Silverglate would not comment on whether another appeal could be expected — although he did not rule out the possibility.

“I think this decision is not only wrong constitutionally, but is extraordinarily unwise in ways the panel doesn’t understand yet,” Silverglate said. “It has nothing to do with the Armenian Genocide.”

If the Appeals Court rejects a motion to hear the case before the full bench or a rehearing from the same panel, an appeal to the US Supreme Court is also possible. The motions are due two weeks and 90 days after the ruling, respectively.

Anthony Barsamian, communications director for the Armenian Assembly of America, which filed an amicus brief for the defense, said Souter’s input makes it unlikely the Supreme Court would choose to hear the case.

“The fact that Souter wrote this opinion indicates [the Supreme Court’s] thinking on this issue,” Barsamian said.

Assembly Board of Trustees counselor Van Z. Krikorian, who helped write the Assembly’s brief filed in the original hearing, was also confident in the ruling.

“The Court of Appeals’ decision is a major victory for sound education on the Armenian Genocide,” Krikorian said in a statement. “The Court defended free speech … and struck a blow to the spurious tactics used by genocide deniers to engage under the pretext of debate.”