Griswold v. Driscoll

United States Court of Appeals
For the First Circuit

No. 09-2002

THEODORE GRISWOLD, ET AL.,

Plaintiffs, Appellants,

v.

DAVID P. DRISCOLL, ETC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Boudin, Circuit Judge,
Souter, Associate Justice,*
and Howard, Circuit Judge.

Harvey A. Silverglate, with whom Norman S. Zalkind, David
Duncan, and Zalkind, Rodriguez, Lunt & Duncan LLP were on brief,
for appellants.
William W. Porter, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and David Guberman, Assistant
Attorney General, were on brief, for the appellees.

August 11, 2010

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 SOUTER, Associate Justice. The issue is whether a

decision by the Commissioner of Elementary and Secondary Education

of Massachusetts to revise an advisory “curriculum guide” (by

deleting his own earlier revision) in response to political

pressure violated the First Amendment. We hold that it did not and

affirm the judgment of the district court.

The well-pleaded facts in the plaintiffs’ complaint,

taken as true, see Barrington Cove Ltd. P’ship v. R.I. Hous. &

Mortgage Fin. Corp., 246 F.3d 1, 4-5 (1st Cir. 2001), together with

documents attached and cited, see Stein v. Royal Bank of Canada,

239 F.3d 389, 392 (1st Cir. 2001), tell the following story. A

1998 Massachusetts statute required the State Board of Elementary

and Secondary Education to “formulate recommendations on curricular

material on genocide and human rights issues, and guidelines for

the teaching of such material.” 1998 Mass. Acts 1154. The law

instructed the Board to “consult with practicing [educators], as

well as experts knowledgeable in [such] issues” and provided a non-

exhaustive list of topics for possible consideration, including the

“Armenian genocide.” The final product was to be “filed” with

legislative officials “not later than March 1, 1999,” and made

“available to all school districts in the commonwealth on an

advisory basis.”

On January 15, 1999, the Commissioner, appellee David

Driscoll, circulated a draft of the “Massachusetts Guide to

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Choosing and Using Curricular Materials on Genocide and Human

Rights Issues” to members of the Board for review and comment. The

Commissioner is “the secretary to the board, its chief executive

officer and the chief state school officer for elementary and

secondary education,” but he is subject to the Board’s authority,

being removable by a majority vote. Mass. Gen. Laws ch. 15, § 1F.

Driscoll’s draft Guide explicitly referred to “the Armenian

genocide,” provided references to a number of relevant teaching

resources, and stated by way of “background information” that the

“Muslim Turkish Ottoman Empire destroyed large portions of its

Christian Armenian minority population” in the late nineteenth and

early twentieth centuries.

Four days after the draft Guide circulated, a local

Turkish cultural group asked Driscoll and the Board to revise the

Guide to present what they considered to be a more “objective study

of history” by including references to the “contra-genocide

perspective,” according to which the fate of Ottoman Armenians did

not reflect a policy of genocide. This group (along with others

representing different constituencies) also addressed the Board at

a public meeting held on January 26.

As a consequence, a number of changes were made to the

Guide, including the addition of citations to several resources

arguing the contra-genocide thesis and the deletion of the

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background information.1 The revised version of the Guide was

submitted to legislative officials on March 1, 1999, as the

statute directed. Driscoll’s cover letter indicated that the Board

had reviewed the Guide and voted to accept it at the January 26

meeting.2

Attempts to change the Guide did not stop. In June,

representatives of Armenian descendants in Massachusetts asked the

governor in a letter to remove references to pro-Turkish sources,

and before the month was out, Driscoll issued a second revised

version of the Guide.3 This new revision was shorn of “all

references to Turkish websites, except for [that of] the Turkish

Embassy,” in what the plaintiffs describe as an “obviou[s],” if

incomplete, attempt to “appease the political opposition to

anything appearing to be ‘Turkish.’” In response to the

1
A section of the Guide recommending “Selected Print
Resources for Teachers and High School Students” was also removed.
This section had recommended five resources in “Armenian Studies.”
2
The complaint alleges that the Board “voted to adopt the
Guide, as presented [at the January 26 meeting] with certain
alterations.” But recommendations for the additional contra-
genocide references were not made until the next month. It
therefore appears that specific references added to the revised
Guide were not reviewed by the Board but were rather simply later
approved by Driscoll.
3
This final version of the Guide is dated simply “June 1999,”
making it unclear whether the final revisions were made before or
after the June 12 letter to the governor. Nevertheless, the
plaintiffs allege that Driscoll “acted in response to political
pressure” by the Armenian group, a state politician who had written
to the Board in February (before the revised Guide with the contra-
genocide references was filed), and the governor.

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predictable complaint from Turkish groups, Driscoll and the

Chairman of the Board, appellee James E. Peyser, replied that the

legislative language required the Board to “address the Armenian

genocide and not to debate whether or not [it] occurred.” They

took the position, accordingly, that the Guide could not refer to

any source calling the genocide into question, including the

previously listed website of the Turkish embassy.

The most recent version of the Guide instructs that

“[c]urriculum, instruction, and classroom assessment about genocide

and human rights issues should be based on factual content aligned

with the material in the Massachusetts Curriculum Framework.” It

lists relevant “main topics” from the History and Social Science

Framework, and “subtopics” including the “Armenian Genocide.” The

Guide advises that “[a]lthough some [relevant] information . . . is

contained in textbooks, teachers wishing to explore these topics

must find further information from other sources,” and it concludes

with a list of organizations, presumably intended as possible

sources. The list includes The Children’s Museum in Boston,

Amnesty International, and the United Nations. Several Armenian

groups are listed; no Turkish organization is.

The appellants, a collection of students, parents,

teachers, and the Assembly of Turkish American Associations (ATAA,

one of the Turkish groups that had complained to Driscoll), filed

this suit in 2005. Their complaint alleged that revisions to the

Guide made after its submission to legislative officials (that is,

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the removal of the contra-genocide references) violated their First

Amendment rights to “inquire, teach and learn free from viewpoint

discrimination” (in the case of the students and parents) and to

speak (in the case of the ATAA, whose website was removed from the

revised Guide). The district court dismissed the complaint. The

court first held that ATAA’s claims were barred by the applicable

three-year statute of limitations, see Poy v. Boutselis, 352 F.3d

479, 483 (1st Cir. 2003), because the alleged violation of its

rights occurred in 1999 when its website was removed from the

Guide. The district court then held that the Guide was a form of

government speech and, as such, exempt from First Amendment

scrutiny. The court understood this conclusion to resolve

overlapping questions of both the individual plaintiffs’ standing

and the merits of their constitutional challenge. We affirm the

district court, although our reasoning differs slightly at times.

First, we agree with the district court that ATAA’s suit

is time-barred. ATAA does not claim a right to have its website

included in the Guide; it says, rather, that the website, once

included, could not be “excised to further a political agenda.”

The allegedly unconstitutional action therefore occurred in 1999

when the website was removed. The appellants’ subsequent refusal

to take further action to reverse that decision establishes neither

an ongoing policy and practice nor an independent act of

“excis[ion].” Cf. Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121,

131-32 (1st Cir. 2009).

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 Second, as for the issue of individual plaintiffs’

standing, we see this as a case in which the dispositive questions

of standing and statement of cognizable claim are difficult to

disentangle. See McConnell v. FEC, 540 U.S. 93, 227 (2003),

overruled on other grounds, Citizens United v. FEC, 130 S. Ct. 876

(2010); Warth v. Seldin, 422 U.S. 490, 500 (1975). If one sees the

complaint as pleading a First Amendment library claim that may or

may not ultimately be supported by evidence about the curriculum

guide, the opportunity for a distinct analysis of standing is

clear. But we think the equally straightforward reading is that of

a curriculum guide claim that should be treated like one about a

library, in which case pleading cognizable injury and stating a

cognizable claim resist distinction. We therefore think it prudent

to dispose of both standing and merits issues together.

The briefing and argument have 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, we think classification of the Guide as

part of the state curriculum is the better choice.

The library metaphor, if accepted, would subject the

decision to remove the references to contra-genocide material to

First Amendment review under Board of Education, Island Trees Union

Free School District No. 26 v. Pico, 457 U.S. 853 (1982). There,

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a local board of education instructed the school superintendent to

cull certain books from high school and junior high school

libraries under circumstances suggesting that the order was based

more on patriotism and religion than educational suitability.

Students brought an action claiming that the mandated removal

interfered with a First Amendment right of access to ideas free of

interference from political pressure exerted through administrative

authority above the school level. Id. at 857-59 (opinion of

Brennan, J.). A fragmented majority affirmed an appellate order

that the case proceed to trial, contrary to the district court’s

award of summary judgment to the board of education. A plurality

concluded that a school board could not remove books from a library

for the purpose of denying students access to ideas unpopular with

board members, and found the question of the board’s motivation for

the removal order (viewpoint politics vs. education quality) to be

a triable fact issue. Id. at 869-75. Pico’s rule of decision,

however, remains unclear; three members of the plurality recognized

and emphasized a student’s right to free enquiry in the library,

id. at 863-69, but Justice Blackmun disclaimed any reliance on

location and resorted to a more basic principle that a state may

not discriminate among ideas for partisan or political reasons, id.

at 878-79, and Justice White concurred in the judgment without

announcing any position on the substantive First Amendment claim,

id. at 883-84. But whatever special consideration is due to claims

of library censorship, that issue need not be resolved here, for

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even on the assumption that some version of the plurality view is

good law, this case would not fit within the plurality’s scheme of

library protection.

So far as it appears from the Pico opinions, books in the

school library were chosen by someone at the particular school, but

in any event not by the school district’s board of education. See

id. at 860 (opinion of Brennan, J.) (noting that one judge on the

Second Circuit panel “treated the case as involving an unusual and

irregular intervention in the school libraries’ operations by

persons not routinely concerned with such matters” (internal

quotation marks omitted)). The pressure to remove the books

considered offensive was exerted through the board against the

schools through procedures that might have been “highly irregular

and ad hoc,” id. at 875; that is, the schools were overruled by

superior administrative authority, in what appeared to be a

substitution of the customary process for determining school

library content. See id. at 874 (noting allegations that the board

“ignored . . . the views of librarians and teachers within the

. . . [s]chool system [and] the advice of the Superintendent of

Schools” (internal quotation marks omitted)). It is this fact of

improper interference from above that raised the specter of

“official suppression of ideas,” id. at 871 (emphasis omitted), and

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may also explain, in part, the plurality’s distinction between

removal and acquisition of library books, see, e.g., id. at 862.4

Here, the administrative structure through which external

force was brought to bear was different. We may assume for

argument that the Guide might be considered as a library of sorts

and that the political leverage exerted by the Armenian groups was

equivalent to the pressure brought by the parent group upon members

of the school board in Pico. See id. at 856. But the missing step

is the decisive act by a superior official overruling the authority

that determines content in the normal course (in this case, the

Board). According to the allegations, the governor and a state

senator high-handedly channeled the reaction of the Armenian

groups, but the revision dropping the contra-genocide references

was made by the same authority that included them earlier, the

Commissioner (and, moreover, appears to have been made before the

Guide was made available to school districts).5

4
Of course, the Pico plurality did not suggest that all
school board interference with library collections would be
improper. To the contrary, the plurality acknowledged that “local
school boards have a substantial legitimate role to play in the
determination of school library content,” and it identified several
“criteria that appear on their face to be permissible” bases for
school board action, “educational suitability, good taste,
relevance, and appropriateness to age and grade level.” 457 U.S.
at 869, 873 (internal quotation marks omitted). Pico provides no
ground for calling into question school board decisions to remove
library books based on such criteria, even if the decisions are
made through unusual procedures.
5
The plaintiffs allege that Commissioner Driscoll’s decision
to delete the contra-genocide references was never voted on by the
Board, but this fact does not distinguish it from the initial

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 Hence, to find a First Amendment entitlement by these

plaintiffs would be a quantum extension of even the three-judge

portion of the Pico plurality, regardless of any doctrinal effect

of Justice Blackmun’s or Justice White’s concurrences. We would

have to hold that any compliant response to an expression of

political opinion critical of a school library’s selection of books

would violate a First Amendment right to free enquiry on the part

of library patrons, and even if we limited such a rule to pressure

exerted by political office-holders, we would be acting beyond any

arguable authority of Pico.

Of course, merely calling the plaintiffs’ position a leap

from Pico and leaving it at that would beg the question whether we

should take the leap, but Pico addresses that issue in its explicit

proviso that, howevermuch discretion may be limited in the instance

of the library, where “the regime of voluntary inquiry . . . holds

sway,” a school board “might well defend [a] claim of absolute

discretion in matters of curriculum by reliance on their duty to

inculcate community values.” Id. at 869. Although the extent of

political autonomy in setting curriculum is not spelled out any

further in Pico, the seriousness of the plurality’s reservation of

decision to include the references. See supra n.2. Further, even
if the Board had approved the initial addition of the references,
the Commissioner is not the Board’s boss (in fact, he is answerable
to the Board), a fact that precludes any inference that the Board’s
original action was overridden in some way outside the authorized
or normal course in which source materials for teaching are
recommended by the state government.

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curricular autonomy free of review by a court for viewpoint

discrimination is underscored by three strands of Supreme Court

case law.

The first emphasizes the role of public schools in the

“preparation of individuals for participation as citizens, and in

the preservation of the values on which our society rests,” Ambach

v. Norwick, 441 U.S. 68, 76-77 (1979) (collecting cases); see also

Bethel Sch. Dist. No. 403 v. Fraser 478 U.S. 675, 681 (1986). The

second acknowledges that “[s]tates and local school boards are

generally afforded considerable discretion in operating public

schools,” Edwards v. Aguillard, 482 U.S. 578, 583 (1987), and that

federal courts “do not and cannot intervene in the resolution of

conflicts which arise in the daily operation of school systems and

which do not directly and sharply implicate basic constitutional

values,” Epperson v. Arkansas 393 U.S. 97, 104 (1968). And the

third is the developing body of law recognizing the government’s

authority to choose viewpoints when the government itself is

speaking. See, e.g., Pleasant Grove City v. Summum, 129 S. Ct.

1125 (2009).

When it comes to judicial supervision of school

curriculums, all three lines point in the same direction and

against extending the Pico plurality’s notion of non-interference

with school libraries as a constitutional basis for limiting the

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discretion of state authorities to set curriculum.6 Here there is

no denying that the State Board of Education may properly exercise

curricular discretion, and the only question on the motion to

dismiss is whether the pleadings allow for any doubt about the

status of the Guide as an element of curriculum. We think they do

not.

There are only two apparent arguments against treating

the Guide as curricular, that is, as a component of the

specifications that inform teachers about what to teach. First,

although the Guide describes itself as one for “choosing and using

curricular materials,” the Board has made it available for viewing

by students. But though students have access to the Guide (and its

text at one time spoke of it as referring to resources for

“students” as well as teachers),7 the overwhelmingly obvious point

6
We find our decision against extending Pico here to be in
line with the positions taken by at least two other Courts of
Appeals. See Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005)
(textbook selection); Downs v. L.A. Unified Sch. Dist., 228 F.3d
1003 (9th Cir. 2000) (content of school bulletin board). In both
of those cases, the courts viewed the speech at issue as government
speech. We need not decide that the Guide is government speech to
resolve this case, but we think that while the doctrine is still at
an adolescent stage of imprecision, see Summum, 129 S. Ct. at 1139
(Stevens, J., concurring) (describing it as “recently minted”), it
would run counter to the thrust of Supreme Court authority and our
own recent decision in Sutliffe v. Epping School District, 584 F.3d
314 (2009) (town website is government speech), to extend Pico’s
even less precise rule to the drafting and revision of school
curriculums.
7
The draft version of the Guide contained a section dedicated
to “selected print resources for teachers and high school
students.” That section does not appear in subsequent versions,
including the one submitted to legislative officials in March 1999.

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of the Guide is to provide teachers with a framework and sources of

materials for teaching “genocide and human rights issues” as a

subpart of the existing curriculum, for which no standard text or

anthology is assumed to be available or sufficient. Thus, the

Guide instructs that “[i]t is to be used in conjunction with” the

pre-existing curriculums for history, social science and language

arts and it highlights relevant portions of those curricular

specifications. The fact that students also have access to the

Guide and may use it as a resource on their own does not make it

any less part of the curriculum. In fact, as the Guide points out,

all Massachusetts curricular frameworks are on the Department of

Education’s website.

The second objection to the Guide’s classification as

curriculum lies in its failure to claim consistently that it

occupies the entire field of legitimate source material. Although

instruction is supposed to be “aligned” with a framework that

speaks of genocide, supra at 5, the terms of the Guide allow

teachers to look beyond it, and its directions to sources with a

particular point of view are not meant to declare other positions

out of bounds in study or discussion. It also speaks, in other

words, in keeping with open enquiry, which is the object of a

general library collection. But the disclaimer of exclusiveness,

even considered alone, does not untie the Guide from its curricular

purpose; it merely leaves the Guide saying in effect that, “This is

a good place to look when you flesh out topics in the state

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curriculum relating to genocide and human rights issues.” The

appellants’ argument, if adopted, might actually have the effect of

foreclosing future opportunities for open enquiry in the classroom.

A ruling in their favor might induce school boards to limit the

permissible materials for teaching any subject likely to generate

heat, simply to foreclose suits under Pico when they modified

references or specifications later. (The other alternative, of

course, would be never to make changes, but we do not see the

prospect of curricular ossification as any more comforting.)

Regardless, a non-exclusive guide to teachers does not resemble a

covert library whose shelves limit how far its intended student

patrons can range around on their own, and there is no apparent

reason to treat the Guide’s open-ended character as entailing a

limit on the Commonwealth’s discretion to modify it.

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. The judgment of

the district court is affirmed.

So ordered.

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