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4/24/2009 - 2-10-09 Letter to Huntsville City Board of Education

SOUTHEAST LAW INSTITUTE™ 1200 Corporate Drive, Suite 107

Highway 280 - Meadow Brook Corporate Park

Birmingham, Alabama 35242

Telephone: (205) 408-8893 E-mail:AEJ@SoutheastlawInstitute.org

Facsimile: (205) 408-8894 www.southeastlawinstitute.org

February 10, 2009

Doug C. Martinson, II, J.D. Topper Birney

President Huntsville City Board of Education

Huntsville City Board of Education 3400 O’Hara Road

309 Devon Circle Huntsville, AL 35801

Huntsville, AL 35802

Alta Morrison

Jennie Robinson, Ph.D. Huntsville City Board of Education

Huntsville City Board of Education 6711 Marsh Avenue

9412 Don’s Court Huntsville, AL 35806

Huntsville, AL 35803

Laurie McCaulley

Huntsville City Board of Education

313 South Plymouth Road

Huntsville, AL 35811

RE: A Lesson Before Dying

Freshman Summer Reading Requirement

Dear Board Members:

The Southeast Law Institute is a legal and public policy organization providing services on constitutional and public policy issues in public education and parental rights. We have been asked by parents who have students attending Huntsville City schools to comment on the required summer reading for ninth graders of the book A Lesson Before Dying.

Parents have objected to the sexual content and profanity in the book and as a result at least one principal has offered an alternative assignment to such objecting parents. Also, we understand many other Alabama public school systems offer a choice of reading assignment. Nevertheless, this still leaves at the mercy of school requirements many students whose parents are unaware of the illicit and, perhaps, illegal content of the book. We do not know at this time how many parents may have objected or intend to object, or what consequences may follow later when the problem becomes more widely known. It would seem to us, however, that the Huntsville City Board of Education (“Board”) would want to do the appropriate thing in the interest of the community, without forcing a constitutional or law enforcement issue.

Doug C. Martinson, II, J.D.

Jennie Robinson, Ph.D.

Laurie McCaulley

Topper Birney

Alta Morrison

Page 2

February 10, 2009

We do not contend that parents of public school students have the right to dictate pedagogical policies. The courts have reached a fairly certain, though not entirely complete and definite, consensus on that. We are not pressing that issue, since the issue involves only one book and it is not a major and pervasive problem for which punitive action would need to be taken.

More than anything, the issue is one of the Board following Alabama public policy and appropriately serving community standards. For the Board to do otherwise, ignores the very mission for which members have been elected.

We believe the main objection to the book is the pornographic content. For example:

“I needed Vivian closer to me than she was now, and I asked her if she wanted to dance. We left the table, I took her in my arms, and I could feel her breasts through her sweater, and I could feel her thighs though that plaid skirt, and now I felt good.”

A Lesson Before Dying, p. 30.

“I left her for a while, and when I came back I saw that she had moved farther down between the rows, where the cane would hide us better. She had taken off everything except her brassiere and slip. I took off everything except the heavy shirt, which I unbuttoned. Vivian raised her arms up and out to me as I lay down beside her.

I lay on my side and touched her brown nipples with my finger. Then I leaned over and kissed each tenderly, and raised up and looked at her. She was smiling at me. I went back and I passed my tongue over each and kissed each again and rubbed my chin over then. My beard must have been rough, because I could feel her drawing away some, but when I looked at her she was smiling again.”

Id. p. 108.

In recent years public officials have contended with the spread of sexually transmitted diseases and the increase in teen pregnancies. Many efforts have been taken to deal with this. For example, Section 16-40A-1, 1975 Code of Alabama, deals with public schools’ teaching of responsible sexual behavior. Section 16-40A-4 ends that chapter by saying that conduct “shall

Doug C. Martinson, II, J.D.

Jennie Robinson, Ph.D.

Laurie McCaulley

Topper Birney

Alta Morrison

Page 3

February 10, 2009

not be encouraged or proposed to public school children in such a manner as to indicate that they have a legitimate right to decide or choose illegal conduct.”

Similarly, criminal statutes have been passed to protect minors from improper sexual information. Section 13A-12-200.1, et sequel, 1975 Code of Alabama, is known as the Alabama Anti-obscenity Enforcement Act. It deals with the distribution of obscene materials and materials harmful to minors. It is the last category with which you should be concerned. Section 13A-12-200.1(11) defines harmful to minors as follows:

HARMFUL TO MINORS. The terms means:

“a. The average person applying contemporary community standards, would find that the material, taken as a whole, appeals to the prurient interest of minors; and

b. The material depicts or describes sexual conduct, breast nudity or genital nudity, in a way which is patently offensive to prevailing standards in the adult community with respect to which is suitable for minors; and

c. A reasonable person would find that the material, taken as a whole lack serious literary, artistic or scientific value for minors.”

A book is a “material” and a minor is a person under 18 years of age, according to the definitions of the section. Section 13A-12-200.5 provides that it is unlawful for any person to knowingly distribute to a minor material that is harmful to minors. To require reading of the book by school officials would fit under that prohibition.

Perhaps, there may be arguments that the book has serious literary or artistic value for minors. It has been critically reviewed and fairly widely used. No doubt it has some redeeming values and it may be that the book does not actually rise to the level of the criminal standard. But clearly, reading just those passages above, demonstrates the book violates the other provisions of what is harmful to minors by its verbal depiction of a number of prohibited things.

It would concern us that you, as elected officials, would parse definitions and

opinions so as to support a questionable book for a young and immature age group. We

believe clearly that the community standards in the City of Huntsville are against

Doug C. Martinson, II, J.D.

Jennie Robinson, Ph.D.

Laurie McCaulley

Topper Birney

Alta Morrison

Page 4

February 10, 2009

indoctrinating students in pornographic literature. There are many other alternatives available for summer reading for your intended pedagogical purposes without resorting to pornography and profanity.

Excusal of students who object may satisfy legal standards, but why offend the sensibilities of a majority of the parents who send their children to your schools? Often, parents opt out of public education and choose several of the varieties of nonpublic education because of this type thing. Why further alienate parents from public education and diminish the desirability of public education? More importantly, why expose impressionable young minds to such salacious literature?

We have also reviewed the August 8, 2008 letter you received from the National Coalition Against Censorship. The comparison of A Lesson Before Dying to the Bible, Shakespeare, Steinbeck, Hemingway, and others is ludicrous. While there may be some things in those works that are objectionable, no one has ever considered any of them to be pornography and certainly not to the extent that A Lesson Before Dying may appeal to the prurient interests of fifteen year olds.

The writers of the letter do not question the sincerity of the parents who object, but suggest that their views are not shared by all and they have no right to impose their view on others. I believe you would probably agree, if you are honest in your assessment, that the majority of your parents’ views would be the same for those who actually objected.

We are not aware of parents who wish their fifteen year old children to read pornography.

This is not a question of censorship. That is the red herring always used by librarian and libertarian activists. The signatories to the letter are commonly found in support of other pornography and signing on legal briefs before courts to allow the uncensored flow of pornography to all persons. It would not seem that the members of the Board, who are also citizens of the City of Huntsville, would want to align themselves with New York lawyers or activists for pornographic rights.

The community standards in Huntsville, Alabama are important. They are important to preserving the core values of the community. Myriad policies, programs and other efforts exist to protect children from youthful sexual activities. It seems strange to us that the Huntsville City Board of Education would even consider allowing a book that contained even brief references to illicit activity.

Doug C. Martinson, II, J.D.

Jennie Robinson, Ph.D.

Laurie McCaulley

Topper Birney

Alta Morrison

Page 5

February 10, 2009

Lawsuits are not always the answer to problems. Encouraging constructive colloquy on community concerns is the best way to handle sensitive problems. There probably are no more sensitive problems than the concern of parents for their children. As public servants, you are entrusted with their children for a significant portion of their day and their lives. We believe the right thing for you to do is to recognize the

responsibilities placed on you measured by community standards and select or identify books that will meet the pedagogical purposes you intend, without encouraging pubescent children to fanciful thoughts and, more dangerously, dangerous actions.

Yours very truly,

A. Eric Johnston

General Counsel

AEJ/pmm

cc: Ms. Gail Kiker, Huntsville City Board of Education

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