Contention inside and outside as David Parker's civil rights lawsuit
begins in federal court.

Lawyers for school officials, ACLU, argue for dismissal of case -- claim that parents' rights
end at the schoolhouse door; Parker's lawyers fire back!

BOSTON, MA. (FEB. 7, 2007) Dozens of people - parents' rights supporters of the Parkers and Wirthlins, and also homosexual activists -- braved the freezing temperatures to come to the Joseph Moakley Federal Courthouse in South Boston for the opening salvo in David Parker's federal civil rights lawsuit against Lexington, MA school officials. It was clear from the attention this generated that this suit could have far-reaching national implications.

Complete report on David Parker incident and lawsuit.

About 30 people, including a handful of homosexual activists, demonstrated outside the courthouse. The others filled the courtroom during the nearly 2-hour hearing. (Unfortunately, cameras were not allowed in the courtroom.)

This initial hearing was to argue about whether a Motion to Dismiss this case, filed by the school system, should be granted by the judge. That would effectively kill the case, although it could be appealed. Thus, both sides were arguing the merits of that motion, and the judge must rule on it before the actual trial can begin.

David Parker was represented in the courtroom by attorneys Jeffrey Denner, Robert Sinsheimer, and Neil Tassel, of the high-profile firm Denner, Pellegrino LLP. Sinsheimer, a very experienced First Amendment specialist, presented the case before the judge. The Town of Lexington was represented by their city attorney, John Davis, of Peirce, Davis, Perritano, LLP, a Boston firm. Also there to argue against the Parkers were Sarah Wunsch of the American Civil Liberties Union (which, ironically, was arguing against Parker's civil liberties!) and Eben Krim of Proskauer Rose LLP, a Boston firm that does a lot of left-wing advocacy. Wunsch and Krim also wrote the amicus brief against Parker, which was submitted in September.

During the hearing, Judge Mark Wolf peppered the lawyers from both sides, one at a time, with questions about their arguments. First was Davis, then Sinsheimer, and then each was given a chance a respond to the other's assertions. Afterwards he allowed the ACLU lawyer to make some statements. Judge Wolfe has a reputation for being fair - that is, he's not a knee-jerk liberal like many federal judges in Boston. But he's not a knee-jerk conservative, either. His questions of both sides seemed equally penetrating.

Frightening to hear.

The basis of the arguments by the Lexington school officials was quite revealing about their core attitude about parents rights. Their first point was that the schools have a "legitimate state interest" - in fact a mandate - to teach what they call "diversity", which includes normalizing same-sex romantic relationships in the minds of elementary school children. The state must fight "discrimination on the basis of sexual orientation" in ways that "do not perpetuate stereotypes," they said. They brought up various Massachusetts Department of Education curriculum frameworks as well as the assertion that same-sex marriage is "legal" in Massachusetts. They submitted the homosexual romance book "King and King" to the judge as evidence of what they intend to continue teaching children. They also submitted the books "Who's in a Family" and "Molly's Family."

Their second point was that parents have no right to control what ideas the schools present to children, even elementary school children. Parents' only legitimate option, they said, is to take their children out of the public school system. The stressed that point repeatedly.

"Once I have elected to send my child to public school, my fundamental right does not allow me to direct what my child is exposed to in the public school," the lawyer said. Once you send your child to a public school, you give up your ability to control what is taught to your child, he asserted.

The ACLU lawyer also spoke, and said that because of the publicity surrounding this lawsuit, "teachers have been chilled - they are afraid to open their mouths on things they have been teaching." (Well, it's about time!) She added that "it is a tremendous bonus [for children in the schools] to be exposed to ideas different from their parents." She also said that "the exposure of children to ideas that their parents abhor" has nothing to do with a violation of religious freedom.

Fighting back.

The Parkers' lawyer, Robert Sinsheimer, gave a very passionate argument that the Parkers' First Amendment rights of freedom of religion are being terribly violated. And he attacked what he termed "the vulgar ultimatum" to simply "remove yourself and go somewhere else" if you don't like this action by the school system.

What the school system calls "diversity training" he bluntly called "indoctrination." He said, "American values rely on religion. Religious rights trump the secular. Parents have the right to direct the moral upbringing of their children." He added that "It is the constitution that protects the minority segment from the majority. . . The Parkers choose to send their children to the Lexington Public Schools to be part of the fabric of the community." And the constitution protects them," he said.

He made the point that this kind of teaching in the elementary grades was specifically intended to change a child's outlook of the world from what his parents taught him. The Parkers are religious people, he said, and "this is intended to take away the core of their existence." Interestingly, the judge responded that even to him this seems to be "brainwashing", but he later backed away from that, although Sinsheimer said he believed the term is accurate.

The troubling role of "case law".

A great deal of time was spent arguing about how "case law" affects how this case may or may not be decided. That is, the decisions and rulings of similar cases are dissected and analyzed. These rulings have nuances and directives that the lawyers use in their arguments - as if the rulings were actual law passed by the Legislature! A handful of such cases were brought up, in particular the infamous case Brown v. Hot Sexy & Safer Productions, from 1996, a lawsuit over an extremely vulgar and disgusting school-wide assembly at Chelmsford High School.

To watch this is extremely distressing. The Brown case, as we remember, was a horrible mess. The judge was extremely biased - a strident liberal - and the legal representation for the parents was, in some opinions, very weak, bordering on incompetent. The result was a nightmare of a ruling, which is now being used as if it were actual "law." As legal scholars are starting to point out, the Massachusetts Constitution expressly prohibits the concept of "case law" but it continues to be widely used.

Unfortunately, it would appear that strictly from a "case law" perspective - given some of the horrible and even bizarre rulings that have been handed down by courts - the Parkers would probably lose on those merits. That's the way it looked from here, although admittedly we're just laymen. Luckily, Parker's lawyers appear to be putting the force of their arguments into (what would appear to be) a higher authority: the US Constitution, as it is actually written. Interestingly, the judge seemed a bit surprised in the way that Parker's lawyers postured the US Constitution as actually trumping the "solid" path of case law. But he appeared to understand (being a federal judge, we should hope so).

This will certainly be a landmark case, you can be sure!

Covered by media:

As in the past, this attracted the Boston media. TV crews were sent to the courthouse by Ch. 7, Ch. 5, New England Cable News (NECN), and (we believe) Ch. 4. The Associated Press sent an article around the country. The Boston Globe had a big photo the next day, the and the Herald had an article, as well as other media.

View the NECN TV video here.

Ruling from judge expected reasonably soon.

The next step is a brief by David Parker's attorneys to be delivered on Wednesday, Feb. 14. People familiar with Judge Mark Wolf have told us that he usually announces a decision within three or four weeks of a hearing. That's what is expected this time.