Texas Textbook Massacre: Can the Courts Do Anything?

By / 6.2.2010

Two weeks ago, the Texas School Board voted to ratify, 9-5, drastic textbook changes in their state primary education curriculum after a month of “open commentary” from the public. The changes revisit basic understandings of American history, social studies and economic thought in unprecedented ways.

In a purported attempt to neutralize the pervasive “liberal bias” supposedly present in public education, the Texas School Board approved the insertion and inflation of conservative ideals, values and historical icons (Jefferson Davis, Phyllis Schlafly, Joe McCarthy) in textbooks. The modifications also seek to downplay the intentional separation of church and state by emphasizing the Judeo-Christian faith of the nation’s founders.

At the time the changes were originally proposed, the 15-member Texas School Board boasted 10 Republicans, 7 of which were far-right conservatives. These conservatives undertook a concerted campaign to rewrite the textbook curriculum late last year. Ironically, as Jeremy Binckes notes, three board members who voted for the changes don’t even use the Texas public school system, opting instead for private or home schooling.

What’s most disconcerting about these alterations is the impact they may have on the national education system. As one of the nation’s largest purchasers of public textbooks, Texas’ revisions could alter the content of textbooks distributed nationwide.

What recourse do progressives have to beat back the encroaching, fanatic know-nothingism of the fringe right? Unfortunately, judicial mechanisms may prove unhelpful. Most courts have historically recognized the right of local education boards to create a standard curriculum of its own accord. These local boards are also granted broad discretion in adopting uniform textbooks for their respective public schools. Anyone seeking to judicially contest Texas’s revisions must make the case that the modifications infringe their constitutional rights. This isn’t an easy task.

In 1980, Indiana students brought a case in the 7th Circuit claiming that the removal of books from the school library and ensuing changes to the English curriculum violated their First Amendment protections of “freedom of speech” and the corresponding “freedom to hear.” The court dismissed these claims as failing to meet the constitutional threshold, and reminded the plaintiffs that the Constitution does not permit courts to interfere with the discretion of local authorities unless some really overt indoctrination is happening.

Two years later, the Supreme Court took up the issue of teachers banning books from school libraries. In a 5-4 vote, the majority concluded that banning of books did violate a student’s First Amendment rights. Justice Brennan warned school officials they could not remove books in an effort to restrict general access to political or social ideas that they disagreed with. However, in the same opinion, Justice Brennan also recognized that local boards have “absolute discretion in matters of curriculum.”

The Texas School Board’s amendments walk a fine line between these distinctions. Will their absolute authority over curriculum legally outweigh their obvious intent to revise history on the basis of their political views?

The jury’s still out. Consequently, states and progressives seeking to protect themselves from Texas’ influence will have to use other means. The New York Times reports that California legislators have drafted a bill requiring their state school boards ensure their own textbooks don’t show remnants of the Texas changes. In the same article, NAACP President Benjamin Jealous expressed an intention to fend off the Texas changes — although he doesn’t mention how.

As for Texas, the past month of public commentary has revealed the community’s outrage and concern. Despite their final ratification vote, there are early indications that progressives can take back the Texas School Board of Education from the hard right voting bloc. The former head of the textbook revision movement, Don McLeroy, lost his re-election bid to a more moderate Republican, and is no longer part of the school board. Fellow revisionist enthusiast, Cynthia Dunbar, is not seeking re-election. Absent any clear judicial recourse, Texan progressives will have to further capitalize on the backlash generated by the national spotlight and continue their efforts to overturn the instituted reforms.

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