ACLU Under Fire from Conservative Law Group

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Thursday, September 27, 2012

Stephen Beale, GoLocalProv News Contributor

The ACLU’s opposition to father-daughter dances is being questioned by a conservative law group that warns a ban on gender-specific events at Cranston public schools violates the constitutional rights of parents.

In a letter that became public only recently, the ACLU had claimed that father-daughter dances violate a federal statute, known as Title IX, which outlaws discrimination on the basis of sex in any school that receives federal funds. But, in a response obtained by GoLocalProv, the Stephen Hopkins Center for Civil Rights says neither the federal law nor its state version applies to father-daughter dances in Cranston because they are sponsored by private parent-teacher organizations (PTOs).

National expert: PTOs exempt from discrimination law

Cranston school officials went overboard in their efforts to address the concerns raised by the ACLU, the Hopkins Center says.

“[W]e fear that out of an overabundance of caution, the school district has gone beyond protecting the civil rights of a member of the community,” the group states in its letter. “Rather, it appears that the district is protecting the sensibilities of a parent and child who do not fit the mold of these traditional events. But to abridge the civil rights of the majority to advance the statutory prerogatives of even a stigmatized minority is a legal bridge too far.”

A national expert in the law and parent-teacher organizations agreed that private organizations are not subject to the same restrictions as a public school—even if they are using a school facility for an event.

Most parent teacher organizations, known as PTOs, are independent organizations with no formal, legal ties to a public school, said Sandra Pfau Englund, a Virginia-based attorney and founder of Parent Booster USA. “Title IX exempts any organization not receiving federal funds,” Englund said. “I don’t think it applies and I don’t think that’s a good rationale for not having father-daughter dances.”

The ACLU had argued that the PTO’s event was an official school function because event notices were sent home with school approval and the PTO was granted space to promote itself and its activities on the school bulletin board and Web site.

But all that does not make the PTO part of the public school, Englund said. “From a legal standpoint the PTO is still a separate legal entity,” she said.

Group says ACLU should not ‘dictate policy’

Ironically, in its effort to avoid yet another costly legal battle with the ACLU, the lead attorney for the Hopkins Center said the Cranston School Department has only succeeded in making itself vulnerable to lawsuits from parents whose constitutional rights have been violated by banning father-daughter dances and similar events, such as mother-son baseball games.

That ban runs afoul of the First Amendment rule against discriminating against viewpoints, said Matthew Fabisch, the general counsel for the Hopkins Center. Views about traditional family roles and the benefits of a father-daughter dance are facing discrimination by the Cranston School District, according to Fabisch.

He said his group has received inquiries from parents about their legal options, but so far no one has committed to being a plaintiff in a lawsuit.

Since PTOs exist to support public schools, Fabisch doubts that any one of those groups would come forward to join a lawsuit. “At the same time, we’re not going to stand by and let any private organization dictate policy to Cranston school parents, especially when that policy is unconstitutional,” he said. (Fabisch noted that the Hopkins Center is not always at odds with the ACLU; on some issues, the two groups are broadly in agreement.)

Englund, however, is not convinced that constitutional rights are at stake: public schools, she said, have the flexibility to decide what events why will and will not allow in their buildings. “I’m not sure that one stands up in court, but it’s an interesting argument,” she said.

Federal exemption overlooked in Cranston?

Even if Title IX does apply—and the constitutional concerns that override Title IX are not valid—the federal statute has an explicit exemption for father-daughter dances. Specifically, the law states that public schools can allow the dances to take place as long as “reasonably comparable activities” for students of the other sex are provided.

Having a mother-son baseball game is not “reasonably comparable” to a father daughter dance, the ACLU said, because it violates the spirit of the federal law, which was intended on ending discrimination on the basis of sex.

But the Hopkins Center says there is no legal standard for determining what constitutes a reasonably comparable activity. “We cannot see that any thoughtful district could not conclude that the purpose of the exemption is to protect the traditional space for gender specific parent-child activities, not to introduce the child to dance or baseball,” the group states.

ACLU doesn’t back down

Rhode Island ACLU Executive Director Steven Brown issued this response to the Hopkins Center letter yesterday:

“It does nothing to change our analysis,” Brown wrote in an e-mail. “On the issue of Title IX’s applicability, it severely understates the significant relationship between the PTO and the school district.”

“And other than saying so, it makes no real effort to explain how a dance for girls and a baseball game for boys are ‘reasonably comparable’ activities as required by Title IX’s exemption,” Brown said. “They are ‘reasonably comparable’ only if one believes that Title IX was designed to encourage, not to eliminate, gender stereotyping in schools. The school district’s attorneys got it right.”

School committee appeals to state lawmakers

Cranston Superintendent Judith Lundsten and School Committee Chair Andrea Iannazzi both declined to comment on the Hopkins Center letter until school district attorneys had had a chance to review it first. “Since the letter involves legal questions, I will forward it to our legal counsel tomorrow morning for their review,” Lundsten said. “It would be inappropriate for me to comment on the letter until I hear back from our counsel.”

Iannazzi said the district is concerned about facing litigation from either side of the father-daughter dance controversy. “I think that that threat of litigation is always a concern,” Iannazzi said. “But our primary responsibility as a school committee is to provide a quality education for students and to put their interests first.”

The school committee has already taken steps to undo the ban on father daughter dances: earlier this week, it passed a resolution asking the General Assembly to amend state law to make the events legal.

 Cranston a ‘wounded city’

The father-daughter dance ban was first brought to light by GOP state Senate candidate Sean Gately. He has criticized the school district for making the decision behind closed doors. He said the school committee, in particular, abdicated its duty by not seeking public input. “It is their duty to bring the subject up and let the parents talk about it,” Gately said.

Instead it fell to Gately to raise the issue in a September 10 Facebook post that ignited a firestorm of controversy and landed Cranston once again in the crosshairs of the culture wars.

Gately’s opponent in the Senate race, Democrat Frank Lombardi, is a member of the school committee, but Gately said his decision to go public was not politically motivated. He said his wife first brought the issue to his attention when she learned that she would not be able to attend the annual mother-son bowling event at their second-grade son's elementary school in Cranston (Gately declined to name the school for privacy reasons). Gately said he only decided to make the issue public after reaching a “dead-end” with the school committee.

Neither Iannazzi nor Lombardi could be reached for a response in time for publication.

Gately did applaud the school committee for the vote it took earlier this week.

After learning of the Hopkins Center’s intervention in the controversy, Gately said he agreed with their arguments in favor of the dances. “Freedom of expression is very much being violated by this,” Gately said. “You now have a government entity telling a private entity that they cannot associate in a manner … they see fit.”

But, he added that he would not encourage parents to sue the district over the issue. Instead, he said the matter should be resolved through state legislation, which he promised to introduce if he is elected. “We’re a wounded city already from what happened with the ACLU and the prayer banner in the past,” Gately said.

The father-daughter dance that got it all started was held last May at the Stadium Elementary School in Cranston. PTO President Nadine McAllister said the father-daughter dance—which was officially billed as “Me and My Guy Dinner Dance”—would not be held again this year.

“We’re not allowed to do them now because it is against state law,” McAllister said. She said parents in her schools community were “very upset” by the situation. “We thought the dance was very successful. We would like to continue with them but unfortunately are unable to.”

Like Gately, she said she supported the school committee’s vote to petition a change in state law.

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