The Suit: Legal Reasoning 101 (Part 1)

Short summary: the suit is a hodgepodge of half-baked legal theorizing, personal aggrandizement, and perceived slights that will be thrown out of court faster than Tea Party member would be thrown out of a book club.

The suit claims:

The Office of Public Instruction is a subdivision of the state of Montana charged with administering funding and curriculum standards in the public education system. As such, all actions related to funding and curriculums are under the authority of the OPI.

While I have addressed this point a number of times before, I can’t emphasize enough how absurd and illogical this claim is. It flies in the face of the core tradition of American education–local control of curriculum–and Montana law, which makes it clear that the state cannot dictate curriculum. While OPI is charged with establishing broad standards, implementation of curriculum at the local level is a hallowed tradition, especially among conservatives.

It’s not up to OPI to dictate curriculum, and it’s certainly not up to them to change a curriculum to appease Ms. Allen-Gailushas or Sean Hannity.

Next, the suit  criticizes the district’s Critical Competency approach, suggesting that parents were not informed about its implementation:

This administrative process adopted by the District is arbitrary in its vagueness and the failure by the District to advise the citizens of the District of this process leading to the development of a health enhancement curriculum has capriciously circumvented the Constitutional rights of the people.

There are no fewer than ten pages of references on the HSD web page about critical competencies over the past few years. They have been discussed at Board Meetings (which have publicly available and posted minutes) repeatedly. I’m not sure when the disinterest of a parent became a lack of legal notification, but it’s a pretty specious justification for a lawsuit.

It’s roughly at this point that the suit starts to wander off to Crazy Town and the TYRANNY begins:

Then, Superintendant Messinger determines he has exclusive authority to revise the curriculum without providing for the public disclosure of any proceedings or deliberations, or examination of all documents being used to make these decisions. This unbridled authority given to the superintendant by the District and OPI, constitutes a separate violation of the rights of the people.

Let’s see. A public hearing in which participants personally attacked School Board members and employees, following threatening messages being left for them. A planned second hearing, during which the Board has promised to let every person speak, followed by a PUBLIC VOTE by ELECTED OFFICIALS. That sound far from “unbridled power” to me. It sounds a lot like an open, fair process in a democratic society.

To assume that, as she repeatedly claims, Ms. Allen-Gailushas deserves “a seat at the table” at every district meeting exposes not only the absurdity of her position, but the ultimate aim of the Tea Party and its supporters: to cripple every level of government with specious, time-consuming demands that are less about process than they are about paralysis.

More tyranny in the form of CENSORSHIP:

The District, at the meeting on August 10th 2010, cited a policy that prohibits public comment on issues not on the agenda. The District prohibited the public from commenting on issues on the agenda. The arbitrary and capricious actions of the Board of Trustees provided for the violation of this basic right by impairing Kristi the right to freedom of speech and expression.”Every person shall be free to speak or publish whatever he will on any subject.” Kristi was censored by the District, leaving Kristi’s freedom and liberty arbitrarily and capriciously violated.

Yes, the woman who was on the front page of the local newspaper and the state news broadcasts was certainly censored. The woman who was invited to submit comment and speak at the next Board meeting was certainly censored.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.


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  • Typical of Tea Partiers, if they can't have it their way, then it's unAmerican and a threat to democracy. Overblown. Full of stinking hot air.

  • Great analysis except for one thing….

    It is a matter of law (with legal precident) that every "governmental body" include a time on thier agenda that allows for "public comment on matters not on the agenda". Multiple city, county and state agencies have been sued for neglecting that provision of the Open Meeting law.

    Now reading the Complaint, it appears that this wingnut is NOT invoking that provision. She is actually complaining that she was not allowed to "fully express" her views on the matter. My gut reaction is that she was probably speaking – at length – about how the School Officials were stepping on her rights and they shut her down when they felt she was no longer adding to the public comment. Issues like this have arisen in every public entity meeting at one time or another.

    She really should have hired a laywer to at least proof-read her rambling, quasi legal gobbledy gook before she submitted it. I agree with your assesment that it will be thrown out of court – probably by summary decision.

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Don Pogreba

Don Pogreba is an eighteen-year teacher of English, former debate coach, and loyal, if often sad, fan of the San Diego Padres and Portland Timbers. He spends far too many hours of his life working at school and on his small business, Big Sky Debate.
His work has appeared in Politico and Rewire.
In the past few years, travel has become a priority, whether it's a road trip to some little town in Montana or a museum of culture in Ísafjörður, Iceland.

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