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RELIEF, AND FOR DAMAGES TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW Plaintiffs, CELIA J. CHIU, DENISE BROWN, VERONICA C. JENKINS, DENISE KIRKE, ALFRED G. KIRKE, and KENNETH R. JOHNSON (hereafter identified individually by name or collectively as "Parents"), and file this their Class Action Complaint for Declaratory Judgment, for Injunctive Relief and for Damages against Defendants. Parents bring this action against Defendants because Defendants are discriminating, and acting in retaliation, against the Parents on account of the content of their speech and are also violating the Parents' fundamental and constitutional rights of free speech and expression, right to equal protection and due process, and fundamental right to direct the education and upbringing of their children. Parents Celia J. Chiu and Denise Brown also bring this action on not only their own behalf, but also on behalf of a class of similarly situated parents of middle school children (hereafter "Class Members") in the Plano ISD whose fundamental parental rights have been, and continue to be, violated by Plano ISD. In further support of this Class Action Complaint for Declaratory Judgment, Injunctive Relief and Damages, Parents would show the court the following: JURISDICTION 1. This action arises under the United States Constitution, state and federal law. The Jurisdiction of this court is invoked under 28 U.S.C. §1331 (federal question); §1343 (civil rights); §2201, et seq. (declaratory judgments); and 42 U.S.C. §1983, to redress the deprivations under color of state law, custom, and/or usage of rights, privileges, and immunities guaranteed by the First and Fourteenth Amendments to the Constitution of the United States, as well as Section 3 (equal rights), Section 8 (freedom of speech) and Section 19 (due course of law) of the Bill of Rights of the Texas Constitution. This Declaratory Judgment action under 28 U.S.C. §2201, et seq., is brought to enjoin the violations of state and federally protected rights of equal protection, freedom of speech and association, and to protect the parental right to control the educational upbringing and training of a parent's child. This court has supplemental jurisdiction over state law claims, including violations of the Texas Constitution and Texas Education Code, arising from the same transactions or occurrences, pursuant to 28 U.S.C. §1367. VENUE 2. Venue of this action is proper in this court pursuant to 28 U.S.C. §1391, because at least one of the defendants resides in this district, or a substantial part of the events giving rise to these claims occurred in this district. All of the acts complained of in this Complaint occurred in the City of Plano, Collin County, Texas. They were not random, unpredictable or unauthorized acts. The actions complained of were a series of deliberate decisions that resulted in repeated violations of the United States and Texas Constitutions, Texas State statute, school district and board policies and state law. PARTIES 3. Plaintiff Celia J. Chiu, is a citizen of the United States and the State of Texas. She resides in Plano, Collin County, Texas. She is the mother of two boys, G.C. and J.C., who attend school in the Plano ISD. J.C. is a 7th grader at Armstrong Middle School. Mrs. Chiu's children's names herein are pseudonyms. Pseudonyms are appropriate because of the possibility of retaliation against her children as a result of her bringing this action, and because her children are minors and have a right to privacy. 4. Plaintiff Denise Brown, is a citizen of the United States and the State of Texas. She resides in Plano, Collin County, Texas. She is a single mother whose son C.B. is a 7th grader at Haggard Middle School in the Plano ISD. Mrs. Brown's child's name herein is a pseudonym. A pseudonym is appropriate because of the possibility of retaliation against her child as a result of her bringing this action, and because her child is a minor and has a right to privacy. 5. Plaintiffs Chiu and Brown seek certification from this Court to act as class representatives for the parents of middle school children in Plano ISD, who desire the right to have a traditional math class for their children, and whose fundamental rights to direct the education and upbringing of their children, including the rights expressly mandated by §26.003 of the Texas Education Code, have been, and continue to be, violated by Defendants. 6. Plaintiff Veronica C. Jenkins is a citizen of the United States and the State of Texas. She resides in Plano, Collin County, Texas, and has been a taxpayer in the Plano ISD since 1985. Mrs. Jenkins is the mother of three children that attend the Plano ISD schools, one of which is her son C.J., a 7th grader at Armstrong Middle School. Mrs. Jenkins' child's name herein is a pseudonym. A pseudonym is appropriate because of the possibility of retaliation against her child as a result of her bringing this action, and because her child is a minor and has a right to privacy. 7. Plaintiff Denise Kirke is a citizen of the United States and the State of Texas. She resides in Plano, Collin County, Texas. She is the mother of B.K., a 7th grade student at Haggard Middle School in the Plano ISD, and T.K. who last year (1998-1999) was an 8th grader at Wilson Middle School. Mrs. Kirke's children's names herein are pseudonyms. A pseudonym is appropriate because of the possibility of retaliation against her children as a result of her bringing this action, and because her children are minors and have a right to privacy 8. Plaintiff Alfred G. Kirke is the husband of Plaintiff Denise Kirke, and is a citizen of the United States and the State of Texas. He resides in Plano, Collin County, Texas. As noted above, Alfred and Denise Kirke are the parents of their daughter B.K. and son, T.K. T.K., who was an 8th grader at Wilson Middle School the 1998-1999 academic school year, was subjected to the Connected Math Program. Besides being a concerned and involved parent in the education of his children, Mr. Kirke has 30 hours of higher math training and education. With two more math courses at Texas Tech, Mr. Kirke would have dual majors: Electrical Engineering and Math. Mr. Kirke uses math professionally and has done so for thirty (30) years, and has enough education and experience to judge the Connected Math Program as not relevant in the current high-tech workplace. 9. Plaintiff Kenneth R. Johnson, is a citizen of the United States and the State of Texas. Prior to the spring semester of 1999, Mr. Johnson had two of his children, two daughters, enrolled and attending school in the Plano ISD. During the spring semester of 1999, he withdrew his children to have them educated at a private school, mostly because of the Connected Math Program that is at issue in this litigation. If the relief prayed for herein is granted by this Court, Mr. Johnson and his wife would strongly consider re-enrolling their children in the Plano ISD. 10. Defendant Plano ISD is a public school district subject to the applicability of Title II of the Texas Education Code. Defendant Plano ISD is a governmental body and an educational institution authorized and created by Texas Statute to educate the children that reside in its boundaries. Plano ISD may be served with process by serving a copy of this Complaint upon its Superintendent, Dr. Douglas Otto, at 2700 West 15th Street, Plano, Texas 75075. 11. Defendant Plano ISD Board of Trustees is the body corporate that has the power and duty to govern and manage Plano ISD. The seven members of this Board are each sued in their individual and official capacities. The individual members of the Board may be served with process by serving a copy of this Complaint to their respective addresses: Board President John Muns, 1900 MacGregor, Plano, Texas 75093; Board Vice-President Mary Beth King, 4105 Camino Drive, Plano, Texas 75074; Gary Base, 2100 Crown Knoll Lane, Plano, Texas 75093; Dr. Allen Bird, 112 Overdowns Drive, Plano, Texas 75023; Scott Carpenter, 5908 Johns Wood Drive, Plano, Texas 75093; Ralph Stow, 5976 Campus Court, Plano, Texas 75093; Duncan Webb, 3824 Portsmouth Circle, Plano, Texas 75023. 12. Defendant Dr. Douglas Otto is the Superintendent of the Plano ISD and the educational leader of the district. Superintendent Otto is believed to reside in Plano, Collin County, Texas. He is a citizen of the State of Texas and resides in this judicial district. He may be served with process at the Plano ISD administrative offices, his place of employment, 2700 West 15th Street, Plano, Texas 75075. Dr. Otto is sued in his individual and official capacities. 13. Defendant Dr. James Davis, at all times relevant to this litigation, was the Plano ISD Central Cluster Area Assistant Superintendent. Dr. Davis is no longer employed with Plano ISD but now resides in Hattiesburg, Mississippi. He may be served with process at the Hattiesburg Public School District, his place of employment, 301 Mamie Street, Hattiesburg, Mississippi 39401. Dr. Davis is sued in his individual and official capacities. 14. Defendant Marilyn Brooks is the Associate Superintendent for Curriculum and Instruction for the Plano ISD, and is believed to reside in Plano, Collin County, Texas. She is a citizen of the State of Texas and resides in this judicial district. She may be served with process at the Plano ISD administrative offices, her place of employment, 2700 West 15th Street, Plano, Texas 75075. Ms. Brooks is sued in her individual and official capacities. 15. Defendant Dr. Jim Wohlgehagen is the Coordinator for Secondary Mathematics for Plano ISD, and is believed to reside in Richardson, Dallas County, Texas. He is a citizen of the State of Texas and resides in this judicial district. He may be served with process at the Plano ISD administrative offices, his place of employment, 2700 W. 15th Street, Plano, Texas 75075. Dr. Wohlgehagen is sued in his individual and official capacities. 16. Defendant Donella Green, is the Principal at Armstrong Middle School in the Plano ISD, and is believed to reside in Plano, Collin County, Texas. She a citizen of the State of Texas and resides in this judicial district. She may be served with process at Armstrong Middle School, her place of employment, 3805 Timberline, Plano, Texas 75074. Ms. Green is sued in her individual and official capacities. 17. Defendant Roxanne Burleson is the Principal at Haggard Middle School in the Plano ISD, and is believed to reside in Plano, Collin County, Texas. She is a citizen of the State of Texas and resides in this judicial district. She may be served with process at Haggard Middle School, her place of employment, 2401 Westside, Plano, Texas 75075. Ms. Burleson is sued in her individual and official capacities. 18. Defendant Corky Criswell, is the Principal at Hendrick Middle School in the Plano ISD, and is believed to reside in Plano, Collin County, Texas. He is a citizen of the State of Texas and resides in this judicial district. He may be served with process at Hendrick Middle School, his place of employment, 7400 Red River Drive, Plano, Texas 75025. Mr. Criswell is sued in his individual and official capacities. 19. Defendant Beverly Sellers, is the Principal at Wilson Middle School in the Plano ISD, and is believed to reside in Plano, Collin County, Texas. She is a citizen of the State of Texas and resides in this judicial district. She may be served with process at Wilson Middle School, her place of employment, 1001 Custer, Plano, Texas 75075. Ms. Sellers is sued in her individual and official capacities. 20. Pursuant to Federal Rule of Civil Procedure 4(d), these defendants are subject to service under subsections (e), (f), or (h) of said rule, and Parents are therefore serving each Defendant with a Notice of Lawsuit and Request for Waiver of Service for Summons form and with a Waiver of Service of Summons form, the same which will be filed with this court by Parents once received back from Defendants. FACTUAL ALLEGATIONS A. Alfred G. Kirke: 21. On August 25, 1998, Alfred Kirke attended a public meeting held at the Haggard Middle School. Mr. Kirke intended to discuss with fellow parents the many aspects, pros and cons, to the new Connected Math Program in the Plano ISD. Mr. Kirke received notice of this public meeting for parents through a flyer sent home via his daughter by Plano ISD, a true and correct copy of which is attached as Exhibit "A" and incorporated herein for all purposes. 22. This meeting was held in the school and was open to the public. According to Plano ISD, this was a Parent's Math Night, meant to discuss the Connected Math Program in Plano ISD. This public meeting was open to the public. It was also publicized in the local paper, the Plano Star-Courier. 23. In preparation for this public meeting, Mr. Kirke duplicated copies of a Department of Defense report detailing its experience with the Connected Math Program, and a report on the 1995 Palo Alto School Board election where Connected Math was a controversial issue, a true and correct copy of which are attached hereto as Exhibit "B" and incorporated herein for all purposes. Mr. Kirke also prepared and brought a petition that parents could sign expressing their desire that Plano ISD not implement the Connected Math Program until it had allowed parental input in the curriculum selection at the middle school level, a true and correct copy of which is attached hereto as Exhibit "C" and incorporated herein for all purposes. 24. The morning of the meeting on August 25, Mr. Kirke, as a courtesy, met and informed the Haggard Middle School Principal, Ms. Roxanne Burleson, an employee of Plano ISD, that he was going to pass out these flyers and circulate a petition at this public meeting. Ms. Burleson made no objection. 25. The night of the meeting, Mr. Kirke arrived early and again informed Ms. Burleson and Dr. Jim Wohlgehagen of his intent and desire to present an opposing view of the Connected Math Program and provide handouts to parents that may be interested. Again, neither Ms. Burleson nor Dr. Wohlgehagen objected, so Mr. Kirke proceeded to do so. 26. Some time after Mr. Kirke placed his handouts and petition on the information table, alongside Plano ISD's own handouts addressing the benefits of the Connected Math Program, Dr. Wohlgehagen and Ms. Burleson both approached and asked him to remove his materials to another table so as to avoid the appearance that his materials were associated with the official presentation of Plano ISD. At the time, Mr. Kirke believed that this was a reasonable request and did so. 27. At the same time, Ms. Burleson informed Mr. Kirke that he would have an opportunity, after Plano ISD's presentation to the parents, to present his point of view on the curriculum issue, but when that time came, he was not allowed to do so. 28. As the parents arrived at this public meeting, Mr. Kirke greeted the parents and mentioned to them that he had prepared handouts and a petition concerning the implementation of the Connected Math Program in the Plano ISD. Many of the parents picked up copies of his literature and a number of them signed the petition. Mr. Kirke was at all times polite, orderly and non-disruptive, never attempting to force his handouts or petition on anyone. 29. As the room in which this public meeting for parents began to fill, Dr. Wohlgehagen and Ms. Burleson once again approached Mr. Kirke and asked him to pick up his materials and actually leave the premises. Mr. Kirke pointedly asked Dr. Wohlgehagen that if he were to refuse, would Dr. Wohlgehagen make him leave the premises. In response, Dr. Wohlgehagen said that he would not, and left Mr. Kirke. 30. Shortly thereafter, Dr. James Davis approached Mr. Kirke and informed him that the Plano ISD would not allow him to circulate a petition on school property and that he was to immediately collect his petition clipboard and put it away. Reluctantly, and in apprehension of what Plano ISD or some of its employees would do to him or his children if he did not comply, including forcefully removing him from the premises or retaliating against him through his children, Mr. Kirke abided by the request of Dr. Davis and put away the petition. 31. Minutes later, Dr. Davis once again returned to Mr. Kirke, informing him that Plano ISD would not allow him to pass out literature on school property and directed him that he should also gather up his handouts and put them away as well. Again, Mr. Kirke, fearing what the Plano ISD would do to him if he refused, picked up his literature off of the very table that he had been previously directed by Dr. Wohlgehagen and Ms. Burleson to place literature earlier in the evening. Dr. Davis further told Mr. Kirke that the District would not allow him to pass out material because otherwise they must permit abortion rights activists and other groups of that sort to also pass out material. 32. The day following the August 25 public meeting at Haggard Middle School, Assistant Superintendent Dr. Davis prepared and distributed to all central cluster principals a memo instructing these principals to not allow parents, such as Mr. Kirke and other Parents involved in this litigation, from communicating in written form with any other parents or school personnel on their respective campuses. The motivating factor in initiating and preparing this memo was to stop parents that are opposed to Connected Math and its implementation within the District from providing information that is predominantly against the program to fellow parents. Specifically, the memo stated: "I want to alert all of you of our district legal position regarding people coming on to your campus with petitions and material associated with the Connected Math Program. You are not to allow anyone to come on to your campus, inside or out, to circulate a petition or pass out material related to the Connected Math Program. The recent flap over the Connected Math Program has prompted some people to conduct personal campaigns supporting one side or the other. I think they will seek support wherever they can find it, including schools not using the program. Don't get caught napping on this one." Shanley v. Northeast ISD, 462 F.2d 960, 971 (5th Cir. 1972). Further, "…aversion to "criticism" is not a constitutionally reasonable justification for forbidding the exercise of First Amendment expression. The First Amendment's protection of speech and expression is part of the Bill of Rights precisely because those governed and regulated should have the right and even the responsibility of commenting upon the actions of their appointed or elected governors and regulators. Id. 68. Defendants created a limited public forum for community and parental access, use and discussion when it opened its facilities for the Parent's Math Nights of August 25, September 1 and October 12, 1998 at Haggard, Wilson and Hendrick Middle Schools, respectively, and when it opened the avenue of sending information home via the children to for-profit entities and entities of similar character to MathChoice. Defendants voluntarily opened these campuses for use by the public, including the parents of the district, for expressive activity, that being the discussion and distribution of information and literature concerning the Connected Math Program and its implementation in Plano ISD. The Defendants intended to open its facilities for the purposes of conducting the Parent's Math Night, and in fact did so. However, the Defendants obviously intended to, and effectively did, limit the only distribution of information and literature to be the school district's literature that was favorable to the adoption and implementation of a Connected Math Program in Plano ISD, to the unconstitutional exclusion of Parents. Therefore, at the time the Defendants precluded Parents from distributing their literature, thus violating their First Amendment rights, they did so based on the content of the Parents' speech, which was not narrowly drawn to effectuate a compelling State interest. In fact, there is no compelling State interest that justifies and validates the acts of Defendants against Parents. The Defendants' desire to stifle criticism of Plano ISD's Connected Math Program is not a compelling reason, but rather an invidious reason for discrimination. 69. The Defendants, by action, word and deed, effectively precluded parents, including these Parents, from expressing their opinions of the Connected Math Program with other parents and the public, solely because of the content of that expression. Material that is merely unpopular [to the Defendants] or that stimulates controversy shall not be restricted or forbidden, and yet, that is exactly what Defendants did, in direct violation of its own policy, FMA (Legal), and federal law. Tinker v. Des Moines ISD, 393 U.S. 503 (1969). This prior restraint on free speech is a clear violation of the First Amendment and an attempt to stifle the content of protected speech. 70. The conduct of Defendants described above has deprived and continues to deprive Parents of their right of freedom of expression and constitutes impermissible content and viewpoint discrimination violation of the free speech clause of the First Amendment, made applicable to the states and their subordinate political entities through the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. §1983, and by Art. I, section 8 of the Texas Constitution. It further constitutes an impermissible prior restraint against the rights of Parents in violation of the First Amendment, made applicable to the states and their subordinate political entities through the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. §1983, and by Art. I, section 8 of the Texas Constitution. 71. Defendants unconstitutionally deprived, and continue to deprive, Parents of their rights of free speech and right to petition their government, their public servants, for the redress of grievances as their speech was directed to change in government policy, that being an option in the math curriculum of the Plano ISD middle schools. This constitutes a violation of the free speech clause of the First Amendment, made applicable to the states and their subordinate political entities through the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. §1983, and by Art. I, section 27 of the Texas Constitution. 72. The restrictions contained in the Davis memo (Exhibit "D") are also impermissibly overbroad in that they appear on their face to prohibit a substantial number of communications, particularly communications between Parents and other adults that the Defendants believe to be contrary to Plano ISD's position on any particular viewpoint or matter. 73. The policy, procedure, custom or actions of Defendants noted above, in clear violation of law and 42 U.S.C. §1983, have made it more difficult, if not impossible, for Parents to inform other middle school parents of the various aspects of Connected Math and the rights of parents under state law. 74. The conduct of Defendants described above has deprived and continues to deprive Parents of their fundamental parental rights to direct the education of their children as secured by the First and Fourteenth Amendment of the United States Constitution, in violation of 42 U.S.C. §1983. 75. At all relevant times, the conduct of Defendants was not objectively reasonable in light of clearly established constitutional law. In contrast, at all relevant times, the conduct of Parents was reasonable, peaceful, and never materially and substantially interfered by any stretch of the imagination with the normal operations of the school. 76. Policies FMA (Local) and GKA (Local), both facially and as applied, are unconstitutionally vague and overbroad and violative of the Parent's, and other private individuals', right of free speech and expression and act as a prior restraint on protected expression. These policies further give unbridled and unboundaried powers to Defendants, public servants to the Parents, which they have exercised against these Parents' and other citizens. As written, and as applied by the Defendants, Policies FMA (Local) and GKA (Local) do not furnish sufficient guidance to prohibit the unbridled discretion that is prescribed by the Constitution. Underlying the First Amendment, as well as the Equal Protection clause of the Fourteenth Amendment where First Amendment rights are concerned, there is profound national commitment to the principle that the debate on public issues should be uninhibited, robust, and wide open. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Tinker v. Des Moines School District, 393 U.S. 503 (1969). Without question Defendants herein clearly interpreted Policies FMA (Local) and GKA (Local) as licenses to violate free speech and expression rights of Parents as well as their fundamental and constitutionally recognized parental rights to direct the education and upbringing of their children. Thus, both facially and as applied, these policies constitute a violation of the free speech clause of the First Amendment, made applicable to the states and their subordinate political entities through the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. §1983, and by Art. I, section 8 of the Texas Constitution. 77. In fact, Defendants have actually violated their own board policies including GKA (Legal) and FMA (Legal), true and correct copies of which have been attached hereto as Exhibits "K" and "L", respectively. 78. The Defendants' content-based exclusion of the flyer of MathChoice constitutes a violation of Parents' First Amendments rights of free speech and expression, under the U.S. and Texas Constitutions. The only reason the flyer proposed by MathChoice to be sent to fellow parents via the children was excluded, was because this flyer espoused views which was contrary to those of Defendants, thus creating a clear violation of the First Amendment rights of Parents. This purposeful exclusion against Mrs. Jenkins and MathChoice constitutes a violation of the free speech clause of the First Amendment, made applicable to the states and their subordinate political entities through the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. §1983, and by Art. I, section 8 of the Texas Constitution. 79. As a result of the unconstitutional activity and conduct of Defendants above, Parents seek an Order permanently enjoining Defendants from further violations of Parents' rights, damages in an amount to be proven at trial, and an award of costs and attorneys fees pursuant to 42 U.S.C. §1988. EQUAL PROTECTION and DUE PROCESS 80. Parents restate the allegations set forth in Paragraphs 1 through 79. 81. Defendants' policy and practice of refusing Parents the right to distribute literature to fellow parents at public meetings, or to distribute Parents' flyers or other literature to fellow parents, via their children, solely because of the contrary character of the literature to Plano ISD's "official position", or because of the content of the literature or speech, effectively denies Parents the equal protection and due process of the laws in violation of the Fourteenth Amendment of the United States Constitution and Article I, Sections 3 and 19 of the Texas Constitution. 82. By providing fellow parents with information about the Connected Math Program, information Defendants were not providing to the parents in Plano ISD, Parents merely sought the exercise of their right of free speech, equal protection, right to petition their public servants, and to actively participate in the creation and implementation of educational programs for their children, as provided for by §26.001(a) of the Texas Education Code. Among other adverse actions, Defendants intentionally and selectively imposed significant restrictions on Parents' rights, including equal protection, solely because of the content of the speech. 83. Defendants' content based exclusion of the flyer of Mrs. Jenkins and MathChoice constitutes a violation of Parents' Fourteenth Amendments rights of equal protection and due process, rights under the U.S. and Texas Constitutions. 84. Defendants unconstitutionally deprived, and continue to deprive, Parents of their rights to equal protection and due process of the laws as secured by the First and Fourteenth Amendment of the United States Constitution, in violation of 42 U.S.C. §1983, and as secured by Art. I, sections 3 and 19 of the Texas Constitution. 85. As a direct result of Mr. Kirke's, Mr. Johnson's and Mrs. Jenkins' exercising of their constitutional and parental rights as discussed above, each one of them was subjected to harassment and intimidation, and/or retaliation, at the hands of Plano ISD and its employees, under color of state law. This conduct is violative of Parents' rights and freedom of equal protection and due process in violation of the Fourteenth Amendment of the U.S. Constitution, and Article I, sections 3 and 19 of the Texas Constitution. Such retaliation, intimidation and harassment by government officials and employees, our public servants, places a chilling effect on the exercise of parental rights (both inherent and statutory), free speech, and all constitutionally protected rights, including equal protection. 86. The Parents have exercised, and attempted to exercise, their fundamental and constitutionally protected right to direct the upbringing and education of their children. They have exercised, and attempted to exercise, their freedom and liberties of speech and expression. They have also been deprived by Defendants of their equal protection and due process rights, also guaranteed under the United States and Texas Constitutions. These actions committed by Defendants were done pursuant to district policy or custom, were done under color of state law, were done within the course and scope of their employment as public servants in the public education system of the United States, and are in violation of the First and Fourteenth Amendments of the United States Constitution and in violation of 42 U.S.C. §1983. Throughout history, the United States Supreme Court has recognized the constitutional and fundamental right of parents to direct the education and upbringing of their children. In fact, in 1996, the United States Supreme Court held that "the interest of parents and their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment. M.L.B. v. S.L.J., 519 US 102 (1996)(emphasis added). 87. As a result of the unconstitutional activity and conduct of Defendants above, Parents seek an Order permanently enjoining Defendants from further violations of Parents' equal protection and due process rights, damages in an amount to be proven at trial, and an award of costs and attorneys fees pursuant to 42 U.S.C. §1988. VIOLATION OF STATE EDUCATION LAWS AND FUNDAMENTAL RIGHTS OF PARENTS A. Factual Allegations: 88. Parent Cecilia J. Chiu's son, J.C., is a 7th grade student at Armstrong Middle School. He is in the Connected Math Program, which is the adopted math curriculum for all middle schools in the Plano ISD for the 1999-2000 academic year. Mrs. Chiu signed a petition that specifically requested her right under Chapter 26 of the Texas Education Code, that her son be allowed the addition of a specific academic class in his course of study, in keeping with the required curriculum. The requested class was a traditional, conventional math class, in lieu of Connected Math. This Petition was presented to the Plano ISD Board of Trustees on June 15, 1999. At the time Mrs. Chiu's petition was presented, sufficient interest was shown to make the addition of this class economically practical for Plano ISD. Similar petitions from the parents of over 520 middle school students were also presented at the same time. Along with Mrs. Chiu's petition were 30 other petitions, for a total of 31 students from the same school and same class whose parents specifically requested this right under the Texas Education Code. 89. This is not the first year her son J.C. has been in Connected Math. J.C. was in Connected Math last year (1998-1999), without the district first asking for or receiving the consent of his parents. 90. Parent Denise Brown's son, C.B., is a 7th grade student at Haggard Middle School. He is in the Connected Math Program, which is the adopted math curriculum for all middle schools in the Plano ISD for the 1999-2000 academic year. Mrs. Brown signed a petition that specifically requested her right under Chapter 26 of the Texas Education Code, that her son be allowed the addition of a specific academic class in his course of study, in keeping with the required curriculum. The requested class was a traditional, conventional math class in lieu of Connected Math. This Petition was presented to the Plano ISD Board of Trustees on June 15, 1999. At the time Mrs. Brown's petition was presented, sufficient interest was shown to make the addition of this class economically practical for Plano ISD. Similar petitions from the parents of over 520 middle school students were also presented at the same time. Along with Mrs. Brown's petition were 18 other petitions, for a total of 19 students from the same school and same class whose parents specifically requested this right under the Texas Education Code. 91. This is not the first year her son C.B. has been in Connected Math. C.B. was in Connected Math last year (1998-1999), without the district first asking for or receiving the consent of his parents. 92. Parent Veronica C. Jenkins' son, C.J., is a 7th grade student at Armstrong Middle School. He is in the Connected Math Program, which is the adopted math curriculum for all middle schools in the Plano ISD for the 1999-2000 academic year. Mrs. Jenkins signed a petition that specifically requested her right under Chapter 26 of the Texas Education Code, that her son be allowed the addition of a specific academic class in his course of study, in keeping with the required curriculum. That requested class was a traditional, conventional math class in lieu of Connected Math. This Petition was presented to the Plano ISD Board of Trustees on June 15, 1999. At the time Mrs. Jenkins' petition was presented, sufficient interest was shown to make the addition of this class economically practical for Plano ISD. Similar petitions from the parents of over 520 middle school students were also presented at the same time. Along with Mrs. Jenkins' petition were 30 other petitions, for a total of 31 students from the same school and class, whose parents specifically requested this right under the Texas Education Code. 93. This is not the first year her son C.J. has been in Connected Math. C.J. was in Connected Math last year (1998-1999), without the district first asking for or receiving the consent of his parents. 94. Parents Alfred and Denise Kirke's daughter, B.K., is a 7th grade student at Haggard Middle School. She is in the Connected Math Program, which is the adopted math curriculum for all middle schools in the Plano ISD. Mr. and Mrs. Kirke signed a petition that specifically requested their right under Chapter 26 of the Texas Education Code, that their daughter be allowed the addition of a specific academic class in her course of study, in keeping with the required curriculum. The requested class was a traditional, conventional math class in lieu of Connected Math. This Petition was presented to the Plano ISD Board of Trustees on June 15, 1999. At the time Mr. and Mrs. Kirke's petition was presented, sufficient interest was shown to make the addition of this class economically practical for Plano ISD. Similar petitions from the parents of over 520 middle school students were also presented at the same time. Along with Mr. and Mrs. Kirke' petition were 18 other petitions for a total of 19 students from the same school and class, whose parents specifically requested this right under the Texas Education Code. 95. This is not the first year their daughter B.K. has been in Connected Math. B.K. was in Connected Math last year (1998-1999), without the district first asking for or receiving the consent of her parents. 96. On June 15, 1999, petitions signed by the parents of over 520 middle school students were presented to the Plano ISD Board of Trustees at their regularly scheduled board meeting. These petitions were presented to the board to evidence the substantial interest that exists at the middle school level within Plano ISD to comply with §26.003 of the Texas Education Code and provide parents the choice of whether to seek the addition of a specific academic class, a traditional math class rather than the Connected Math Program. These petitions are broken down by school and grade as follows:
97. These petitions were presented to Plano ISD with a short presentation by attorneys with the Texas Justice Foundation, outlining the applicability of §26.003 and Plano ISD's duty to abide by that law. On behalf of the parents, counsel with the Texas Justice Foundation requested that consideration and action upon these petitions be placed on a specially called board meeting for action and a vote. In response, Board President Mr. Muns said, "As far as I'm concerned, we're going to move ahead to move along. And we have asked for the curriculum guides to review it and at this point we are moving forward. We will not have this item on the agenda again. Moving on." The Plano ISD Board of Trustees refused to consider this matter or to move and take a vote to place this matter on a future agenda as an action item. 98. On March 30, 1999, Mr. Keith Sockwell, Deputy Superintendent of Plano ISD, spoke before the Texas House Public Education Committee in Austin. The Committee was hearing testimony that day on parental rights bills. The committee had heard testimony from parents from the Plano ISD who spoke in favor of parental rights legislation and about the Connected Math controversy in the district. The committee also heard these parents testify about the way they were being mistreated and ignored by Defendants when it came to their voiced concerns about the math curriculum of their children. In response, the committee asked Mr. Sockwell pointed questions about parental rights, specifically under §26.003, and the right of a parent to ask for the addition of a specific academic class. 99. When asked by the committee of the "economic practical" element of a request under §26.003, this was the interchange: Repr. Sadler: "About 45,000, but you had 250 parents, well parents of 250 kids, and you were adopting a new textbook, and they said, 'No, we don't want that . . . we want the old textbook . . . the traditional textbook. Can it economically, is it feasible to put together a classroom or series of classes for those 250 students that want to use the prior textbook? Can it be done?"/ In the present case, there have not been parents of 250 students requesting the addition of a specific academic class, but rather parents of over 520 students! And yet, Defendants' current position (that has necessitated the filing of this suit) is that it is not economically practical. The conversation continued as follows:
100. Then, when asked if parents have the right under §26.003 to ask for the addition of a specific academic class, as Parents claim herein, the exchange with Mr. Sockwell, speaking on behalf, and as a representative, of Plano ISD, was this:
It is abundantly clear and evident from this discussion of March 30, 1999, that (1) Parents', and the parents of over 520 students that signed a petition requesting their rights under §26.003, have shown sufficient interest and that it is economically practical to offer the traditional math course, and (2) the Defendants tell the Texas House Public Education Committee one thing, then when they come back to the parents of the district, they tell them something else. B. Experimentation on Children Without Parental Consent: 101. Upon information and belief, the Connected Math Program, created at Michigan State University with funding from the National Science Foundation, an independent U.S. government agency (42 U.S.C. §1861 et seq.), is an experimental program. It was a research pilot project in the Plano ISD, that was subjected upon the children of Parents, as noted above, as well as thousands of other children over the past three academic years (1996-1997 to 1998-1999) at four pilot schools in Plano ISD: Armstrong Middle School, Bowman Middle School, Wilson Middle School and Haggard Middle School. While the Connected Math Program has been adopted by the Defendants as the math curriculum for all middle school students, it remains an experimental program, unsupported by scientifically valid research studies or data. 102. None of the parents of any of the children that were subject to this research project were ever asked to give permission for their children to be subjected to this project and were never given the opportunity by Defendants to consent or not consent to their children being used as human subjects in this experimental research project. Defendants subjected Parents' children to this experimental project without the Parents' written consent. What Defendants did was alter the math instruction for the children in 4 middle schools into a pilot project that was incomplete and still in the creation and research stage, a program that had not yet been approved by the Board of Trustees; sought no parental input prior to the implementation of this project; and gave no parents in the district any alternative for their child. This treatment and use of Parents' children as human research subjects, without written consent of Parents, is in direct violation of Parents' fundamental rights to direct the education and upbringing of their children, in violation of 42 U.S.C. §1983. C. Legal Analysis and Claims: 103. Parents restate the allegations set forth in Paragraph 1 through 102. 104. Chapter 26 of the Texas Education Code is titled "Parental Rights and Responsibilities". Section 26.003(a)(3)(A), provides that a parent is entitled to "request, with the expectation that the request will not be unreasonably denied: (a) the addition of a specific academic class in the course of study of the parent's child in keeping with the required curriculum if sufficient interest is shown in the addition of the class to make it economically practical to offer the class; . . ." TEX. EDUC. CODE § 26.003(a)(3)(A). 105. "Sufficient interest" has not been defined by a court in the State of Texas under an analysis of §26.003. However, Mike Moses, Commissioner of Education of the Texas Education Agency, has previously stated that sufficient interest is shown if 22 or more parents request the addition of a specific academic class. A true and correct copy of Commissioner Moses' letter of April 26, 1996 is attached hereto as Exhibit "M", and is incorporated herein for all purposes. Commissioner Moses based this number not on any legal ruling or holding, but from the language of §28.003 of the Texas Education Code, regulating access to educational programs. Commissioner Moses further held that "A statute does not allow a district to deny parents those rights [under §26.003] on the grounds that the parents' request is conflict with district policy." (See Exhibit "M"). Commissioner Moses' letter of April 26, 1996, was accompanied and supported by the April 18, 1996 letter of State Representative Scott Hochberg in which he stated that it was his intent as the author of §26.003 to give parents the authority and right to request of a school district, with the expectation that it would not be unreasonably be denied, the addition of specific academic class, "a course that offers material that is substantially different (including more difficult) from that which is otherwise offered . . . " A true and correct copy of Representative Hochberg's letter is attached hereto as Exhibit "N", and is incorporated herein for all purposes. 106. Parents, and the class members making up all the parents of middle school students in the Plano ISD, have requested the addition of a traditional math course in lieu of the board adopted middle school curriculum of Connected Math. This traditional math course, and the requested textbook which is 100% compliant with the Texas Essential Knowledge and Skills requirements, is substantially different from the Connected Math Program, and the same will be proven at the time of trial with ample and sufficient expert testimony. Parents and the class members herein, have satisfied all of the requirements of Commissioner Moses' and Representative Hochberg's letters, and the requirements of §26.003 in order to request, demand, and expect to receive their rights as parents. 107. While 22 students is customarily the maximum allowable number of children in one classroom, with one teacher, certainly a classroom composed of 18 or 19 students is more advantageous for both the students and the teacher, giving greater flexibility for individualized attention and teaching. Notwithstanding Commissioner Moses' suggestion of 22 students, if the parents of 19 or more students have taken the time to sign a petition to show and reflect their desire for the addition of a specific academic class in their child's curriculum, and offer to purchase the textbook for the class, such constitutes sufficient interest in compliance with §26.003. The following grades, in the following middle schools, have parents of 19 or more students who signed a petition and had it presented to the Plano ISD Board of Trustees on June 15, 1999:
108. That is only 15 classes, out of 3 grade levels, at 11 middle schools in Plano ISD, and therefore, certainly evidence that the requested additional courses would be economically practical since Plano ISD's teachers already know how to provide and teach a traditional math class. 109. The vast majority of parents that signed a petition also indicated their willingness to purchase, at their own expense, the math textbook that they desired be used in the class, from the Glencoe Publishing Company, the same textbook which is 100% conforming to the Texas Essential Knowledge and Skills guidelines of the Texas Education Agency and State Board of Education. No additional teachers would have to be hired as Plano ISD may simply reassign a present teacher that is teaching Connected Math, to teach the traditional, conventional math program. 110. Defendant Plano ISD and its Board of Trustees, acting within the course and scope of their position as trustee members, the governing body of the district, violated §26.003 by their refusal to consider and place as an action item on an agenda, either at a specially called board meeting or regular meeting, for consideration of the parents' requested rights under Chapter 26. Specifically, §26.003 clearly provides that a parent is entitled to request, "with the expectation that the request will not be unreasonably denied", the addition of a specific academic class. (TEX. EDUC. CODE §26.003(a)(3)). The Board of Trustees of Plano ISD unreasonably denied the parents of the district the ability to present their request. They denied parents the ability to present their request with the expectation that it would not be unreasonably denied. In short, Plano ISD, by and through its Board of Trustees, is in direct and clear violation of the Texas Education Code in addition to the rights of parents to direct the educational upbringing of their children, which has long been recognized by the United States Supreme Court in Myer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571 (1925). 111. By the Board's refusal to have this matter placed on a future agenda as an action item, they refused to hear the requests of these parents. They refused to consider the requests. They refused to listen to the parents, their partners in the education of the children, which is the first objective of the Texas Education Code. (TEX. EDUC. CODE §4.001(b)). They are further in violation of, and in direct contradiction to, one of the founding principles of the United States Department of Education: "The [United States] Congress finds that . . . parents have the primary responsibility for the education of their children, the States, localities, and private institutions have the primary responsibility for supporting that parent role; . . ." (20 U.S.C. §3401[3])(emphasis added). 112. Defendants have unquestionably violated the fundamental, constitutionally protected rights of Parents, as the parents of their minor children, to direct the education and upbringing of their children, by subjecting these children to an experimental research project, a pilot program, as human research subjects without parental consent. As a direct result of the Defendants' wrongful violation of Texas law and the clear rights of parents under Chapter 26 of the Texas Education Code, Parents continue to have their children subjected to the Connected Math Program. This treatment and use of Parents' children as human research subjects, without written consent of Parents, is in direct violation of Parents' fundamental rights to direct the education and upbringing of their children, in violation of 42 U.S.C. §1983. As a result of the unconstitutional activity and conduct of Defendants above, Parents seek an Order permanently enjoining Defendants from further subjecting their children to this experimental program as human test subjects, without parental consent; damages in an amount to be proven at trial; and an award of costs and attorneys fees pursuant to 42 U.S.C. §1988. 113. For these reasons, Parents bring this declaratory judgment before the present court, requesting that the court declare the actions and inaction of Defendants are in violation of the laws of the State of Texas and the fundamental, constitutional and statutory rights of parents to direct the education and upbringing of their children. C. Class Action Allegations: 114. The Connected Math Program has been implemented, pursuant to Board action and vote, in every middle school campus in the Plano ISD for the academic year 1999-2000. Parents of over 520 middle school students have signed a petition expressly requesting from the Plano ISD Board that a specific academic class be added to their child's course of study, pursuant to Texas Education Code §26.003. Their requests have been ignored. The Plano ISD, by its governing Board of Trustees, has chosen to ignore and willfully violate §26.003 and the rights of these parents to direct the education of their children and to be included as active partners in the creation and implementation of educational programs for their children. (TEX. EDUC. CODE §26.001(a)). 115. The proposed class is all the parents of middle school children that would desire a choice, those that have signed a petition, and those that have not, since not all have been contacted to date. A ruling by this court of the applicability of §26.003 to the present situation, will effect all the parents of every middle school student by recognizing their right to exercise the right to choose, should they decide to do so, and request an alternative math course for their children in lieu of the Connected Math Program. 116. Parents Mrs. Chiu and Ms. Brown have brought this action on behalf of themselves, for the benefit of their children, and on behalf of all the other persons similarly situated pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2). The class, as proposed by Mrs. Chiu and Ms. Brown consists of the parents of all middle school students in the Plano ISD who desire a choice and who have all had their right of choice, whether exercised at this time or not, violated by Plano ISD. 117. The requirements of Rule 23(a) and (b)(2) are met in this case. Over 10,200 children attend middle school in the Plano ISD, and thus the potential class, the parents of those roughly 10,200 children that would desire a choice, are so numerous that joinder of all members is impracticable. Even the class of parents of over 520 students known to want a choice is too large. The legality of the district's violation of Texas Education Code §26.003 creates a common question of law and fact to the class. The claims of the representative parties are typical of the claims of the class, i.e. the right to choose whether to have their child attend the Connected Math Program classroom or be taught a substantially different curriculum, a traditional math class, as allowed and authorized by TEC §26.003. The representative parties will fairly and adequately represent the interests of the class because they are represented by counsel with extensive experience in education law. The questions of law and fact that are common to the members of this class predominate over any question affecting only individual members, and this class action is superior to any other available methods for the fair and efficient adjudication of the controversy concerning this right to choose under TEC §26.003. 118. The Defendants herein have previously acted or refused to act on grounds generally applicable to this class, which thereby make it appropriate for Mrs. Chiu and Ms. Brown to bring this matter as a class action and seek class certification, with themselves acting as class representatives. This case is appropriately brought, and it is appropriate for final declaratory judgment and permanent injunctive relief to end the continued violations of state law. No monetary damages are sought by Mrs. Chiu and Ms. Brown for these violations of state education law. Mrs. Chiu and Ms. Brown know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action. ACKNOWLEDGMENT OF LOCAL COUNSEL 119. For the court and opposing counsel, counsel for Parents will be assisted in the prosecution of this case by Mr. William Charles Bundren, State Bar No. 03343200, P.O. Box 702647, Dallas, Texas 75370, (214) 630-3555, facsimile (214) 630-3574 as local counsel to act on behalf of Parents. Mr. Bundren is licensed in the Eastern District of Texas and is familiar with the local rules of this court. REQUEST FOR JURY 120. A jury trial is requested by Parents of all issues triable by jury. PRAYER WHEREFORE, as to Plano ISD and the individual Defendants, Parents pray for judgment as follows: 1. Declaration that the Parents' Alfred Kirke and Kenneth Johnson's rights under the free speech clause of the First Amendment, applicable to the states under the Fourteenth Amendment, as well as the free speech clause under Article I, Section 8 of the Texas Constitution, have been violated in violation of 42 U.S.C. §1983; 2. Declaration that the Defendants' policies and practice of refusing to allow parents to distribute literature at public meetings, and refusal to allow parents to distribute informative and helpful materials to other parents via the children, because of the content of the Parents' speech violates 42 U.S.C. §1983 and both federal and state constitutions; 3. Declaration that parent Veronica Jenkins' rights of free speech, due process and equal protection were violated by the Defendants' removal of her from the Parent Textbook Committee, solely based on her perceived "agenda" and such action violates both federal and state constitutions, and 42 U.S.C. §1983; 4. Declaration that Plano ISD Policies FMA (Local) and GKA (Local) are unconstitutional, vague and overbroad; 5. A permanent injunction against the use and enforcement of the Defendants' policies FMA (Local) and GKA (Local), against Parents or any other individuals, because the same are unconstitutionally vague and overbroad, and violate fundamental constitutional rights of speech, expression, due process and equal protection; 6. A permanent injunction against Defendants, enjoining them from continuing to prohibit the distribution of literature by parents at public meetings, and from continuing to refuse parents the ability to distribute informative and helpful materials to other parents via the children to their parents, because of the content of the Parents' speech, in violation of 42 U.S.C. §1983 and both federal and state constitutions; 7. Declaration that the Defendants committed unlawful acts of retaliation against Parents, and an Order to permanently enjoin Defendants from continuing its unlawful acts of retaliation and/or retribution against Parents or any other parent in the district for the exercise of parental rights, as guaranteed under the laws and constitution of this country and the State of Texas; 8. Declaration that the Defendants violated state statute §26.003 of the Texas Education Code governing a parent's right to direct the upbringing of their children and request the addition of a specific academic class in the course of study of the parent's child in keeping with the required curriculum; 9. An Order granting the relief of Parents and the Class Members enjoining the Defendants from continuing their violation of §26.003 of the Texas Education Code, ordering Defendants to so notify every middle school parent in Plano ISD of their rights under §26.003, via first-class, regular mail, and ordering Plano ISD to provide a traditional math course in those grades, at those campuses, at which the parents of 19 or more students in a particular grade level request the addition of this traditional, conventional math course for their child; 10. Money damages to Parents Celia J. Chiu, Denise Brown, Veronica C. Jenkins, and Denise and Alfred Kirke, whose children were involved, and treated as human subjects, in the experimental research project of Connected Math from the 1996 to 1998 school years, without the district first informing the Parents that this research project would involve their children and seeking and receiving their written consent to allow their children to be used and treated as human research subjects, violating 42 U.S.C. §1983; 11. Money damages to Parents Veronica C. Jenkins, Alfred G. Kirke and Kenneth R. Johnson for Defendants' violations of their rights, under 42 U.S.C. §1983, by violating their speech and expression rights and rights of due process and equal protection under the U.S. and State Constitutions; 12. An award of costs and attorney's fees incurred in the prosecution of this action pursuant to the Federal Rule of Civil Procedure 54(d) and 42 U.S.C. § 1988. 13. Such other and further relief, both at law and in equity, as the court may deem just and proper.  |