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The Iowa Board of Education refused an appeal filed by a parent in the West Des Moines Community School District after the district voted to keep the pornographic book “Gender Queer” in its library of a ninth-grade-only school.

“Gender Queer” has been deemed by Google to have adult sexual content and Facebook said it violates its community standards on sexual activity.

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But the Iowa Board of Education sided with an administrative judge in that the parent who filed the complaint does not have standing and the board lacks jurisdiction to do anything because the parent’s child is a sophomore not attending the freshman-only school.

The parent was deemed not to be aggrieved by the board’s decision because her child is no longer attending the building. Legal counsel for the Board of Education recommended the board affirm the decision.

Alan Ostergren, who represented the parent, gave credit to the parent for making it almost all the way through the process without needing a lawyer. But Ostergren, who is president and chief counsel of The Kirkwood Institute, stepped in and represented her pro bono because of “how important” this issue is.

Ostergren said the Iowa Supreme Court’s decision of standing is much broader than what was used by the administrative judge. Ostergren said the Iowa Supreme Court previously said any person connected with the school district is aggrieved for the purposes of challenging a local school board.

He said he was “struck” at the hearing when the West Des Moines superintendent was asked to give an example of a book that would not be appropriate to have in a library for middle schoolers. He asked for any kind of objective criteria of something the superintendent would say there is no educational value to the material and it isn’t appropriate for the school environment.

“She could not come up with a single thing,” Ostergren said of West Des Moines Superintendent Lisa Remy. “Not one thing. Not one objective standard as to why this would be inappropriate to have in a middle school environment — or any school environment.”

Ostergren also argued that decisions on the book were made without being based on something “more than just shrugging” shoulders.

“That’s exactly what this process is,” Ostergren said. “No objective criteria at any level.”

Ostergren said the issue at hand is parents feel the public schools are “absolutely out of control” and their interest is being disregarded.

Board member Nathan Peterson asked Ostergren if parents have a recourse in school board elections. Ostergren said they do, but one way or another, reform is coming.

“Reform is coming,” he said. “Really, that gets into a point here that, we all know reform is coming one way or another to public education. It has come and it is continuing to come. and the question is, will the infrastructure of public education in Iowa show any ability to reform itself? Is there going to be any ability to do that? Any sliver of anybody in authority standing up and saying, ‘You know what, maybe we’re going a little too far. Maybe we’re sexualizing children too much. Maybe we should listen to people and not just assume that because we’re credentialed, we know everything.’

“That ultimately is what this is about. And if reform doesn’t come from within the public school infrastructure, it’s going to come from without it. And you’re probably not going to like what that reform looks like. But you’ve lost almost every chance you have to show that you can fix yourself. Nobody has taken responsibility in the West Des Moines schools for an actual objective reason why this kind of stuff needs to be in a school library. Nobody.”

Ostergren predicted the lawyer representing West Des Moines would say rules and procedures were followed.

“The whole thing is broken,” Ostergren said. “You are appointed by law to superintend how school boards function, how the system of education functions in our state. And you would make an enormous impact by simply saying, ‘You know what, this is too much. It’s too far.'”

Peterson asked again about community members having an opportunity to vote for a new school board. He asked if the board overruled the district, and voters retained the current school board, wouldn’t that be the state board superseding the will of the voters in the district?

“No, no, because you’re here right now with the authority to review the decision that was made there,” Ostergren said. “Yes, in time, what has been happening and is continuing to happen is parents are waking up to how broken aspects of public education are and are trying to fix it. Yes, OK. But if the answer is, ‘Oh, they’re elected, therefore who are we to question their decisions,’ then we should end the meeting and you should resign from this board because what’s the purpose of this board then if not to supervise those decisions?”

Other questions or comments from the board were whether a district had established standards for library books and when someone at a ninth-grade-only school would have standing.

Brian Kane, who was appointed to the board in 2020 by Gov. Kim Reynolds, questioned why the board should even discuss the issue.

“So, I have a question, can you tell me why we should even be talking about the merits of this,” he asked. “(Code) 290.1 talks about you have to be the parent or guardian of an affected student in that school. Why should we get to the merits? If your client had her child in the school, obviously we’d be OK. But why should we do that in this case?”

Ostergren said the Supreme Court has said someone with a connection to the district like she has qualifies as an aggrieved person.

Kane said the decision from 1955 is much older than the statute.

Peterson also asked about the impact of the decision — whether it would only apply to the specific school in West Des Moines or impact others.

Ostergren said it would directly impact the West Des Moines freshman school but also send a message to districts across Iowa.

Kristy Latta of Ahlers and Cooney Law Firm represented the school district. She took issue at Ostergren’s question regarding middle schools because the building is a ninth-grade school. She also disagreed with Ostergren’s characterization of testimony from the West Des Moines superintendent. Latta said they were only there to discuss “Gender Queer” and not be speculative to other books.

She said this is the parent’s “sixth bite at the apple.” Latta said there was a building-level committee that made a decision, an administrative committee that made a decision, the superintendent’s decision, the school board’s decision and the administrative judge’s decision. The hearing at the Board of Education represents the sixth “bite at the apple.”

“I don’t know that we get to the merits here,” Latta said. “I think there’s a jurisdictional issue with regard to the fact that this is not a parent of an aggrieved child. The child doesn’t attend the school where the book is at. For that reason, you know, they really cannot be aggrieved.”

The case cited by Ostergren from 1955 predates the idea of 290.1’s “affected and aggrieved,” Latta said.

Latta said she doesn’t think there is jurisdiction for the state board to hear “something of this nature.”

As for the merits, which she said she doesn’t believe the board should get to, reasonable minds could disagree.

She said the board and previous committees made decisions that the book had literary value in its entirety.

“This is one of those situations where reasonable minds can differ,” she said. “The issue here is one of a decision that is vested with local school boards. These are the people that are elected by the community in which they live. They are elected to serve those people and they’re responsible to their constituents, they listen to those people and they get that feedback.”

Latta said the remedy is at the ballot box if there is dissatisfaction. And if someone individually isn’t happy, they need to go to a different school.

“They can, um, you know, make another choice then about whether or not that’s a school they want to attend,” Latta said. “If you were to reverse the decision based on the merits, it would be a seachange for the way that this prior state board has acted with regard to its precedent.”

Latta said there is a “zone of reasonableness.” She compared it to football goalposts noting sometimes the ball may go a little left or a little right or even down the middle, but as long as the ball goes through the board defers to the decision of the local board.

“It’s only in those cases with an extreme abuse of discretion. And that’s just not here,” Latta said. “Just because you strongly agree or might be the loudest one in the room doesn’t make the decision one that isn’t supported by some sort of reasonableness or rationale.”

Latta substituting the board’s judgment for that of the local board would have “extreme consequences” for every local board in every decision they make.

The state board was told they are the final agency action on the matter, and from here it the dispute would move to district court if necessary.

Kane said he isn’t swayed by the argument the parent has standing.

“I don’t believe she does,” he said.

Kane moved that the board votes on whether it has jurisdiction, saying he didn’t want to pass the decision based on the merits one way or the other. However, nobody offered a second to the motion.

Conversation continued.

Board member Mike May said he was “sorry” there had to be this discussion.

“I think reasonable people can draw different conclusions concerning this,” he said. “My personal opinion is the book shouldn’t be on the shelf, not so much because of the material, just at that particular age, I think kids are pretty vulnerable. I just don’t think it has any place.”

Kane reiterated that in his opinion the board shouldn’t discuss the merits. He said it is a “dangerous precedent” to start talking about things not properly before you.

“And the law of unintended consequences,” Kane said. “There are other ways that this can be addressed besides us ruling on the merits of something that’s not properly before this board.”

Kane said the board would be overstepping its authority if it ruled on the merits.

Peterson said he thinks the board owes someone a decision.

“There’s parents involved, there’s children involved, and I think that that’s our responsibility,” Peterson said.

“I just don’t think we pass it along for the parties to go to court,” Kane said. “We should decide whether we have standing or not. If the board believes we do, then I can vote no.”

Peterson moved to find the board does have standing and the board should rule on merits.

Prior to that vote, board president John Robbins said he contends the board doesn’t have jurisdiction.

“I would also contend that the board is treading on thin ice to say we have jurisdiction,” Robbins said. “I’m not arguing the merits of the case as far as whether that book should be on the shelves or not on the shelves — I’m just thinking if the board decides we have jurisdiction in this case, uh, we’ve become a book review for the state of Iowa — if that’s where we want to be.”

That vote failed with only Rod Bradley, May and Peterson. Bradley said he has a grandson going into ninth grade this fall.

“The materials that I reviewed are offensive. I find it hard to believe that so many reasonable adults found it to have any true literary value for my grandson or anybody of his age,” Bradley said. “I think one of the points made by the aggrieved party was that Amazon lists the book as an adult book over the age of 18. I looked it up on Amazon and that is how it’s rated, so I think it would be akin to a teacher showing a movie that was never intended for ninth graders in a classroom without their parent’s knowledge.”

Kane offered a motion once again to find there is no jurisdiction. This time his motion was seconded by Peterson.

“We should not get to the merits, just to be clear,” Kane said.

Just May and Peterson voted against that motion.

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