State Supreme Court explains ruling in voter guide case

By Dahlia Bazzaz / The Seattle Times

Washington Superintendent of Public Instruction Chris Reykdal failed to prove as “demonstrably false” his election opponent’s statement that Reykdal championed a policy that teaches “sexual positions to fourth graders,” the state Supreme Court says.

The full opinion in the 6-3 ruling, issued late last week, came in a defamation case brought by Reykdal against election challenger Maia Espinoza for a statement she made in the state voter guide mailed to all registered voters.

With Election Day just a week away, arguments over the veracity of the statement have become a rallying cry for both candidates.

The court initially ruled in August that Reykdal didn’t have the legal grounds to succeed in the defamation case. That meant Espinoza’s statement, which was based on the incumbent’s support for a comprehensive sex education law also on the ballot, could stay in the voter guide.

But the August ruling provided scant details on the court’s reasoning. Last week’s written order expounded on the case.

The majority opinion, written by Chief Justice Debra L. Stephens, said Espinoza’s statement is inflammatory but not false and that Reykdal failed to meet the high legal bar set for public officials to prove defamation, which requires “actual malice” — speech made with the knowledge that it was false, or with “reckless disregard” about its accuracy.

“Whether Espinoza’s critique is fair — and whether Reykdal’s policy is sound — is for voters to decide,” the opinion said.

If approved by voters, Referendum 90 would require school districts to adopt a sex education curriculum of their choice that meets state standards. Some curricula that meet those standards are compiled in a list by the Office of Superintendent of Public Instruction (OSPI), the agency that Reykdal leads. OSPI, the state’s education department, distributes funding to school districts and ensures they comply with state and federal law.

Espinoza’s voter guide statement refers to a book listed in a handout for parents from one of nine curricula the state suggests for fourth and fifth graders. The book, “It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health,” contains cartoon images of a couple having sex.

Though the handout is not a part of any lesson plan and is intended for parents and caregivers to review and provide extra reading for kids, the majority opinion says, “It is unlikely but truthful that the policy could result in unintentionally exposing fourth graders to depictions of, and thus ‘teaching’ them, different sexual positions.”

Justices Charles Johnson, Sheryl Gordon McCloud, Barbara Madsen, Susan Owens and G. Helen Whitener concurred with the opinion.

A dissent written by Justice Steven Gonzalez, and also signed by Justices Mary Yu and Raquel Montoya-Lewis, argues that OSPI does not approve or recommend any particular curriculum for use under the law. The office only reviews to see if curricula meet state standards, Gonzalez says.

“This book is not part of the teaching curriculum, and this record is bereft of any hint OSPI is recommending teachers use it to teach,” Gonzalez writes. “Espinoza herself even acknowledges that this is a ‘trail of breadcrumbs’ that led her to conclude Reykdal champions teaching sexual positions to fourth graders. It is simply not a reasonable or even plausible interpretation of the facts.”

Gonzalez argues Reykdal met the standard for defamation. He also points to comments on The Seattle Times website as evidence that the statement has already deprived him of “at least some of the public’s confidence.”

Debate over the sex education referendum has helped make the non-partisan OSPI race one of the most ideological in recent memory. Both candidates’ campaigns issued emailed statements in reaction to the court’s full opinion.

“This is a huge win for parents across the state,” Espinoza said. “We knew this statement to be true.”

Reykdal, who won the case in Thurston County Superior Court before Espinoza appealed to the state Supreme Court, wrote, “While I disagree with the court’s majority, this case was about only one example of my Republican opponent’s alarming pattern of personal dishonesty.”