Curricula on smoking subpoenaed: Big Arizona districts complain as tobacco firms pursue evidence

By Michael Murphy
Copyright 1998 Arizona Republic
September 18, 1998

The nation's top tobacco companies have subpoenaed Arizona's largest school districts, demanding a broad range of materials used since 1950 to educate students about the dangers of smoking.

Arizona's largest district, Mesa Unified, is fighting the subpoena as "unduly burdensome" and potentially costly. Three others, Paradise Valley, Peoria and Phoenix Elementary, also have filed objections.

And the director of a national anti-smoking group accused the tobacco companies of using the subpoenas as a harassment technique to fight Arizona's $500 million tobacco lawsuit.

"You just can't say, 'Hell no,' " to a subpoena," said John Banzhaf, executive director of Action on Smoking and Health and a professor of law of George Washington University.

Paul Eckstein, an attorney for Brown Williamson, denied he was trying to harass the schools.

We don't need to see...every last book, but I think we've got a pretty good idea of what several school districts taught 30 to 40 years ago.

- Paul Eckstein, an Attorney for Brown Williamson

"We could have subpoenaed 287 school districts. We're not going to do that," he said, noting that only the largest school districts were targeted.

"We don't need to see every last piece of curriculum and every last book, but I think we've got a pretty good idea of what several school districts taught 30 to 40 years ago," he said.

What's more, Eckstein said, the state Department of Education "gave us the bum's rush."

"They said they didn't have any information at all. We had no choice but to go to the school districts," he said.

Tucson Unified, the state's second largest district, and Scottsdale Unified, also were hit late last month by the tobacco industry's demands.

The subpoenas ask for "any and all instructional materials...used since 1950 to teach students about the effects of tobacco use."

Tobacco attorneys are seeking the materials as they assemble a legal defense against the state's tobacco lawsuit. The suit, filed by Attorney General Grant Woods in 1996, claims that cigarettemakers misled the public about the hazards of smoking for decades and hooked thousands of youngsters.

The lawsuit is scheduled to go to trial March 4.

Eckstein said the tobacco companies are seeking to prove that, 30 or 40 years ago, even before the 1964 surgeon general's report on smoking, "kids as young as 10 years old and maybe younger were educated on the evils of smoking."

Textbooks, other curriculum materials and teacher lesson plans may show "there was a high degree of awareness of the health risks associated with smoking."

"There are a whole lot of reasons young people smoke . . . even though they've been warned," Eckstein said.

Tom Prose, an assistant Arizona attorney general, said he could not comment on the subpoenas.

But attorneys for several of the school districts have filed objections, saying the tobacco companies' demands are ridiculous, particularly coming at the beginning of the school year.

"Compliance with your broad demand for nearly 50 years of documentation would require an inordinate amount of district time, resources and funds," Mesa schools attorney Tamra Sieckmann said in an Aug. 28 letter to Eckstein.

"We are a district of approximately 70,000 students, 48 elementary schools, 12 junior high schools, five high schools and 11 alternative schools and programs," Sieckmann wrote. "I cannot comprehend how the district could adequately satisfy this subpoena without assigning several employees to work on the request."

She said the district will ignore the subpoena until a judge rules it must comply.

Paradise Valley Unified, Peoria Unified and Phoenix Elementary also filed objections.

The companies "asked for everything in the world," said Gary Lassen, an attorney for the districts.

Lassen said the districts have no system for keeping outdated textbooks and other curriculum material. "It's not like financial records, personnel records or student records they keep forever."

The three districts, though, are trying to work out a compromise with the tobacco attorneys to supply easily accessible documents.

Scottsdale already has turned up four boxes of materials dating to the early 1970s, said Jane McGlothlin, assistant superintendent for curriculum and instruction.

"People got stuff out of their garages and brought it in and said, 'Here's something we used years ago,' " she said. "It was a fairly motley-looking collection of stuff."

Targeting school districts may be a new legal technique used by the tobacco industry in its battles against state lawsuits.

Banzhaf said he had not seen school districts subpoenaed in other states, although the defense "that everybody knew about the dangers of tobacco rather false and fraudulent."

"The problem is, up until the surgeon general's report, there was no medical consensus" on the hazards of smoking.

"It's hard to see how a school district in 1955 could have been presenting anything like a consensus on the issue," he said.

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