This is a RUSH transcript from "The O'Reilly Factor," September 17, 2009. This copy may not be in its final form and may be updated.
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BILL O'REILLY, HOST: In "The Kelly File" segment tonight: another gay public school controversy in Alameda County. That's the Oakland area. Elementary schools are teaching gay-friendly courses and will not allow students to opt out. It's causing major angst with some parents.
Here now, attorney and FOX News anchor Megyn Kelly. Even in kindergarten, right?
MEGYN KELLY, FOX NEWS ANCHOR: Yes.
O'REILLY: First of all, what is the course? What are they teaching?
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KELLY: It's basically an anti-harassment, anti-bullying course that was mandated by state law. The course itself wasn't mandated; just to provide policies that prevent against harassment and discrimination is mandated under state law.
O'REILLY: And that's a good thing, right?
KELLY: It's a very good thing. It's not just for gays and lesbians, but minorities, religions and so on and so forth.
O'REILLY: Overweight children, children with bad complexions.
KELLY: Yes.
O'REILLY: Anybody different is going to get picked on.
KELLY: However, the problem here is that when the school implemented this policy, the class only speaks to protecting against discrimination against gays and lesbians. It doesn't speak to blacks and Latinos.
O'REILLY: See, but I understand one class a semester, correct?
KELLY: Yes, it is. That's true.
O'REILLY: Right.
KELLY: But the controversy arose because parents aren't allowed to opt their children out of it. And so some who have a religion — a religious objection to gay and lesbian — I don't want to say lifestyles. That's considered offensive.
O'REILLY: Well, gay and lesbian exposition, in the sense that, if you are a religious person, you don't want someone telling your child that it's OK to be gay. It's a simple as that.
KELLY: Right, right. But the school has come back and said that's not what we're saying. We're saying...
O'REILLY: But it really is what they're saying. I saw the curriculum.
KELLY: Look, I mean, look, it depends on the class.
O'REILLY: It really is what they're saying.
KELLY: As they get older, it gets more controversial.
O'REILLY: You bet.
KELLY: K — you know, grade K, kindergarten, this is the vocabulary they learn: name calling, exclude, hurtful, teasing, different, similar, comfortable. It's really non-controversial. By the time they get — here, this is the problem.
O'REILLY: "Tango."
KELLY: By the time they get into — I think it's grade three or four, then they had to read this book which talks about gay penguins as if that's translatable.
O'REILLY: Look...
KELLY: Listen, the thing is, it all comes down legally to this. Is this a health education class or isn't it? If it's health ed, they have to be given the right to opt out, the parents do.
O'REILLY: Right.
KELLY: If it's not health ed, they don't have to be given that right.
O'REILLY: Do you, Kelly, think its indoctrination?
KELLY: No, no.
O'REILLY: You don't. OK. So it's not indoctrinating the children to accept homosexuality.
KELLY: No, I really don't, although having said that, it's my blanket position. I don't know who's teaching these courses. I don't know the school district. I don't know if the people have an agenda, what they're going to say behind closed doors.
O'REILLY: As we said before, if you send your child to public school, the public school overrides the parental rights.
KELLY: But I do think that anti-harassment, anti-bullying when it comes to gays and lesbians, black and Latinos...
O'REILLY: Absolutely. Got to have that.
KELLY: ...is important, and it should be discouraged.
O'REILLY: All you have to do is put a blanket over everybody, and then you solve the problem.
All right. Now, we have a follow-up for you on a terrible story in San Francisco. We have three people: father, two sons, gunned down, all right? The killer, an illegal alien. All right. There are the victims right there, the Bolognas. Now, the illegal alien who killed them had been in trouble, big trouble, before as a minor in San Francisco. There he is, Ramos. San Franciscan authorities, because it's a sanctuary city, wouldn't turn Ramos over to ICE to be deported. They kept him in the city; they kept him on the street. So he kills these three. Now the family, the Bologna family sues. What's happening?
KELLY: They're losing. The headline on the latest articles read as though they're winning. That's not right. They're losing, as I predicted they would. My heart goes out to this family, and I have nothing but empathy for Danielle Bologna. And I do believe the city of San Francisco has blood on its hands. Having said all that, as a legal matter, she's not going to win. The problem is you can't sue a city for its policies unless those policies were specifically foreseeable in resulting to the exact injuries of this exact plaintiff that happened here.
O'REILLY: So this would be a specific injury? But look...
KELLY: This guy — this guy had made threats.
O'REILLY: You're the judge. You're the judge, Kelly. Here, I'm representing the Bolognas. I come in and I say, "Listen, judge, what we have here is a city that broke the law."
KELLY: Uh-huh.
O'REILLY: The city of San Francisco broke the law.
KELLY: I agree.
O'REILLY: We can prove that.
KELLY: Right.
O'REILLY: All right. And we have a city that was negligent in protecting the Bolognas, because they put a violent man back out on the street. So we have broke the law, San Francisco; put a violent man on the street, negligent. And you're telling me I can't win a lawsuit?
KELLY: Yes, because it all goes back to the city's policy, its sanctuary city policy. And courts have held, not just in California but in many jurisdictions, that you cannot sue the city for its policies. The city has absolutely...
O'REILLY: Even if the policy is illegal?
KELLY: Yes, well, there's...
O'REILLY: It's crazy.
KELLY: There's a dispute under the law about whether it is illegal.
O'REILLY: No, it is illegal.
KELLY: Listen, you and I agree on that. We're not going to argue with you on that.
O'REILLY: Right.
KELLY: I agree with you, but there is a dispute. And the problem is we don't want, in states across this country, people who are upset with city or state policies to be able to sue the city and the state.
O'REILLY: Well, I understand they have to. But this is a very specific case. Now, where is the case now? Still in...
KELLY: Here is what happened. They sued in federal court...
O'REILLY: Right.
KELLY: ...alleging constitutional claims and state claims.
O'REILLY: Right.
KELLY: The federal court just dumped the constitutional claims, and so it no longer has jurisdiction over the state claims. It's kicking those back down to state court. Trust me, when the state court takes a look at this, it's going to bounce the remaining claims.
O'REILLY: All right. So the case is in California state court now. Still underway, but they lost the federal beef.
KELLY: The law is clearly on the city's side.
O'REILLY: All right. Megyn Kelly, everybody. Thanks, Megyn, as always.
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