From today’s decision by Judge Fernando M. Olguin (C.D. Cal.) in Concerned Jewish Parents & Teachers of L.A. v. Liberated Ethnic Studies Model Curriculum Consortium:
The Concerned Jewish Parents and Teachers of Los Angeles …, “an unincorporated association comprised of Jewish, Zionist Los Angeles teachers who teach in the [Los Angeles Unified School District] and Jewish, Zionist parents of children who are students in the LAUSD,” initiated this action on May 12, 2022….
As an initial matter, the court notes that plaintiffs’ [Complaint] is difficult to understand and contains a morass of largely irrelevant—and sometimes contradictory—allegations, few of which state with any degree of clarity precisely what plaintiffs believe defendants have done or, more importantly, how plaintiffs have been harmed. Indeed, so confusing are the allegations that plaintiffs spend approximately a third of their Omnibus Memorandum of Points and Authorities in Opposition to Defendants’ Motions, endeavoring to explain exactly what they contend their [Complaint] alleges—and, at times, attempting to walk back certain allegations or add new ones. The lack of clarity is particularly troubling given that this is plaintiffs’ fourth iteration of their complaint….
In any event, plaintiffs’ claims appear to revolve around the Liberated Ethnic Studies Model Curriculum (“LESMC” or “challenged curriculum”), a set of teaching materials developed by an independent non-profit organization that has not been adopted by LAUSD. Plaintiffs allege that as of 2020, LAUSD has required high school students to take an ethnic studies class and “integrate ethnic studies into PreK-8 curricula.” Plaintiffs claim that the UTLA and Consortium defendants—the non-District defendants—have advocated for implementation of the challenged curriculum and “are inserting, or attempting to insert” these materials into LAUSD schools….
According to plaintiffs, the challenged curriculum “denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]”and is designed “to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]” Plaintiffs allege there is “rank discrimination embedded in the LESMC,” because the challenged curriculum, among other things, “includes statements that the existence of the State of Israel is based on ethnic cleansing and land theft, apartheid and genocide” and that “Zionism is distinct from Judaism.” Because the challenged curriculum contains anti-Zionist material, plaintiffs allege that the curriculum is antisemitic….
The court rejects plaintiffs’ claims on various grounds, which it discusses in too much detail to render here. But here’s a good big-picture summary of a key part of the court’s concerns:
[B]eyond the particular, claim-specific failures outlined above, it must also be noted that significant First Amendment concerns underlie plaintiffs’ claims and requested relief. In effect, plaintiffs seek to litigate the propriety and legality of a potential curriculum with which they disagree. Their claims thus conflict with the First Amendment in several respects, and are largely barred on that basis as well.
First, plaintiffs’ claims directly implicate the First Amendment rights of the non-District defendants. Plaintiffs take issue with the non-District defendants’ forms of discussion, expression, and petitioning in relation to the challenged curriculum. Notwithstanding plaintiffs’ insistence and disclaimers that they challenge only publicly-funded government activities, plaintiffs seek to have this court impose restrictions on the non-District defendants’ protected speech. (See, e.g., id., Prayer for Relief at ¶ 6) (requesting an injunction “prohibiting all Defendants from using the elements of the LESMC at issue in this case … in any training sessions funded by public funds, or for which salary points are awarded by LAUSD”). In particular, plaintiffs seek to have the court suppress any speech by the non-District defendants in teacher-training sessions that might involve the use of “elements” of the challenged curriculum.
But the non-District defendants have a right to express their views about the curriculum under the First Amendment and to petition for curricular changes under the Noerr-Pennington doctrine, which provides that “those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct.” The doctrine also applies to state actors. The non-District defendants thus have a protected right to express their views on, and petition for, an ethnic studies curriculum. Moreover, even if teaching the challenged curriculum were unlawful, and the non-District defendants encouraged the material to be taught, the non-District defendants’ activities would be protected, as plaintiffs have not alleged incitement to imminent lawlessness action.
In their Opposition, plaintiffs try to walk back their claims and insist they are only after the alleged control that the non-District defendants exercise over the curriculum. But characterizing the non-District defendants’ petitioning activities as effectively exercising state control does not change the fact that they are engaging in protected activity.
Second, plaintiffs maintain that the only speech they seek to suppress is that of teachers in LAUSD classrooms, and specifically request that the court enjoin LAUSD teachers from teaching from the challenged curriculum. But this request raises serious concerns about the First Amendment and principles of academic freedom.
Although high school teachers do not have freedom of speech to the full extent of the First Amendment, there is no doubt that “allowing the judicial system to process complaints that seek to enjoin or attach civil liability to a school district’s assignment of” curricular material could have broader, potentially chilling effects on speech. In other words, while teachers’ speech rights in the classroom may be reasonably abridged by their employers, such limitations are fundamentally different than speech restrictions imposed by a court at the behest of a group of private citizens. Confronted with a similar lawsuit over curricular material, the Ninth Circuit in Monteiro v. Tempe Union School Dist. (9th Cir. 1998) wrote:
Were the plaintiff to succeed in this litigation or even to succeed in forcing the defendants to engage in a trial over such [curricular material], the threat of future litigation would inevitably lead many school districts to “buy their peace” by avoiding the use of books or other materials that express messages—or simply use terms—that could be argued to cause harm to a group of students. In short, permitting lawsuits against school districts on the basis of the content of literary works [or curriculum] to proceed past the complaint stage could have a significant chilling effect on a school district’s willingness to assign [material] with themes, characters, snippets of dialogue, or words that might offend the sensibilities of any number of persons or groups.
“The Supreme Court has long recognized that the freedom to receive ideas, and its relation to the freedom of expression, is particularly relevant in the classroom setting.” Students have a right to receive information and “lawsuits threatening to attach civil liability on the basis of the assignment of [curricular material] would severely restrict a student’s right to receive material that his school board or other educational authority determines to be of legitimate educational value.”
The Supreme Court has also noted “the importance of protecting the ‘robust exchange of ideas[.]'” By their nature, these exchanges may sometimes involve uncomfortable conversations—but a system of education “which discovers truth out of a multitude of tongues” must allow teachers and their students to explore difficult and conflicting ideas. “[W]e must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.”
Determining the content of curricula is a complicated, important matter, and it is for this reason that school boards generally retain broad discretion in doing so, and that teachers must have some discretion and academic freedom in implementing and teaching the curriculum. It would be of great concern for the educational project and for academic freedom if every offended party could sue every time they did not like a curriculum or the way it was taught….
You can read the opinion for more details, but here’s an excerpt from the court’s conclusion that most of the defendants aren’t government actors, and thus aren’t constrained by the First Amendment or the Equal Protection Clause:
Taken together, the gist of plaintiffs’ allegations appears to be that: (1) the Consortium developed the challenged curriculum; (2) UTLA has supported the challenged curriculum; and (3) members of UTLA and the Consortium serve or have served on the ESC, and as a result, the non-District defendants are effectively determining the curriculum and thus engaged in state action. But plaintiffs’ allegations that LAUSD has effectively walked away from developing an ethnic studies curriculum and left it to the non-District defendants are simply not plausible, especially given the other allegations in plaintiffs’ [Complaint]. As plaintiffs acknowledge, LAUSD established the ESC as an advisory committee—under LAUSD’S control—to provide input on the development and implementation of an ethnic studies curriculum. And there are no specific and plausible allegations to establish, as plaintiffs contend, that the non-District defendants “have stepped into th[e] vacuum” left by LAUSD merely because they have advocated for the challenged curriculum. Such reasoning would sweep up virtually every group that succeeds in advocating for changes to public programs….
And an excerpt from the court’s rejection of plaintiffs’ Free Exercise Clause challenge:
“Offensive content that does not penalize, interfere with, or otherwise burden religious exercise does not violate Free Exercise rights.” This is so even where such content contains material that plaintiffs may find “offensive to their religious beliefs.”
Plaintiffs contend that the substantial burden on the exercise of religion “in this case is not only a function of the impact of the teaching on Jewish children who hold this belief: it is also on other children who are being taught to hate that belief and to oppose it actively.” But plaintiffs do not cite to any portions of the [Complaint] to support their contention that instruction from the challenged curriculum burdens the exercise of their faith. Indeed, plaintiffs’ [Complaint] does not identify any burden at all—it does not allege that plaintiffs have somehow been prevented from practicing their faith, or that the parent-plaintiffs have been barred in any way from instructing their children at home. In effect, the only hardship plaintiffs allege is that the existence of the challenged curriculum—and its possible adoption—offends them. But mere offense is insufficient to allege a burden on religious exercise [citing cases holding that “class materials offensive to Hindu [and Muslim] plaintiffs did not violate Free Exercise Clause”]….
