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California Parents for the Equalization of Educational Materials v. Noonan

February 25, 2009


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

This matter is before the court on (1) plaintiff California Parents for the Equalization of Educational Materials ("plaintiff" or "CAPEEM") motion for partial summary judgment as to its Establishment Clause claim and (2) defendants'*fn1 motion for summary judgment, or alternatively, partial summary judgment as to plaintiff's second amended complaint, alleging claims for violation of the Equal Protection, Establishment and Free Speech and Association Clauses.*fn2 Generally stated, in this action, plaintiff alleges the California State Board of Education ("SBE") discriminated against CAPEEM's members during the 2005-2006 history-social science textbook adoption process and that the adopted sixth-grade textbooks represent Hinduism in a discriminatory and denigrating manner. During the adoption process, the SBE held public meetings, considered public comment and consulted with scholars to determine the appropriate content of its curriculum, including the appropriate portrayal of Hinduism in the context of world history and ancient civilization. Plaintiff's critical objection is that the SBE did not adopt all of the textbook edits for which its members were advocating, and that ultimately, the adopted textbooks represent Hinduism in a discriminatory light.

By its motion, CAPEEM seeks partial summary judgment on its Establishment Clause claim, to the extent it is based on the subject textbooks' alleged indoctrination of students in their portrayals of Christianity and Judaism.*fn3 More specifically, CAPEEM requests partial summary judgment on it Establishment Clause claim based on (1) defendants' alleged expressed intent to model portions of the subject history textbooks after the New Testament; (2) the alleged improper influence of religious figures in approving the material addressing Christianity and religious considerations that went into evaluating the suggested edits of the textbooks; (3) the adoption of textbooks that allegedly treat biblical narratives as historical facts and biblical events, including miracles, as actual events; and (4) the adoption of teachers' materials which purportedly emphasize aspects of indoctrination.

Defendants oppose the motion, first on standing grounds, arguing CAPEEM lacks standing to bring an Establishment Clause claim based upon the alleged unlawful indoctrination of students into the Christian or Jewish religions because such a claim is not germane to its organizational purpose, which is to promote an accurate portrayal of the Hindu religion in California public schools. Alternatively, defendants contend plaintiff's Establishment Clause claim based on this theory fails on the merits, as an objective observer would conclude that the textbooks at issue, when viewed in context, are teaching about religion, rather than endorsing any particular religion. Because this court agrees that CAPEEM lacks standing to bring its Establishment Clause claim based upon the alleged improper indoctrination of students into the Christian or Jewish religions, it does not reach the substantive merits of CAPEEM's motion.*fn4 CAPEEM's motion for partial summary judgment is DENIED for lack of standing to bring the subject claim.

By their motion, defendants seek judgment in their favor as to all of plaintiff's claims for relief. Similar to their opposition to plaintiff's motion, defendants argue, in the first instance, that CAPEEM lacks standing to press any of its claims to the extent they are based on alleged discrimination in the textbook adoption process, and to the extent plaintiffs' claims challenge the textbooks' contents, plaintiff only has standing to allege violations of law based on the alleged negative treatment of Hinduism. Alternatively, defendants argue each of plaintiff's claims fail on their merits as follows: (1) plaintiff's equal protection challenge to the textbooks' contents fails under controlling Ninth Circuit law, and its equal protection challenge to the adoption process fails because plaintiff has no evidence to support a finding of discriminatory intent by defendants, CAPEEM cannot identify a similarly situated group and/or CAPEEM's members were treated the same as other similarly situated participants in the process; (2) plaintiff's Establishment Clause claim fails because defendants' actions did not promote other religions over Hinduism nor was the primary effect of defendants' actions hostility towards Hinduism; and (3) plaintiff's Free Speech and Association Clause claim fails because plaintiff cannot show how defendants' actions chilled CAPEEM members' free speech and association rights.

For the reasons set forth below, the court GRANTS defendants' motion as to plaintiff's Establishment and Free Speech and Association Clause claims. As to plaintiff's equal protection claim, the court GRANTS defendants' motion to the extent plaintiff's claim is directed at the textbooks' contents, as such a claim is not viable as a matter of law, but DENIES defendants' motion to the extent it is directed at plaintiff's process-related challenge. As to that issue, triable issues of fact exist as to whether CAPEEM's members were treated fairly in the adoption process.


During the sixth grade world history and ancient civilizations course, California students study the history and impact of various religions, including Hinduism. (Defs.' Stmt. of Undisputed Facts in Supp. of MSJ, filed Dec. 30, 2008 [Docket #158] [hereinafter, "DUF"], ¶ 2.)*fn6 The SBE adopts textbooks and must balance the goals of a fair and accurate description of history with sensitivity to different cultural, ethnic and religious groups. Cal. Const. Art. IX, § 7.5; Cal. Educ. Code §§ 60200-60206, 60040, 60044. The State's curriculum requirements for textbook publishers are set forth in the Criteria for Evaluating Instructional Materials in History-Social Science, Kindergarten through Grade Eight; The History-Social Science Content Standards ("Content Standards") and the History-Social Science Framework for California Public Schools, Kindergarten Through Grade Twelve ("Framework"). (Adams Decl., filed Dec. 30, 2008 [Docket #160], at Ex. B.) The Content Standards describe what students should know and be able to do by the end of each grade level. (Id.) These criteria are used to determine whether instructional materials submitted to the SBE should be adopted. (Id.; Adams Decl., ¶ 6.)

As explained in the Framework, the kindergarten-grade 8 history-social science curriculum is designed with the idea that knowledge of history-social science disciplines is essential in preparing students for responsible citizenship and in comprehending global interrelationships. (Defs.' Stmt. of Add'l Disputed Facts in Opp'n to Pl.'s MSJ, filed Jan. 13, 2009 [Docket #173] [hereinafter, "DDF"], ¶ 156.) Studying major religious and philosophical traditions helps students to understand people's historical struggles with ethical issues and the current consequences, wars and political arrangements, like separation of church and state. (DDF ¶s 157, 158.) Students learn about religious beliefs and texts in order to better understand cultural continuity and conflict. (DDF ¶ 159.) The Framework includes guidelines for teaching about religion. (DDF ¶ 160.)

The study of religion is done within the larger context of human history. (DDF ¶s 156-168.) In grade six, students study the world history and geography of ancient civilizations, including the early societies of the near East and Africa, the ancient Hebrew civilization, Greece, Rome and the classical civilizations of India and China. (DDF ¶ 161.) Students receive an overview of these societies, including the geography of the region; trade; art; social, economic and political structures; and the everyday lives of the people. (DDF ¶ 162.) In this context, students study about the religions and religious texts of the different ancient civilizations. (DDF ¶s 163-168.) The Content Standards identify certain information which must be taught. (DDF ¶ 168.)

In January 2005, the SBE issued an invitation to publishers to submit instructional materials for new sixth grade history-social science textbooks. (DUF ¶ 1.) Eleven publishers submitted instructional materials for consideration. (Id.) Nearly a year earlier, beginning in February 2004, the SBE had solicited and selected 12 Content Review Panel ("CRP") and 62 Instructional Materials Advisory Panel ("IMAP") members to review the publishers' submissions. (DUF ¶s 3-4.) The CRP members are subject matter experts who review the submitted instructional materials for accuracy, scholarship and alignment with the State's curriculum requirements (i.e., the Content Standards and Framework). (DUF ¶ 3.) The IMAP members are generally K-12 teachers. (Id.)

The CRP and IMAP received training in April 2005 and convened for deliberations on July 11-14, 2005. (DUF ¶ 5.) They then prepared a joint advisory report, which was mailed to the Curriculum Commission (the "Commission") on September 14, 2005. The report was made available to the pubic. (Id.) The Commission is an advisory body that advises the SBE on the adoption of curriculum frameworks and instructional materials. The SBE considers the Commission's recommendations but is not obligated to follow them. (DUF ¶ 6.)

The Commission held public hearings on September 29-30, 2005, at which parties could submit comments orally or in writing. (DUF ¶ 8.) The Commission received extensive public comments that could not be addressed at the meeting and could not be evaluated for accuracy at that time. (Id.) In particular, the Commission received lengthy submissions from the Institute of Curriculum Services ("ICS"), regarding the portrayal of Judaism in the textbooks, the Council on Islamic Education ("CIE"), regarding the portrayal of Islam in the textbooks, and the Hindu Education Foundation ("HEF") and the Vedic Foundation ("VF), regarding the portrayal of Hinduism in the textbooks. (DUF ¶ 10.) CAPEEM member, Karthik Venkataramani, combined certain CAPEEM members' proposed textbook edits with HEF's and worked with HEF throughout the process (these edits are referred to herein as the "HEF/VF edits"). (DUF ¶ 11.)

In order to give full consideration to the public comments, the Commission formed an Ad Hoc Committee to consider if the recently received public comments should be included in the Commission's final recommendation to the SBE. (DUF ¶ 9.) The Ad Hoc Committee held a publicly noticed meeting on October 31, 2005 and reviewed extensive written reports and comments from the public and the CRP. (DUF ¶ 12.) The California Department of Education ("CDE") contracted with three former CRP members: Dr. Williamson Evers, Dr. Naomi Janowitz and Dr. David Nystrom. Additionally, CDE hired Dr. Shiva Bajpai, who HEF had recommended, as a scholar to review the Hindu edits. (DUF ¶ 13; RDF ¶ 1.) Dr. Bajpai approved the edits proposed by HEF and VF almost in their entirety. (DUF ¶ 14.) At the October 31 meeting, Dr. Bajpai discussed the Aryan Invasion Theory ("AIT") and argued that scholarship no longer supported the hypothesis. (DUF ¶ 15.) The State's Content Standards required publishers to "discuss the significance of the Aryan invasion." (Id.)

Ultimately, the Ad Hoc Committee recommended edits to the SBE, including those that Dr. Bajpai had endorsed. (DUF ¶ 16.) All of the edits approved by the Commission and Ad Hoc Committee were submitted to the SBE, along with all public comments. (DUF Id.) Prior to the SBE's textbook adoption meeting on November 9, 2005, it received correspondence from scholars and individuals expressing concerns about the proposed edits offered by HEF/VF that were recommended for adoption by the Ad Hoc Committee. (DUF ¶ 17.) These letters raised concerns about the accuracy of the Ad Hoc Committee's recommended edits and about the objectivity and scholarly accuracy of Dr. Bajpai's recommendations regarding the HEF/VF edits. (Id.; DUF ¶ 22.)

For example, Dr. Charles Munger, a member of the Commission, sent a letter to the SBE on November 3, 2005, noting that AIT is taught at college level courses at Stanford and the University of California. (Id.) On November 7, 2005, Dr. Michael Witzel, Professor of Sanskrit, Harvard University, sent a letter to the SBE expressing concern about the HEF/VF edits. (Id.) In his letter, Dr. Witzel expressed concern that the proposed changes to early Indian history were politically motivated. He attached one of his scholarly publications regarding the political revision of textbooks in India. (Id.)

The next day, November 8, 2005, the SBE received a second letter from Dr. Witzel signed by nearly 50 international scholars, urging the SBE to reject the edits proposed by "nationalist Hindu ('Hindutva') groups."*fn7 (DUF ¶ 18.)

The agenda of the groups proposing these changes is familiar to all specialists in Indian history, who have recently won a long battle to prevent exactly these kind of changes from finding a permanent place in history textbooks in India. The proposed revisions are not of a scholarly but of a religious-political nature . . . These opinions do not reflect the views of the majority of specialists on ancient Indian history nor of mainstream Hindus. . . . It would trigger an immediate international scandal if the California State Board of Education were to unwittingly endorse religious-nationalistic views of Indian history from which India has only extricated itself in the last two years. (DUF ¶s 18-19.) The letter also directed the SBE to two U.S. State Department reports that discussed textbook revisions in India when the government was controlled by the Bharatiya Janata Party, a Hindu nationalist party. (DUF ¶ 19.) Therein, the State Department warned that the textbook revisions in India reflected Hindutva beliefs and "Hindu extremist interpretations of history." (Id.)

Dr. Witzel's letter was signed by several renowned scholars, including Romila Thapar, the first Kluge Fellow at the U.S. Library of Congress. (DUF ¶ 20.) Dr. Thapar also sent an email to Tom Adams, Executive Director of the Commission, and Sue Stickel, Deputy Superintendent of Curriculum and Instruction, on November 7, 2005, stating that historians in India urged the SBE to consult with scholars before agreeing to make the changes to Hinduism. (DUF ¶ 20.) She and eight other Indian scholars sent a similar message on November 28, 2005. (Id.) Dr. Adams contacted Dr. Thapar and asked her to review the HEF/VF edits approved by Dr. Bajpai. (DUF ¶ 21.) She performed a cursory review of the edits and recommended that they should not be adopted for inclusion in the textbooks. She also recommended that the CDE seek assistance from other "serious south Asian scholars" as in her opinion, Dr. Bajpai was regarded "as a rather indifferent scholar" with minimal research background. (Id.)

Plaintiff asserts that the correspondence from Witzel and others supporting his views contained no evidence to support their allegations that Dr. Bajpai and those supporting the HEF/VF edits had a political agenda. Plaintiff contends the letters contained no scholarly argument or mention of any specific edits or portions of the subject textbooks. In some respects, plaintiff states the letters were signed by scholars who had authored books for publishers submitting textbooks for evaluation by defendants. (PDF ¶s 121, 133; Green Decl., filed Dec. 30, 2008 [Docket #161], Exs. B and C.)

On November 9, 2005, at a public meeting, the SBE adopted and approved nine of the eleven sixth grade history-social science textbooks that had applied for adoption for use in California public schools. (DUF ¶ 23.) With respect to the remaining textbooks, the SBE directed the Commission to review the proposed edits and (1) accept only those edits and corrections that improve factual accuracy; (2) accept those edits and corrections that did not contradict the edits approved on September 30, 2005 and (3) accept no additional edits and corrections. (DUF ¶ 24.)

Thereafter, the CDE staff contracted the following three additional experts, who they believed were experts in ancient India: Dr. Stanley Wolpert, of the University of California, Los Angeles, Dr. James Heitzman of the University of California, Davis, and Dr. Witzel. (DUF ¶ 25.) Plaintiff disputes that Drs. Wolpert and Witzel are experts in ancient India. (RDF ¶ 3.) Plaintiff also contends defendants did not require these panelists to meet the standards defendants normally impose on content experts. For example, defendants did not require these panelists to submit their resumes, they were not vetted by defendants in any way and they were not screened by defendants with respect to the panelists' relationships to any publishers submitting textbooks in the process. (PDF ¶s 44-46, 53.) Plaintiff points out that while Dr. Bajpai had been screened with respect to his relationship to publishers involved in the process and defendants restricted his communications with publishers, Dr. Wolpert was not similarly screened or precluded from contact with publishers. (PDF ¶ 53, 55, 56.) At the time of his participation in the process, Dr. Wolpert was a paid consultant for one of the publishers that submitted a textbook for adoption by defendants. (PDF ¶ 57.)

Additionally, plaintiff asserts that various Hindu groups brought to defendants' attention certain derogatory remarks Dr. Witzel had made about Hindus, Hinduism and Indians, but defendants took no action and continued to involve Witzel in the process. (PDF ¶s 102, 103, 107, 108.) Finally, plaintiff maintains that a November 22, 2005 document created by Drs. Witzel, Wolpert and Heitzman evidence their disdain for scholarship and hostility towards Hindus. For example, in that document, in response to a request to correct the dates of authorship of two Hindu epics, the experts wrote, "Who in Sixth Grade cares which epic was 'written' first?" (PDF ¶ 114.) In that same document, when Hindus requested removal of a picture of an alleged untouchable coming out of a garbage dump in which a pig is scavenging, the three experts wanted to modify the image to read "leaving us with a powerful picture of the scavenging lifestyle associated with untouchability." (PDF ¶ 116.)

Drs. Witzel, Wolpert and Heitzman reviewed the edits submitted by HEF and VF and provided their recommendations to the Commission. (DUF ¶ 25.) Based on a report from these three reviewers, the CDE staff prepared a document to help the Commission understand the issues of historical accuracy and decide what edits reflected a scholarly consensus. (DUF ¶ 26.)

On December 2, 2005, the Commission reviewed the proposed edits and the experts' input and made its own recommendations to the SBE. (DUF ¶ 27.) The Commission modified a number of edits, either keeping the original language of the textbooks or approving new language in many instances in direct conflict with the recommendations provided by Drs. Witzel, Wolpert and Heitzman. CDE staff calculated that 97 of the 153 Commission recommended edits were directly contrary to the recommendations provided by Drs. Witzel, Wolpert and Heitzman. (Id.) Shortly thereafter, the SBE received a letter, dated December 7, 2005, signed by an additional 130 scholars protesting the Commission's decision to reject the scholarly recommendations of Drs. Witzel, Wolpert and Heitzman. (DUF ¶ 30.) The letter expressed concern "that a small, but highly organized group of people who claim to speak for all 'Hindus,' seem to have dominated" the proceedings, while a range of other organizations that represent Hindus were marginalized in the process. (Id.) The letter also expressed concern about the Commission's consultation with HEF and VF, "rather than trained academics on South Asia;" the scholars warned that HEF and VF were affiliated with the Hindutva extremist movement. (Id.) On the same day, Dr. Witzel wrote another letter on behalf of the 50 global experts who contacted the SBE on November 8, 2005, urging the SBE to reject the action of the Commission and instead adopt the Witzel, Wolpert and Heitzman edits, which were "carefully reviewed solely with a view towards historical accuracy." (DUF ¶ 29.)

Upon learning of the actions taken by the Commission on December 2, SBE President Ruth Green sent a letter to the Commissioners expressing her concern that the Commission may not have followed the November 9, 2005 SBE directives for its meeting. (DUF ¶ 31.) Green called a closed-door meeting on January 6, 2006 to discuss the textbook edits concerning Judaism, Islam, Christianity and Hinduism. (Id.) CDE staff, SBE and Commission members, and five content scholars, Dr. Naomi Janowitz (Judaism), Shabbir Mansuri (Islam), Dr. David Nystrom (Ancient History and Christianity), Dr. Witzel (Indian History and Sanskrit) and Dr. Bajpai (Indian History), participated. (DUF ¶ 32.) Plaintiff disputes the qualifications of some of the content scholars, including Witzel and Mansuir (who plaintiff states was simply a consultant for Houghton Mifflin's book), and complains that members of HEF/VF were not invited to this meeting. (PDF ¶ 95.) At the January 6 meeting, all of the Ad Hoc Committee edits and corrections were discussed, including the Hindu edits, which Drs. Bajpai and Witzel reviewed and debated. (DUF ¶ 33.) Plaintiff emphasizes that with respect to Judaism and Christianity, the meeting addressed only a few minor changes. In contrast, at least 83 new suggestions were made regarding the edits on Hinduism. (PDF ¶ 89.) Ultimately, Drs. Bajpai and Witzel agreed on many of the edits, with the exception of a few subject areas, which reflect the content issues raised in this litigation. (DUF ¶ 33.)

Subsequent to the meeting, an SBE committee worked with CDE staff to review all of the edits and corrections that the SBE committee deemed appropriate. (DUF ¶ 34.) CDE and SBE staff created a new set of recommendations that reflected the scholarly perspectives, public comment and SBE concerns (the "February 27 Edits and Corrections List"). (Id.) Four members of the SBE committee met on February 27, 2006 at a public meeting. The February 27 Edits and Corrections List was posted on the CDE website prior to the meeting. (DUF ¶ 35.) Written comments received by the public regarding the posted list were forwarded to committee members prior to the meeting. (Id.) Approximately 104 people gave public testimony at the hearing, including CAPEEM members. (DUF ¶ 36.) Defendants maintain that those that spoke for and against the HEF/VF edits spoke for approximately equal amounts of time. (Id.) The SBE designated two hours for public comment, and there were additional people who would have spoken had time allowed. (Id.) After the two-hour public comment period, the SBE recommended approval of the edits, consistent with the SBE/CDE staff recommendations. (DUF ¶ 37.)

Plaintiff contends these new recommendations were not based on scholarly perspectives and many of the recommendations showed disdain for Hindus. (RDF ¶ 6.) At the February 27 meeting, plaintiff maintains that only the Hindu participants were required to identify themselves as either "for" or "against" the HEF/VF edits and this permitted President Green to manipulate the time allowed to those speaking against the edits. (RDF ¶s 7-8.)

On February 27, 2006, the SBE committee recommendations were sent to the SBE for the regularly scheduled SBE March meeting. On March 8, 2006, the SBE held a public meeting; approximately 49 people addressed the SBE regarding the textbooks and proposed edits. After approximately two hours of public comment, the SBE adopted the SBE/CDE staff recommended edits to the sixth grade history-social science textbooks. (DUF ¶ 38.)

Plaintiff emphasizes that in rendering its final decision, the SBE ignored many of the recommendations of the Commission. Most glaringly, the Commission had recommended rejecting the Oxford University Press ("OUP") textbook by a 14-0 vote. (PDF ¶ 20.) CAPEEM member, Karthik Venkataramani, along with some HEF members, had met with OUP representatives, and OUP had agreed to make changes to improve the presentation of Hinduism. (PDF ¶ 23.) OUP representatives had agreed with HEF's suggestions, noting that the OUP author "was very amenable to the changes and saw merit in [HEF's] comments." (PDF ¶ 192.) Yet, ultimately, plaintiff asserts many of the more egregious portions of the OUP and other texts were not changed.*fn8 In contrast, the ICS worked with OUP to make changes to the chapter on Judaism which were accepted by the SBE. (PDF ¶ 22.)

Defendants maintain, on the other hand, that throughout the textbook adoption process, the SBE received extensive public comment from those both supporting and opposing the HEF/VF edits. (DUF ¶s 39-40.) Defendants claim members of CAPEEM participated throughout the process, advocating for the HEF/VF edits in both written comments and also by participating in the public meetings. (DUF ¶ 39.) Ultimately, defendants assert the SBE considered all perspectives equally and rendered its final decision about the HEF/VF edits based on scholarly consensus. (DUF ¶ 45.)

However, plaintiff contends, contrary to defendants, that the Hindu groups supporting the HEF/VF edits were subjected to different procedures during the process, including:

(1) defendants rejected suggestions from VF that were not in the correct format, and CDE included only those VF comments that consisted of "specific edits and corrections" (PDF ¶ 6); on the other hand, the CIE, an Islamic advocacy group that participated in the process, did not provide specific edits and corrections, yet defendants came up with suggestions based on the "narrative evaluation" submitted by CIE (PDF ¶ 7); (2) defendants imposed arbitrary deadlines on Hindus supporting the HEF/VF edits, including the improper rejection of a CAPEEM member's submissions as untimely (PDF ¶ 18), and imposing special deadlines on their groups with respect to submissions to the Ad Hoc Committee (PDF ¶ 19); to the contrary, opponents of the HEF/VF edits, like Dr. Witzel, faced no similar deadlines; (3) during various public meetings, defendants asked Hindus to identify themselves as being either "for" the HEF/VF edits or "against" them before being permitted to speak (PDF ¶ 147).

Plaintiff also asserts that defendants treated Hindus supporting the HEF/VF edits differently when making decisions on content. For example, when Jewish participants objected to treating Christianity as an improvement over Judaism, defendants approved changes to correct such claims. (PDF ¶ 171.) However, when Hindu participants asked for removal of the depiction of Buddhism as an improvement over Hinduism, their requests were denied. (PDF ¶ 172.) Additionally, plaintiff contends that while defendants conceded the request of Jewish participants to capitalize the letter "g" in "god," similar requests by Hindus resulted in changing all instances of the words "gods" and "goddesses" to the word "deities" with respect to the Hindu religion. (PDF ¶ 176.) Plaintiff also asserts that the request of Jewish participants to provide an insider perspective of their religion, such as by using the version of the Ten Commandments from the Hebrew Bible instead of the Christian Bible and removing references to the Christian Bible in the chapter on Judaism, were granted. However, defendants did not grant requests by Hindus to provide an insider's perspective of their beliefs. (PDF ¶s 177-179.) Similarly, plaintiff points out that defendants granted the request of Jewish participants to remove references to the alleged belief of Jews having higher social status than the Samaritans, but did not grant the request of Hindu participants to remove the offensive sections of the textbooks attributing an oppressive caste system to Hinduism. (PDF ¶s 180-181.) Finally, plaintiff asserts defendants took action to ensure that Judaism was treated with sensitivity and asked the expert on Judaism to work with the expert on Christianity, when a controversy arose about blaming Jews for the arrest of Jesus. (PDF ¶ 166.) Plaintiff alleges similar sensitivity was not applied to Hinduism. (Id.)

Shortly after the adoption of the edits, on March 9, 2006, CAPEEM formed for the purpose of promoting "an accurate portrayal of the Hindu religion in the public education system of the State of California." (DUF ¶ 50.) CAPEEM is comprised of Hindu and Indian parents who have children currently attending public schools in the first through sixth grades in California (and will use the material approved and adopted by the SBE) and who assert their own interests as well as the interests of their children. Certain of CAPEEM's individual member-parents participated, together with other Hindu groups, in the sixth-grade history-social science textbook adoption process. (See Mem. & Order, filed Mar. 25, 2008 [Docket #108], at 6.)

CAPEEM filed the instant action on March 14, 2006, and filed the operative complaint, the second amended complaint, on August 25, 2006, alleging violations of the Equal Protection, Establishment and Free Speech and Association Clauses of the Constitution, pursuant to 42 U.S.C. § 1983. By the action, plaintiff "challenges the derogatory and unequal treatment of the Hindu religion in social sciences textbooks used in the sixth grade in the California public education system." (SAC ¶ 1.1.)*fn9

More specifically, plaintiff challenges defendants' refusal to revise certain textbooks to remove allegedly offensive and derogatory references to the Hindu religion. "Plaintiff challenges the substance of the final edits as well as the (disparate) procedures followed by Defendants in adopting certain edits and rejecting others." (SAC ¶ 1.2.) Plaintiff seeks injunctive relief with respect to its claims prohibiting defendants from:

1. "treating Plaintiff or its members differently because of their religion, ethnicity, political beliefs, or national origin;"

2. "promoting other religions (and portraying other religions in a more favorable light) at the expense of the religious ...

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