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California Parents for Equalization of Educational Materials v. Torlakson

United States District Court, N.D. California

July 13, 2017

TOM TORLAKSON, ET AL., Defendants.



         Plaintiffs are California Parents for the Equalization of Educational Materials (“CAPEEM”), an organization formed to promote an accurate portrayal of the Hindu religion in California public schools, as well as several Hindu parents, individually and on behalf of their school-age children. See generally Compl. (dkt. 1). They have brought suit against several officials at the California Department of Education and members of the State Board of Education (collectively, “the State Defendants”), [1] as well as four California School Districts, [2] alleging discrimination against Hinduism in the California public school curriculum. Id. The State Defendants move to dismiss. See generally MTD (dkt. 88). The Court hereby GRANTS the motion in part, and DENIES it in part.

         I. BACKGROUND

         The California State Board of Education (“SBE”) drafts and oversees the policies implemented by the California Department of Education (“CDE”). Compl. ¶ 25. The SBE is responsible for approving and overseeing statewide curriculum content, creating the curriculum framework for kindergarten through twelfth grade, and adopting instructional materials for kindergarten through eighth grade. Id.

         In 1998, the SBE adopted the History-Social Science Content Standards for California Public Schools, Kindergarten Through Grade Twelve (“Standards”), which provide an outline of the topics and content that California public school students need to acquire at each grade level. Id. ¶ 27. In 2016, the SBE adopted the 2016 History-Social Science Framework (“Framework”). Id. ¶ 43. The Framework guides teachers, administrators, and publishers in the teaching of history and social science, providing an overview of the historical material corresponding to each of the Standards. Id. ¶ 45. Notably, students do not read either the Standards or the Framework. See id. But textbooks adopted by school districts across California must be aligned with both. Id. ¶ 31.

         Plaintiffs allege discrimination against the Hindu religion-and endorsement of the Abrahamic faiths[3]-in the Framework adoption process and in the content of both the Standards and the Framework. Id. ¶¶ 32-42, 47, 93.

         Plaintiffs' claim of discrimination in the Framework adoption process is based on the State's alleged reliance on an anti-Hindu report and proposed edits, secret expert consultation with respect to Hinduism but not other religions, and disparate treatment in the State's handling of edits proposed by various religious groups. Compl. ¶¶ 48-60, 61-74, 75-90. The Framework adoption process included several public hearings, opportunities for public comments, and consideration of proposed edits submitted in writing by organizations, academics, and members of the public. Id. ¶ 43. During the public comment portion of the adoption process, a group of history professors under the name “South Asia Faculty Group” (SAFG) submitted a report on the draft Framework, which included recommended edits. Id. ¶ 48. Plaintiffs allege that members of the SAFG have anti-Hindu bias and that SAFG's report was “patently anti-Hindu, ” as it recommended edits that were disparaging to Hindus and Hinduism. Id. ¶¶ 52-60, 80-83. Plaintiffs further claim that the SBE gave “exalted treatment” to the SAFG report. Id. ¶ 73.

         Plaintiffs also allege discrimination against Hindus in the content of the Standards. Id. ¶¶ 32-42. They claim, among other things, that unlike its treatment of other religions, the Standards do not describe Hinduism as virtuous, and make no mention of Hinduism's divine origins and central figures. Id.

         Finally, Plaintiffs allege discrimination in the content of the Framework. Id. ¶ 93. This claim is based on the Framework “unfairly attribut[ing] the caste system to Hinduism” by teaching that it “was a social and cultural structure as well as a religious belief.” Id. ¶ 99 (emphasis added). Plaintiffs do not argue that this statement is necessarily false-rather, they claim that it is a subject of scholarly debate, and assert that “irrespective of the accuracy of the language, it is certainly derogatory and inconsistent with . . . the treatment of other religions in the Framework.” Id. ¶82; see also id. ¶ 102 (alleging that the Framework “describes Hinduism as a negative influence on then-existing societal norms while describing other religions as a positive influence on negative aspects of society”). Plaintiffs further allege that the Framework depicts Hinduism as a mere social construct, “strip[ping] the Hindu belief system of any divine origins, ” while “endorsing Old and New Testament religious doctrine [by] depicting biblical stories as history.” Id. ¶¶ 95, 104.

         Plaintiffs brought suit in this Court in February 2017, alleging pursuant to 42 U.S.C. § 1983 (1) denial of substantive Due Process by interference with the liberty interest of parents to direct the education of their children; (2) violation of the Establishment Clause of the First Amendment; (3) violation of the Free Exercise Clause of the First Amendment; and (4) violation of the Equal Protection Clause of the Fourteenth Amendment. See generally Compl. Plaintiffs seek declaratory and injunctive relief. See id.

         State Defendants move to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). MTD. Plaintiffs oppose the motion, Opp'n (dkt. 100), and the State Defendants replied in support of their motion, Reply (dkt. 109). Defendants also requested that the Court take judicial notice of the complete text of the Standards and Framework, RJN (dkts. 88-1, 110), and Plaintiffs agree that the Court may do so.[4] Response to RJN (dkt. 100-4). The Court held a motion hearing on June 16, 2017. See Minutes (dkt. 116).


         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) asserts that the complaint fails to state a claim upon which relief may be granted. Dismissal may be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). For purposes of evaluating a motion to dismiss, a court “must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.


         The State Defendant have filed a motion to dismiss each of the four constitutional claims in the complaint for failure to state a claim. As discussed below, the Court grants the motion to dismiss with prejudice as to (A) the substantive due process claim, and (B) the Free Exercise claim. The Court denies the motion as to (C) the Establishment Clause claim. Finally, the Court grants the motion to dismiss with prejudice as to (D) the Equal Protection claim.

         A. Substantive due process claim

         Plaintiffs claim that the Standards and Framework violate their substantive due process right under the Fourteenth Amendment by “interfering unreasonably with the liberty interests of parents to direct the upbringing and education of their children[.]” Compl. ¶ 152. At the hearing, Plaintiffs admitted that their claims fit most squarely under the Equal Protection and Establishment Clauses, not substantive due process, which they included “as a catch-all” to preserve the claim.

         State Defendants correctly argue that the Ninth Circuit foreclosed the substantive due process claim in Fields v. Palmdale School District, 427 F.3d 1197 (9th Cir. 2005), amended by 447 F.3d 1187 (9th Cir. 2006). See MTD at 7. The court held in affirming dismissal of a substantive due process claim that “the constitution does not vest parents with the authority to interfere with a public school's decision as to how it will provide information to its students or what information it will provide.” Fields at 1206. Parents' substantive due process right to direct the education of their children allows them to choose whether to send their children to public or private school, but does not allow them to “dictate the curriculum” in public schools. Fields at 1205-06.[5]

         Plaintiffs argue that the holding in Fields is narrow, only applying to sex education in public schools. See Opp'n at 24. Plaintiffs are incorrect. See Fields, 427 F.3d at 1206 (“there is no constitutional reason to distinguish [concerns regarding sex education] from any of the countless moral, religious, or philosophical objections that parents might have to other decisions of the School District.”). In the amended Fields opinion, the court made clear that “the central holding of [its] opinion” is that parents “do not have a fundamental due process right generally to direct how a public school teaches their child” or “to restrict the flow of information in the public schools.” Fields, 447 F.3d at 1190 (citations omitted). The holding in Fields therefore applies to school curricula generally, not simply curricula regarding sex education.

         Plaintiffs also argue that the amended opinion in Fields allows a claim where the State's violation of the First Amendment infringes the due process right of plaintiff parents.[6]See Opp'n at 25. In fact, the court noted that because the parties made no First Amendment arguments on appeal, the “holding does not . . . consider the limitations that the First Amendment imposes upon the actions of all government agencies, including school boards.” Fields, 447 F.3d at 1189-90. That statement simply acknowledged that a parent's inability to mount a substantive due process challenge to public school curricula does not preclude a separate challenge on First Amendment grounds. Indeed, Plaintiffs have raised two such First Amendment claims here.

         Because binding Ninth Circuit law establishes that Plaintiffs do not have the substantive due process right they claim here, the Court GRANTS the motion to dismiss this claim, with prejudice.

         B. Free Exercise claim

         Plaintiffs claim that the Standards and Framework violate the Free Exercise Clause because they are derogatory towards Hinduism, and students must learn this derogatory depiction. Compl. ¶¶ 147-49. Defendants argue that Plaintiffs fail to state a claim because Plaintiffs have not pled and cannot plead a burden on any religious practice, which is a threshold requirement for a Free Exercise claim. MTD at 8. At the hearing, Plaintiffs admitted that their claims fit most squarely under the Equal Protection and Establishment Clauses, not the Free Exercise Clause, which they included “as a catch-all” to preserve the claim.

         The Free Exercise Clause of the First Amendment bars laws “prohibiting the free exercise [of religion.]” U.S. Const. amend. I. Courts traditionally analyzed Free exercise claims under the balancing test established in Sherbert v. Verner, 374 U.S. 398, 402-03 (1963) (holding that government action which substantially burdens a religious practice must be both justified by a substantial government interest and narrowly tailored to serve that interest). The Court modified the Sherbert test in Employment Division, Oregon Dep't of Human Resources v. Smith, holding that the test did not apply in challenges to laws that are neutral and generally applicable. 494 U.S. 872, 885 (1990), superseded on other grounds by statute. Such laws face rational basis review rather than strict scrutiny. Id. at 879.

         “Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability.” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 523 (1993) (citing Smith, 494 U.S. 872) (emphasis added). Smith did not remove the preliminary requirement that there be a burden on some religious practice. See id.; accord Parker v. Hurley, 514 F.3d 87, 99 (1st Cir. 2008) (Smith “did not alter the standard constitutional threshold question” of “whether the plaintiff's Free Exercise is interfered with at all.”).

         The Ninth Circuit has explicitly rejected the argument that after Smith, plaintiffs are not required to demonstrate a substantial burden on their exercise of religion. See Am. Family Ass'n, Inc. v. City & Cty. of S.F., 277 F.3d 1114, 1123-24 (9th Cir. 2002). In American Family Association, the plaintiff religious group sponsored an advertising campaign espousing the view that homosexuality is a sin, and brought suit when San Francisco adopted a resolution formally denouncing the campaign. Id. at 1118-19. The group alleged that the city's disapproval of its message had a chilling effect on its free exercise of religion. Id. at 1124. The Ninth Circuit affirmed dismissal for failure to state a claim because “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden” and the “complaint d[id] not otherwise allege any specific religious conduct that was affected by the Defendants' actions.” Id.

         Plaintiffs claim that the Standards and Framework violate the Free Exercise Clause because they are neither neutral nor generally applicable (and, presumably, do not withstand strict scrutiny). See Compl. ¶ 147. However, Plaintiffs fail to satisfy the threshold requirement-pleading a burden on their Free Exercise. Plaintiffs acknowledge that a Free Exercise claim must be based on regulatory or compulsory government action, Opp'n at 23, but they do not “allege any specific religious conduct that was affected by the Defendants' actions, ” see American Family, 277 F.3d at 1124. Plaintiffs acknowledged at the hearing that they had not pled a burden on religious exercise “in the sense of worship.” Rather, Plaintiffs argue that public school students are required to learn the information described in the Standards and Framework, and that compelling student Plaintiffs to study and be tested on material that is “not neutral on religion and conflicts with their fundamental religious beliefs” violates the Free Exercise Clause. Opp'n at 23-24. But the complaint does not allege that students ever read or even see the Framework. See ...

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