United States District Court, N.D. California
CALIFORNIA PARENTS FOR THE EQUALIZATION OF EDUCATIONAL MATERIALS, ET AL., Plaintiffs,
TOM TORLAKSON, ET AL., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
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”),
well as four California School Districts,  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.
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.
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.
allege discrimination against the Hindu religion-and
endorsement of the Abrahamic faiths-in the Framework adoption
process and in the content of both the Standards and the
Framework. Id. ¶¶ 32-42, 47, 93.
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.
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.
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.
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
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
Response to RJN (dkt. 100-4). The Court held a motion hearing
on June 16, 2017. See Minutes (dkt. 116).
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.”
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.
Substantive due process claim
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.
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.
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
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.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.
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
Free Exercise claim
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.
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.
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.”).
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'
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 ...