California Parents for the Equalization of Educational Materials et al v. Torlakson et al

Filing 236

ORDER by Judge Charles R. Breyer granting 163 Defendants' Motion for Summary Judgment; denying 215 Plaintiffs' Cross-Motion for Summary Judgment. (crblc1, COURT STAFF) (Filed on 2/28/2019)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CALIFORNIA PARENTS FOR THE
EQUALIZATION OF EDUCATIONAL
MATERIALS, ET AL.,

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Plaintiffs,

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v.

United States District Court
Northern District of California

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TOM TORLAKSON, et al.,

Case No. 17-cv-00635-CRB
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT, DENYING
PLAINTIFFS’ CROSS-MOTION FOR
SUMMARY JUDGMENT

Defendants.

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In this case, Plaintiffs, the organization California Parents for the Equalization of

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Educational Materials (“CAPEEM”) and several Hindu parents, allege that the California

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public school curriculum discriminates against Hindus. See generally Compl. (dkt. 1).

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The sole remaining claim in the case is whether the History-Social Science Content

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Standards for California Public Schools, Kindergarten Through Grade Twelve (the

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“Standards”), adopted in 1998, and the History-Social Science Framework (the

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“Framework”), adopted in 2016, violate the Establishment Clause of the Constitution. See

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Order re MTD (dkt. 119) at 9–16, 21. In light of the Court’s earlier rulings, in order to

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prevail, Plaintiffs need to demonstrate that the complained-of government action has the

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principal or primary effect of advancing or inhibiting religion. See Lemon v. Kurtzman,

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403 U.S. 606, 612–13 (1971); Order re MTD at 10–13 (rejecting Plaintiffs’ arguments

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under other two Lemon prongs). The evidence does not support such a ruling.

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Accordingly, as explained below, the Court GRANTS Defendants’1 Motion for Summary

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Defendants are Tom Torlakson (State Superintendent and Director of Education), Tom Adams
(Deputy Superintendent), Stephanie Gregson (Director of the Curriculum Frameworks) and

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Judgment (hereinafter “D. MSJ”) (dkt. 163) and DENIES Plaintiffs’ Cross-Motion for

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Summary Judgment (hereinafter “P. MSJ”) (dkt. 215).2

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I.

BACKGROUND

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Individual school districts decide precisely what is taught in California public

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school classrooms. See Cal. Educ. Code § 60000(b) (West 2019) (“there is a need to

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establish broad minimum standards and general educational guidelines for the selection of

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instructional materials for the public schools, but . . . because of economic, geographic,

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physical, political, educational, and social diversity, specific choices about instructional

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materials need to be made at the local level”); see also id. § 60210(a) (local educational
agency may use materials aligned with content standards); id. § 60618(b) (school districts

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may use model standard in developing district standards); see also D. MSJ Ex. 1 (dkt. 165-

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1) (“Standards”) at 0005 (“The standards serve as the basis for statewide assessments,

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curriculum frameworks, and instructional materials, but methods of instructional delivery

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remain the responsibility of local educators.”). But state-wide materials provide the

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general content standards upon which the individual school districts rely. Two such state-

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wide materials are at issue in this case: the Standards and the Framework.

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A.

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The California legislature required the State Board of Education (SBE) to adopt

Standards

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model content standards in major subject areas, including history and social science. Cal.

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Educ. Code §§ 60602.5(a)(1), 60605, 60618. These Standards outline the topics and

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content that California public school students need to acquire at each grade level. See

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Standards at 0004. The SBE created the Standards in 1998, see Standards at 0002, and

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they have not changed since.

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members of the California State Board of Education; Michael Kirst; Ilene Straus; Sue Burr; Bruce
Holaday; Feliza I. Ortiz-Licon; Patricia Ann Rucker; Nicolasa Sandoval; Ting L. Sun; and Trish
Boyd Williams, each sued in their official capacities.
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Because the Court finds this matter suitable for resolution without oral argument, it vacated the
hearings on this motion. See Civil Local Rule 7-1(b).
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1.

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Standards Adoption Process

Notably, Plaintiffs did not include in their complaint any allegations about the
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standards adoption process, nor do they list the standards adoption process as a basis for
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their Establishment Clause claim. See Compl. ¶¶ 27–42 (factual allegations about
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Standards, addressing only their content); id. ¶¶144–46 (Establishment Clause claim based
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on content of Standards, process of adopting Framework, and content of Framework).
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This is presumably because a claim based on the 1998 standards adoption process would
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be time-barred. However, Plaintiffs do refer to the “[d]isfavored treatment of Hinduism in
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the development of the Standards” in their summary judgment motion. See P. MSJ at 3.
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They assert that, in drafting the Standards, “[n]o apparent effort was made to obtain input
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from a person affiliated with a Hindu organization,” unlike persons from other religious
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organizations, and that an Islamic group alerted the Standards Commission to language
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about religion “developing,” yet the Commission did not apply that advice to Hinduism.
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Id. at 4–5.
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On the first point, Plaintiffs rely on an unsworn article about the standards adoption
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process, by someone without apparent personal knowledge of the facts, which they submit
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for the truth of the matter, and which is therefore inadmissible hearsay. See id. (citing
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Katon Decl. (dkt. 231-2) Ex. B (Fogo article)). On the second point, Plaintiffs rely on a
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selection of documents a CAPEEM board member copied from the California State
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Archives, representing some proposed edits to the 1998 standards. See id. (citing Kumar
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Decl. Ex. A (archives excerpts)). Although Defendants object that these archive materials
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lack foundation and are hearsay, see D. Opp’n to P. MSJ (dkt. 225) at 4, the declarant sets
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out in his declaration the circumstances under which he copied them, see Kumar Decl. ¶ 9,
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and Plaintiffs do not truly offer them for the truth of any particular edit. Moreover, it
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seems an uncontroversial proposition that these represent some fraction of the feedback the
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Commission received about the Standards.
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Plaintiffs make clear in their reply brief that the standards adoption process is still
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not a standalone basis for their claim. They explain: “The Standards are the violation.
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Standards Commission actions from the past are evidence of the violation—not the

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violation itself.” P. Reply re MSJ (dkt. 227) at 3. Further, they rightly quote the Ninth

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Circuit as observing that “reasonable observers have reasonable memories, and [the

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Court’s] precedents sensibly forbid an observer to ‘turn a blind eye to the context in which

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[the] policy arose.’” See id. at 4 (quoting Trunk v. City of San Diego, 629 F.3d 1099,

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1118 (9th Cir. 2011)); see also Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S.

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753, 780 (1995) (O’Connor, J., concurring in part and concurring in the judgment) (“[T]he

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reasonable observer in the endorsement inquiry must be deemed aware of the history and

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context of the community and forum in which the religious display appears.”).
Accordingly, the Court will consider Plaintiffs’ evidence and arguments about the

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standards adoption process for that purpose.

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2.

Standards Content

The Standards purportedly “require students not only to acquire core knowledge in

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history and social science, but also to develop the critical thinking skills that historians and

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social scientists employ to study the past and its relationship to the present.” Id. at 0006.

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Plaintiffs are primarily concerned with a portion of the “Grade Six World History and

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Geography: Ancient Civilizations” section of the Standards, which, on half of a page, lists

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seven topics under the heading of “Students analyze the geographic, political, economic,

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religious, and social structures of the early civilizations of India.” See P. Opp’n to D. MSJ

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(dkt. 216-1) at 9; P. MSJ at 13; Standards at 0032.

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B.

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The legislature directed the SBE to adopt model curriculum frameworks to serve as

Framework

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guidelines for local districts, filling in some of the historical material that corresponds to

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each of the Standards. See Cal. Educ. Code §§ 60000, 60001, 60005, 60200(c); Standards

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at 0006 (“The standards do not exist in isolation. The History-Social Science Framework

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will be revised to align with the standards. . . .Teachers should use these documents

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together.”). The SBE adopted the History-Social Science Framework at issue in this case

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in 2016, see D. MSJ Ex. 2 (dkt. 165-2), and that process is part of this case, see Compl.
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¶¶ 144–46.

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1.

Framework Adoption Process

The Framework adoption process began in 2008, when the SBE approved a plan to
update the existing framework. D. MSJ Ex. 37–38 (dkt. 165-5); McDonald Decl. (dkt.

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163-1) ¶ 2. From late March to September 2008, the California Department of Education

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(CDE) and SBE solicited applications for membership on a Curriculum Framework and

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Evaluation Criteria Committee (CFCC). McDonald Decl. ¶¶ 2–3; see also 5 C.C.R. § 9511

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(allowing establishment of CFCC, setting forth composition and membership

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qualifications for CFCC members). The SBE received 81 applications, and, in November

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2008, appointed twenty individuals to a CFCC. McDonald Decl. ¶¶ 3–5. The CFCC met

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for five separate two-day sessions, which were publicly noticed, open to the public, and

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included a period for public comment. Id. ¶ 6. It produced a draft updated framework,

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which the Instructional Quality Commission (IQC) voted to release to a 60-day public

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review and comment period. Id. ¶ 7. In July of 2009, however, citing fiscal troubles, the

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Governor essentially suspended all work related to the curriculum frameworks. Id.

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The SBE resumed work on the framework in September of 2014, releasing a revised

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timeline. Id. ¶ 8. Later that month, the IQC voted to release for a 60-day public review

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and comment period the existing draft framework with certain CDE proposed edits. Id.

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During the first 60-day review period, CDE received more than 700 public comments from

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over 480 different commenters. Id. ¶ 9. In February 2015, Executive Director Tom

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Adams stated in a IQC meeting that “if funding is provided[,] CDE will contract with

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experts to review the proposed edits to the course description chapters as well as a

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professional writer to prepare new drafts.” D. MSJ Ex. 62 at 1730. In August of 2015,

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Tom Adams emailed a member of CAPEEM, stating “the decision of whether experts are

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needed will be decided after the October 8–9 meeting.” Kumar Decl. Ex. E (dkt. 215-1) at

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PLS00153.

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For two days in October 2015, the IQC’s History-Science Subject Matter

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Committee (HSS SMC) considered and heard public comment on a revised framework
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draft that incorporated proposed revisions based on public comments, and forwarded it to

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the full IQC with additional edits discussed at the meeting. D. MSJ Exs. 65–67; Gregson

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Decl. ¶¶ 8–9. The HSS SMC also decided at that time not to recommend that the SBE

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solicit applications for content review experts to opine on the draft. D. MSJ Ex. 67 at

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1774. In November 2015, a group of history professors identifying themselves as the

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“South Asia Faculty Group” (“SAFG”) submitted a report on the draft framework, with

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proposed edits. Order re MTD at 3, 18; D. MSJ Ex. 18 (November 18, 2015 SAFG

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submission). The SAFG later submitted additional feedback. See D. MSJ Ex. 19

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(February 24, 2016 letter with “extended corrections”); id. Ex. 20 (March 23, 2016 letter
“to clarify some of our rejected edits”); id. Ex. 21 (May 17, 2016 letter “to register our

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acceptance in the main of the last round of edits”). Plaintiffs assert that Tom Adams

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secretly recruited the SAFG to provide feedback on Hinduism in the Framework,3 without

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publicly acknowledging that he had handpicked the group to obtain a desired (anti-Hindu)

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viewpoint. See P. Opp’n to D. MSJ at 5–6.
After hearing public comment and accepting certain proposed edits at its November

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2015 meeting, the IQC voted to recommend the resulting framework draft to the SBE,

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triggering another 60-day public review and comment period, between December 17, 2015

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and February 29, 2016. Id. ¶ 10; Gregson Decl. (dkt. 163-3) ¶ 11 (attaching November

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2015 meeting minutes), D. MSJ Ex. 68 (dkt. 165-5) at 1777–79, 1783–84. During that

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period, the CDE received over 10,000 e-mailed comments and thousands of additional

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printed comments. McDonald Decl. ¶ 10. At the March 2016 HSS SCM meeting, the

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committee reviewed the public comments received during the last comment period and

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summarized recommendations, then heard public comment from 90 individuals, and voted

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to recommend additional edits to the Framework. Gregson Decl. ¶¶ 12–14; D. MSJ Exs.

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Plaintiffs point to an email by an SAFG member, which states, “. . . I spoke with Tom Adams on
Friday. We are asked to submit a short, concise report. . . .” See P. MSJ at 9–10. This email
appears to be hearsay. See Fed. R. Evid. 801(c); Orr v. Bank of America, NT & SA, 285 F.3d
764, 783 (9th Cir. 2002) (to defeat summary judgment, opponent “must respond with more than
mere hearsay and legal conclusions.”) (internal quotation marks omitted).
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69–71 (dkt. 165-5). At its May 2016 meeting, the IQC, after discussion and public

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comment, approved a majority of those edits, and made additional changes such as

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rejecting edits that would have replaced references to ancient India with “South Asia.”

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Gregson Decl. ¶ 15; D. MSJ Ex. 72 (IQC minutes of May 19–20, 2016 meeting) at 1801;

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id. Ex. 73 (July 2016 CBE agenda summarizing process) at 1809; Cos Decl. ¶ 11.

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On July 14, 2016, the SBE voted unanimously to adopt the current Framework. See
Cos Decl. ¶ 13; D. MSJ Ex. 75 at 1891–95.
2.

Framework Content

The Framework describes itself as having “a focus on student inquiry,” D. MSJ Ex.
2 (dkt. 165-1) (“Framework”) at 0074, as encouraging students to “grapple with multiple

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and often competing pieces of information,” and as emphasizing “history as a constructed

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narrative that is continually being reshaped,” “rich with controversies and dynamic

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personalities,” id. at 0085. Although the Framework itself is over 800 pages, Framework

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at 0070–0923, Plaintiffs are primarily concerned with a six-page portion of the Grade Six

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Framework entitled “The Early Civilizations of India,” see P. Opp’n to D. MSJ at 5; P.

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MSJ at 16–18; Framework at 0242–47.

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Both the Standards and the Framework address the role of several major world

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religions in shaping history. See generally Standards; Framework; see also Framework

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Appendix F at 0864 (“much of history, art, music, literature, and contemporary life are

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unintelligible without an understanding of the major religious ideas and influences that

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have shaped the world’s cultures and events.”). The Framework includes an Appendix

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addressing the challenging role of religion in teaching history and social science—it quotes

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from the First Amendment as “the hallmark of every social studies classroom,” explains

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that “public schools may not promote or inhibit religion,” and directs that “religion and

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religious convictions, as well as nonbelief” be “treated with respect.” Id. at 0865. It states

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that “[t]he school’s approach to religion is academic, not devotional,” that “[t]he school

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may include study about religion as part of the history-social science curriculum, but it

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may not sponsor the practice of religion,” and that “[t]he school may educate about all
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religions but may not promote or denigrate any religion.” Id. at 0866. It also provides that

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“Classroom methodologies must not include religious role-playing activities or simulations

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or rituals or devotional acts.” Id. at 0867.

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Students do not read either the Standards or the Framework. Order re MTD at 2.

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C.

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Plaintiffs brought suit in this Court in February 2017, alleging pursuant to 42 U.S.C.

Procedural History

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§ 1983 (1) denial of substantive due process by interference with the liberty interest of

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parents to direct the education of their children; (2) violation of the Establishment Clause

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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

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generally Compl. Defendants moved to dismiss all claims pursuant to Federal Rule of

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Civil Procedure 12(b)(6). MTD (dkt. 88). The Court dismissed with prejudice Plaintiffs’

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substantive due process claim, Free Exercise claim, and Equal Protection claim. See Order

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re MTD at 21. As to Plaintiffs’ Establishment Clause claim, the Court recognized that

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Plaintiffs could state a claim by meeting any of the three prongs of the Lemon test, but

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held that they failed to do so as to either the first or the third prong. See id. at 10–13. The

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Court held that Plaintiffs had stated a claim as to the second prong of the Lemon test,

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which asks whether the government action has the principal or primary effect of enhancing

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or inhibiting religion. Id. at 13–16. After discussing a letter quoted in the Complaint from

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a Hindu student who felt humiliated by a role-playing exercise about caste, the Court held:

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In light of the Supreme Court’s admonition that courts should
be “particularly vigilant in monitoring compliance with the
Establishment Clause in elementary and secondary schools,”
Edwards, 482 U.S. at 583–84, the Court will infer at this point
that this sixth grader is reasonable, or that a reasonable sixth
grader would perceive the same message [that the primary
message from the curriculum is that Hinduism is cruel and
unjust], see Usher, 828 F.2d at 561 (in evaluating a motion to
dismiss, a court must draw all reasonable inferences in favor of
the plaintiff).

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Id. at 15–16. In so ruling, the Court distinguished California Parents for the Equalization

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of Educational Materials v. Noonan, 600 F. Supp. 2d 1088 (E.D. Cal. 2009), a very similar
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case in which CAPEEM alleged that the 2005-2006 history-social science textbook

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adoption process discriminated against Hinduism, explaining that “Noonan adjudicated a

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motion for summary judgment, which involves a different standard than a motion to

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dismiss.” 4
Defendants now move for summary judgment, arguing that the Standards and

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Framework do not primarily communicate disapproval of Hinduism. See D. MSJ.

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Plaintiffs oppose Defendants’ motion, and file their own cross-motion for summary

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judgment, arguing that the “Standards and Framework violate the Establishment Clause by

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denigrating Hinduism” under the second Lemon prong. See P. MSJ at 12; P. Opp’n to D.
MSJ at 7. 5

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II.

LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). A fact is material if it could affect the outcome of the case under

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governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of

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material fact is genuine if the evidence, viewed in the light most favorable to the

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nonmoving party, “is such that a reasonable jury could return a verdict for the nonmoving

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party.” Id.
The party moving for summary judgment bears the initial burden of identifying

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those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a

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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On an

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issue on which it will have the burden of proof at trial, the moving party must affirmatively

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show that no reasonable jury could find other than in the moving party’s favor. Id. at 331

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(Brennan, J., dissenting).

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The textbooks at issue in that case were required to be aligned with the same Standards
challenged here, and the Framework that directly preceded the version challenged here. See
Noonan, 600 F. Supp. 2d at 1097.
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Defendants also object extensively to Plaintiffs’ evidence. See, e.g., D. Opp’n to P. MSJ at 15–
19; D. Obj. to P. Reply Ev. (dkt. 230). The Court only reaches those objections necessary to this
decision.
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Once the moving party meets its initial burden, the nonmoving party must go

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beyond the pleadings and show that there is a genuine issue for trial. Anderson, 477 U.S.

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at 250. The nonmoving party does this by citing to specific parts of the materials in the

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record or by showing that the materials cited by the moving party do not compel a

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judgment in the moving party’s favor. Fed. R. Civ. P. 56(c). Because the court has no

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obligation to “scour the record in search of a genuine issue of triable fact,” the nonmoving

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party must “identify with reasonable particularity the evidence that precludes summary

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judgment.” Kennan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). If the nonmoving party

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fails to raise a genuine issue as to any material fact, the moving party is entitled to
judgment as a matter of law. Anderson, 477 U.S. at 250. In determining whether there is a

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genuine issue for trial, the court does not weigh the evidence, assess the credibility of

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witnesses, or resolve issues of fact. Id. at 249.

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III.

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DISCUSSION
This Order first discusses the fundamentals of Establishment Clause jurisprudence,

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and then the evidence in the Standards and Framework that bears on Plaintiffs’

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Establishment Clause claim. It applies the facts of this case to the law, and concludes that

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the challenged materials do not have the primary effect of denigrating Hinduism.

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A.

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“The clearest command of the Establishment Clause is that one religious

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denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S.

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228, 244 (1982). In Lemon, 403 U.S. at 612–13, the Supreme Court explained that

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governmental action is permissible under the Establishment Clause if (1) it has a secular

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purpose, (2) the “principal or primary effect” neither advances nor inhibits religion, and (3)

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it does not foster “excessive state entanglement” with religion. At issue in this case is the

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second, primary effect, prong. That prong asks “whether it would be objectively

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reasonable for the government action to be construed as sending primarily a message of

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either endorsement or disapproval of religion.” Vernon v. City of Los Angeles, 27 F.3d

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1385, 1398 (9th Cir. 1994). “A government practice has the effect of impermissibly

Establishment Clause Jurisprudence

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advancing or disapproving of religion if it is ‘sufficiently likely to be perceived by

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adherents of the controlling denominations as an endorsement, and by nonadherents as a

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disapproval, or their individual religious choices.’” Brown v. Woodland Joint Unified Sch.

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Dist., 27 F.3d 1373, 1378 (9th Cir. 1994).

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Courts are to assess a government action’s primary effect using a “reasonable

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observer standard.” Id. at 1378. “‘This hypothetical observer is informed as well as

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reasonable; we assume that he or she is familiar with the history of the government

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practice at issue.’” Id. (quoting Kreisner v. City of San Diego, 1 F.3d 775, 784 (9th Cir.

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1993, cert. denied, 510 U.S. 1044 (1994)). Because the standard is objective, a particular
observer’s lay or expert opinion is irrelevant. See Noonan, 600 F. Supp. 2d at 1118

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(rejecting use of experts in favor of hypothetical observer); Brown, 27 F.3d at 1382 (expert

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testimony irrelevant to primary effect test); Alvarado v. City of San Jose, 94 F.3d 1223,

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1232 (9th Cir. 1996) (“reasonable observer is not an expert on esoteric [matters], nor can

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he or she be turned into one by any publicity generated by plaintiffs’ lawsuit.”). The Ninth

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Circuit has explained that “[i]f an Establishment Clause violation arose each time a student

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believed that a school practice either advanced or disapproved of a religion, school

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curricula would be reduced to the lowest common denominator, permitting each student to

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become a ‘curriculum review committee’ unto himself.” Brown, 27 F.3d at 1379. A

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reasonable observer is also not aware of undisclosed intent. See McCreary Cty. v. ACLU,

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545 U.S. 844, 863 (2005) (“If someone in the government hides religious motive so well

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that the ‘objective observer, acquainted with the text, legislative history, and

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implementation of the statute,’ cannot see it, then without something more the government

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does not make a divisive announcement that in itself amounts to taking religious sides.”).

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The Ninth Circuit has recognized that when the challenged government action

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arises in elementary school instruction, the “reasonable observer” test should take into

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account the more impressionable and vulnerable nature of school-age children. Brown, 27

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F.3d at 1378–79. Courts are to be “particularly vigilant in monitoring compliance with the

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Establishment Clause in elementary and secondary schools.” Edwards v. Aguillard, 482
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U.S. 578, 583–84 (1987). This is because younger children are more vulnerable to the

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“subtle coercive pressure in the elementary and secondary public schools.” Lee v.

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Weisman, 505 U.S. 577, 592 (1992). 6 Balanced against this guidance is “the broad

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discretion of the school board to select its public school curriculum.” See Noonan, 600 F.

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Supp. 2d at 1116. The Supreme Court “has long recognized that local school boards have

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broad discretion in the management of school affairs” and that public education “is

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committed to the control of state and local authorities.” Bd. of Educ. v. Pico, 457 U.S.

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853, 863 (1982). “Judicial interposition in the operation of the public school system of the

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Nation raises problems requiring care and restraint,” and courts should only intervene if
“basic constitutional values” are “directly and sharply implicate[d].” Epperson v.

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Arkansas, 393 U.S. 97, 104 (1968).

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In fact, Brown held that the primary effect prong of the Lemon test asks whether an “objective
observer in the position of an elementary school student would perceive a message of . . .
disapproval [of religion].” Brown, 27 F.3d at 1379. Based on Brown and Noonan, see 600 F.
Supp. 2d at 1119 (“CAPEEM must show that an objective sixth grade student . . .”), the Court
previously held that the reasonable observer in this case is the reasonable sixth grader. See Order
re MTD at 14. Defendants argue that there is some authority suggesting that the Court should
view the reasonable observer as an adult. See D. Reply (dkt. 223) (citing Good News Club v.
Milford Sch., 533 U.S. 98, 119 (2001) (“We decline to employ Establishment Clause
jurisprudence using a modified heckler’s veto, in which a group’s religious activity can be
proscribed on the basis of what the youngest members of the audience might misperceive”);
Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1037–38 (9th Cir. 2010) (“a child’s
understanding cannot be the basis for our constitutional analysis.”)).
In Good News Club, the issue was whether the government’s rejection of an organization’s
request to hold weekly afterschool meetings in a school cafeteria violated the Establishment
Clause. 533 U.S. at 102–03. The Court held that the relevant community was the parents who
would choose whether their children would attend the meetings, not the children themselves, id. at
115, and that its cases about the impressionability of school children were irrelevant because
“when individuals who are not schoolteachers are giving lessons after school to children permitted
to attend only with parental consent, the concerns expressed in [such cases are] not present,” id. at
117. Good News Club is therefore distinguishable, because the material at issue here is the
curriculum intended to be taught by public schoolteachers to schoolchildren. In Newdow, the
Ninth Circuit was applying the “endorsement test,” not at issue here, and it relied on Good News
Club in rejecting “what a child reciting [the Pledge of Allegiance] may or may not understand
about the historical significance of the words being recited.” See 597 F.3d at 1037–38. The
circuit explained that “some school children who are unaware of its history may perceive the
phrase ‘under God’ in the Pledge to refer exclusively to a monotheistic God of a particular
religion,” but that “a reasonable observer” who was “aware of this history and origins of the
words” would not. Id. at 1038.
This Court agrees that a reasonable observer would be familiar with the history of the
government’s practice. See Brown, 27 F.3d at 1378. Its analysis here does not depend on a
child’s misunderstanding, nor does it depend on whether the reasonable observer is a reasonable
sixth grader or a reasonable adult.
12

B.

1

Evidence in the Standards and Framework

Plaintiffs identify numerous elements of the Standards and Framework that they
2

argue demonstrate hostility toward Hinduism.7 But even considering the evidence in the

3

light most favorable to Plaintiffs, many of the interpretations urged by Plaintiffs are either
4

inaccurate or incomplete. See Scott v. Harris, 550 U.S. 372, 380 (2007) (court on
5

summary judgment need not adopt party’s story when it is contradicted by the record such
6

that no reasonable jury could believe it); T.W. Elec. Serv. v. Pacific Elec. Contractors
7

Ass’n, 809 F.2d 626, 631–32 (9th Cir. 1987) (court need not draw unreasonable
8

inferences).
9

1.

10

Secular Treatment

One of Plaintiffs’ chief complaints is that the Standards and Framework treat other
11
United States District Court
Northern District of California

religions as having divine origins, but discuss only the Hindu religion from a secular
12

perspective. See P. MSJ at 16–17 (Framework “strips the Hindu belief system of any
13

divine origins—it depicts the religion simply as a social construct.”). The Court addressed
14

a related argument at the motion to dismiss phase. Then, Plaintiffs argued that the
15

Standards and Framework teach other religions as if they are historically accurate, and
16

therefore endorse those religions to the exclusion of Hinduism. See Compl. ¶¶ 33, 42, 108;
17

Opp’n to MTD (dkt. 100) at 20. The Court disagreed, holding that “the text does not
18

support” that assertion, MTD at 10, and that “[t]he curriculum teaches the development of
19

Judaism, not the historical accuracy of biblical stories,” id. at 11. So too with Christianity.
20

Id. The Court concluded that Defendants’ purpose in enacting the challenged curriculum
21

was “teaching the history of ancient civilizations.” Id.
22

As evidence of Hinduism’s unfairly secular treatment, Plaintiffs point to language
23

in the Framework about Hinduism evolving or developing. See P. MSJ at 13–14
24

(discussing lesson that Brahmanism8 evolved into early Hinduism); P. Opp’n to D. MSJ at

25
26
27
28

7

This section discusses what the Court understands to be the most significant of Plaintiffs’
concerns with the Standards and Framework. The Court necessarily holds that the other concerns
not addressed here do not rise to the level of Establishment Clause violations.
8
Plaintiffs rely on an expert, Dr. Khyati Y. Joshi, to opine about the significance of Brahmanism,
and many other subjects. See P. Opp’n to D. MSJ at 9. The Court grants Defendants’ objection to
13

1

2–3 (objecting to the word “developed”).9 But the Standards and Framework also

2

acknowledge the role of humans in the development of other religions. See, e.g.,

3

Standards at 31 (“Discuss how Judaism survived and developed”); id. at 36 (“Trace the

4

development of distinctive forms of Japanese Buddhism”); id. at 38 (“List the causes for

5

the internal turmoil in and weakening of the Catholic church”); Framework at 236

6

(“Judaism was heavily influenced by the environment, the history of the Israelites, and

7

their interactions with other societies.”); id. at 271 (“As it became a state religion,

8

Christianity changed. . . . The teacher points out that all religions change over time.”); id.

9

at 274–75 (“How did the religion of Christianity develop and change over time?”). Such

10

language is consistent with the curriculum’s secular purpose of teaching human history.10

United States District Court
Northern District of California

11

Plaintiffs likewise contend that the Standards and Framework fail to focus on

12

Hindus’ belief in their religion’s divine origins. See P. MSJ at 14–15. But the Framework

13

does talk about the divine in Hinduism, even if it does not preface that discussion as

14

Plaintiffs would prefer, by saying “According to Hindu tradition, _____.” See P. MSJ at

15

17–18. The Framework states that “Ancient Hindu sages” revealed the concept “of

16

Brahman as the divine principle of being,” and as an “all-pervading divine supreme

17

reality” that “may be manifested in many ways, including incarnation in the form of

18

Deities.” Framework at 244. In continues: “These Deities are worshipped as distinct

19

personal Gods or Goddesses, such as Vishnu who preserves the world, Shiva who

20

transforms it, and Sarasvati, the Goddess of learning.” Id. It then describes how “[t]hese

21
22
23
24
25
26
27
28

Joshi’s expert report. See D. Reply at 5–7. The report is unsworn, but more importantly, it is not
relevant to the “primary effect” question. See Fed. R. Evid. 702 (requiring testimony to be
relevant to task at hand); Brown, 27 F.3d at 1382 (rejecting expert testimony as irrelevant to
whether a school practice appears to endorse religion); Noonan, 600 F. Supp. 2d at 1118 (same);
Alvarado, 94 F.3d at 1232 (reasonable observer not an expert). The Court further agrees with
Defendants about the failure of the Joshi Reply Declaration (dkt. 227-3) to cure the problems with
the Joshi Report. See State Defendants’ Objections to Plaintiffs’ Reply Evidence (dkt. 230).
9
In their reply brief, Plaintiffs argue that what they object to is the suggestion “that human beliefs
and practices evolved into the religion of Hinduism.” See P. Reply at 6–7. The Court views this
as a difference of degree and not kind.
10
Moreover, the curriculum describes positive change in Hinduism, undermining the notion that
an inflexible social hierarchy is a central Hindu belief. See Framework at 284 (“Hinduism
continued to evolve with the Bhakti movement,” which “emphasized” “social and religious
equality and a personal expression of devotion to God in the popular vernacular languages.”).
14

1

teachings were transmitted orally at first, and then later in written texts, the Upanishads

2

and later, the Bhagavad Gita.” Id.

3

Plaintiffs complain that Defendants treat the Bhagavad Gita as mere secular

4

literature, pointing to a line in the Standards. See P. MSJ at 14 (asserting that “sacred

5

Hindu scripture, the Bhagavad Gita, is not described as what Hindus believe to be the word

6

of God, but as ‘important aesthetic and intellectual traditions’ and ‘literature.’”) (citing

7

Standards at 32 (“Discuss important aesthetic and intellectual traditions (e.g., Sanskrit

8

literature, including the Bhagavad Gita; medicine; metallurgy; and mathematics, including

9

Hindu-Arabic numerals and the zero).”). Presumably the Standards do not explain the
divine significance of the Bhagavad Gita because there are but seven bullet points covering

11
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Northern District of California

10

all of ancient India. See Standards at 32. The Standards are to be read in conjunction with

12

the Framework, see Standards at 0006, and the Framework provides a bit more context

13

about the role the Bhagavad Gita played, see Framework at 244 (“These teachings were

14

transmitted orally at first, and then later in written texts, the Upanishads and, later, the

15

Bhagavad Gita.”). However, it is unsurprising that the Framework treats the Bhagavad

16

Gita in a secular way in the context of a history curriculum—it does the same with other

17

religions’ sacred texts, listing it along with the Torah, Hebrew Bible, Qur’an, and Christian

18

Bible as “classical texts” to study when one is focused on “the human experience and

19

[exploring] the various ways in which human beings affect and express their relationship

20

to their physical, intellectual, social, and political environments.” See Framework at 385.

21

In addition, though Plaintiffs object to the Framework’s treatment of another sacred book,

22

the Ramayana, as a “story,” P. MSJ at 18, the Framework states that that book, “the story

23

of Rama, an incarnation or avatar of Vishnu,” is a “text that Hindus rely on for solutions to

24

moral dilemmas” and “one of ancient India’s most important literary and religious texts.”

25

See Framework at 246. It does not use the word “story” in a dismissive sense, but calls the

26

book “important.” See id.

27
28

2.

Caste System

Another of Plaintiffs’ primary complaints about the Standards and Framework is
15

their over-emphasis on the caste system. See P. MSJ at 16 (“the Framework’s enormous

2

focus on caste within its coverage of Hinduism is itself contemptuous and unlike the

3

treatment of any other faith.”). The Standards include, under the heading “Students

4

analyze the geographic, political, economic, religious, and social structures of the early

5

civilizations of India,” the bullet point “Outline the social structure of the caste system,”

6

Standards at 32, and the Framework expressly connects the caste system to Hinduism,

7

stating, “Teachers should make clear to students that [the caste system] was a social and

8

cultural structure as well as a religious belief,” Framework at 246. Plaintiffs do not

9

maintain that it is historically inaccurate to link the caste system to Hinduism; rather, they

10

argue that the curriculum’s spotlight on caste gives students an unfairly negative view of

11
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Northern District of California

1

Hinduism.11 See Compl. ¶ 82 (“Many would argue that caste was not and is not a Hindu

12

belief. But irrespective of the accuracy of the language, it is certainly derogatory and

13

inconsistent with . . . the treatment of other religions in the Framework.”); see also P.

14

Reply at 7 (“highly debatable” whether “caste is a Hindu religious belief”). Plaintiffs also

15

contend that the Framework “fails to note that the caste system has existed in India among

16

Sikhs, Christians, Muslims and Buddhists, but not among Hindus of Indonesia and Fiji.”

17

P. MSJ at 18 (citing what appears to be an inadmissible article about the caste system).
While it is true that the Framework does not contain the mitigating language

18
19

Plaintiffs seek, it contains other mitigating language, which makes clear that the caste

20

system existed in a historical context and was not unique to ancient India. See, e.g.,

21
22
23
24
25
26
27
28

11

Plaintiffs assert that “By word count, 47 percent of the Framework’s discussion in sixth grade of
Hinduism supporting individuals, rulers and societies is on caste.” See P. MSJ at 16, n.21 (citing
to dkt. 172-4, a color coded version of the Framework purporting to depict negative, neutral and
positive treatment of Hinduism); see also id. at 16 (“71 percent is negative by word count, while
only 6 percent is positive”). Defendants rightly note that Plaintiffs rely on this word counting
system without any explanation of its methodology or creator. See D. Reply at 2. The document
Plaintiffs point to, an attachment to a proposed amended complaint that the Court disallowed, see
dkt. 172-1 ¶ 158, is incredibly subjective and of no use to the Court on summary judgment. For
example, Plaintiffs have inexplicably highlighted in red, indicating a negative portrayal of Hindus,
the sentences “Ancient India experienced a Vedic period (ca. 1500–500 BCE), named for the
Vedas, which were composed in Sanskrit,” dkt. 172-4 at 162, and “Later in the Vedic period, new
royal and commercial towns arose along the Ganges (aka Ganga), India’s second great river
system,” id. at 163.
16

1

Framework at 245 (“As in all early civilizations, Indian society witnessed the development

2

of a system of social classes.”); id. (“This system, often termed caste, provided social

3

stability and gave an identity to each community.”); id. (“Over the centuries, the Indian

4

social structure became more rigid, though perhaps not more inflexible than the class

5

divisions in other ancient civilizations.”); id. at 246 (“Today many Hindus, in India and in

6

the United States, do not identify themselves as belonging to a caste.”);12 id. (“As in

7

Mesopotamia and Egypt, priests, rulers, and other elites used religion to justify the social

8

hierarchy.”). This language goes a long way to contextualize and soften the subject of

9

caste.
Plaintiffs point next to a textbook entitled Discovery Education, Discovery

10

United States District Court
Northern District of California

11

Education Social Science Techbook, Grades Six Through Eight, which Plaintiffs assert

12

includes an exercise for role playing the caste system. See P. Opp’n to D. MSJ at 3–4

13

(citing Kumar Decl. (dkt. 215-1) at PLS00184–87). Plaintiffs add that the book includes a

14

lesson objective directing teachers to “Connect the beliefs of Hinduism to the caste system

15

and other elements of ancient Indian life.” Id. at 4 (citing Kumar Decl. (dkt. 215-1) at

16

PLS00201). This evidence is misleading. First, Discovery Education appears to have been

17

adopted as part of the November 2017 instructional materials adoption, see Pl. Admin.

18

Mot. (dkt. 196) Ex. 5 (“2017 History-Social Science Adoption Report”)—a process that

19

Plaintiffs do not challenge in their complaint, and which involves a different regulatory

20

process than those pertaining to framework adoption. See D. Reply at 11 (citing 5 C.C.R.

21

§§ 9511–9526). While the book is slightly relevant in that it demonstrates a local district’s

22

interpretation of the Standards and Framework, it is not Defendants’ creation. More

23

importantly, the role playing exercise is aimed at teachers, not students, and it does not

24

mention Hinduism or even the caste system. See Kumar Decl. at PLS00186–87

25

(“Announce to the class that society in ancient India gave different people different levels

26

of opportunity, much like this activity.”; “Next, post the Essential Question: What effects

27
12

28

But see P. Opp’n to D. MSJ at 13 (opining that this sentence “is patronizing and implies that the
caste system is inherently Hindu.”).
17

1

did power and social class have on the lives of the ancient Indian people?”; “Encourage

2

them to think about the impact that money and power may have had on their social

3

standing, or position, within Indian society.”). The “Lesson Overview” that Plaintiffs tout

4

as linking “the beliefs of Hinduism to the caste system and other elements of ancient

5

Indian life” actually relates to another lesson (lesson 6.3), not the lesson containing the role

6

playing exercise (lesson 6.2). See id. at PLS00201.
Moreover, even if the book was a part of this case and even if it explicitly directed

7
8

students to participate in a caste system role playing exercise, that is not the kind of role

9

playing that the Framework itself forbids and that courts view with great suspicion. It does
not involve the role playing of a devotional act, like taking communion, but rather of a

11
United States District Court
Northern District of California

10

historical social system. See Framework Appendix F at 867 (“Classroom methodologies

12

must not include religious role-playing activities or simulations of rituals or devotional

13

acts.”); Brown, 27 F.3d at 1380 (“active participation in ‘ritual’ poses a greater risk of

14

violating the Establishment Clause than does merely reading, discussing or thinking about

15

religious texts”); but see id. n.6 (“a reenactment of the Last Supper or a Passover dinner

16

might be permissible if presented for historical or cultural purposes.”).13

17

Finally, on the subject of role-playing, this Court’s order at the motion to dismiss

18

phase discussed an allegation in the Complaint that the “Commission was made acutely

19

aware of the pain and humiliation the curriculum’s portrayal of Hinduism inflicts on Hindu

20

students,” through the letter of a sixth grade student about a caste role-playing exercise in

21

her classroom two years earlier. See Order re MTD at 15–16; Compl. ¶ 85. Although one

22

individual’s opinion is not controlling given the objective nature of the reasonable observer

23

test, see Brown, 27 F.3d at 1379, the Court stated that, because it was adjudicating a

24

motion to dismiss, it would “infer at this point that this sixth grader is reasonable, or that a

25

reasonable sixth grader would perceive the same message.” Order re MTD at 16.

26
27
28

13

Because the Court rejects Plaintiffs’ interpretation of the “intricate role-playing exercise of the
caste system,” the Court also rejects Plaintiffs’ argument that a reasonable observer would
recognize that that exercise selectively violated California law. See P. MSJ at 20–23.
18

1

Defendants accurately note, however, that (1) the exercise apparently took place two years

2

before the Framework at issue was adopted,14 see Compl. ¶ 85 (“two years prior” to

3

adoption process); (2) the specific instructional method described was employed at the

4

local level and was not required by the Framework; and (3) the exercise was arguably

5

contrary to the guidance in the (subsequently adopted) Framework, see Framework

6

Appendix F (“Classroom methodologies must not include religious role-playing

7

activities”). See D. MSJ at 3.15

8

3.

Aryan Invasion

Plaintiffs also object to the Standards and Framework’s treatment of the Aryan

9

Invasion Theory, which Plaintiffs claim, citing the expert report that the Court has rejected

11
United States District Court
Northern District of California

10

herein, is a “long-ago debunked, Orientalist theory” that “present-day India and Pakistan

12

were invaded, in approximately 1500 BCE, by the ‘Aryans,’ a tribe of European origin,

13

and that the Aryans . . . became the creators of Hindu civilization.” P. MSJ at 15 (citing

14

Joshi Report at 4). The Standards do state “Discuss the significance of the Aryan

15

invasions,” see Standards at 32, but they must be read together with the Framework, see

16

Cal. Educ. Code §§ 60000, 60001, 60005, 60200(c); Standards at 0006. The Framework

17

does not use the term “Aryan Invasion.” It states that, in the Vedic period (between 1500

18

and 500 BCE), “according to many scholars, people speaking Indic languages, which are

19

part of the larger Indo-European family of languages, entered South Asia, probably by way

20

of Iran.” Framework at 243–44. It continues, “Gradually, Indic languages, including

21

Sanskrit, spread across northern India.” Id. at 244. After another couple of sentences

22
14

23
24
25
26
27
28

Plaintiffs’ argument that “the offensive language of the current Framework proclaiming that
caste is a religious belief . . . is virtually identical to the 2005 version of the Framework that was in
force when the student was treated so cruelly,” P. Opp’n to D. MSJ at 18, fails to note that the
2005 version of the Framework was in effect when Defendants adopted the instructional materials
upheld in Noonan, see Noonan, 600 F. Supp. 2d at 1097.
15
The Court does not rely on Defendants’ additional argument that Plaintiffs are making a facial
challenge and so the law presumes that local districts will implement the curriculum legally, see
id., as Plaintiffs contest this point, see P. Opp’n to D. MSJ at 19 (“Although the Standards and
Framework violate the Establishment Clause on their face, Plaintiffs never limited their claim to a
facial challenge”); but see, e.g., Stipulation (dkt. 90) ¶ 1 (Plaintiffs stipulating that individual
school districts “are not necessary parties in the determination of the constitutional claims in the
action.”).
19

1

about language, the Framework states: “Another point of view suggests that the language

2

was indigenous to India and spread northward.” Id.
This discussion about how different languages developed and spread in ancient

3
4

India is simply not, as Plaintiffs assert, an assertion that “The origin of Hinduism . . . is the

5

Aryan Invasion Theory.” See P. Opp’n to D. MSJ at 5; see also P. MSJ at 17 (“The origins

6

of all other religions included in the Framework are explained from the perspective of the

7

believer. . . . Only for the origin of Hinduism does the Framework use a discredited

8

theory.”). It takes an expert opinion, not relevant to this Court’s inquiry, to make it so.

9

See P. MSJ at 15 (citing Joshi Report at 4); Alvarado, 94 F.3d at 1232 (reasonable
observer not an expert). As to Hinduism’s origin, the Framework actually discusses

11
United States District Court
Northern District of California

10

archeological finds from the earlier Harappan civilization (about 2600 to 1900 BCE), as

12

containing artifacts that “show features that are all present in modern Hinduism, such as a

13

male figure that resembles the Hindu God Shiva in a meditating posture, as well as small

14

clay figures in the posture of the traditional Hindu greeting namaste.” See Framework at

15

243.
Having set aside the unfounded contention that the Framework teaches the Aryan

16
17

Invasion as the origin of Hinduism, what is left is the language itself about migration and

18

language. It is not clear whether Plaintiffs are disputing that in the Vedic period, people

19

who spoke Indic languages entered South Asia. See P. Reply at 7 (“The Framework

20

Reference to ‘Indic speakers’ . . . is synonymous with the . . . discredited Aryan Invasion

21

Theory.”). Even if that is their contention, the Framework alerts students to a competing

22

historical theory. See id. at 244 (“Another point of view suggests. . .”).16 The Court is no

23
16

24
25
26
27
28

In fact, in a recently-adopted textbook submitted as an exhibit in connection with an earlier
motion, the Aryan migration is treated thusly: “According to many historians, around 1500 B.C,
waves of new people began crossing the Hindu Kush into India. The migrants were a collection of
tribes called Aryans, meaning ‘noble ones.’ They belonged to the Indo-European people who had
populated central Asia. (Some scholars have begun to dispute this theory, however. They believe
that the Aryans were descendants of earlier Indus civilizations and there was no invasion or
migration at all.).” See Prouty Decl. Ex. A (dkt. 183-2) at 148.
One note about the textbook excerpts submitted in this case. As discussed above,
Plaintiffs’ complaint does not challenge the recently-adopted textbooks or the 2017 instructional
materials adoption process of November 2017. See generally Compl. And the Court recognizes
20

1

authority on ancient Indian history and in no position to declare one version true and the

2

other false. This language deals with history—contested history, but history all the same.

3

Whether or not there was an influx of Aryans into South Asia in 1500 BCE is

4

appropriately the subject of a history and social science curriculum, and not actually a

5

positive or negative statement about Hinduism.

6
7

4.

Treatment of Women

Plaintiffs also object to the Framework’s description of Hinduism as contributing to

8

the unequal status of women. See P. MSJ at 19–20. They assert that it deliberately treats

9

Hinduism “as a contributor to patriarchy while not making the same acknowledgment for
other religions.” Id. at 19. Not so. The Framework reflects that patriarchy was not unique

11
United States District Court
Northern District of California

10

to ancient India or Hinduism.

12

The relevant language in the Framework is about ancient India, not Hinduism. It

13

states, “Although ancient India was a patriarchy, women had a right to their personal

14

wealth, especially jewelry, gold, and silvery, but little property rights when compared to

15

men, akin to other ancient kingdoms and societies.” Framework at 246. It continues,

16

“They participated in religious ceremonies and festival celebrations, though not as equals.

17

Hinduism is the only major religion in which God is worshipped in female as well as male

18

form.” Id. About Judaism, the Framework states: “Judaism, in its ancient form, was

19

largely a patriarchy. It was rare for women to own property, but Jewish law offered

20

women some important rights and protections.” Id. at 236. About Christianity, it

21

provides: “Although ancient Christianity was a patriarchy and all the apostles were men,

22

several women were prominent, especially Mary, mother of Jesus. Until modern times,

23
24
25
26
27
28

that a different regulatory process governs the instructional materials adoption process than the
curriculum framework adoptions. See 5 C.C.R. §§ 9511–26. However, the recently-adopted
textbooks are slightly relevant to the Court’s assessment of the Standards and Framework, as they
demonstrate that someone has determined that those books are aligned with the Standards and
Framework at issue in this case. On the other hand, excerpts of old instructional materials were
aligned with a different Framework. Thus, the pages attached to the Nair Declaration (dkt. 215-7),
purporting to be assignments given to the declarant’s daughter by local educators during the 2016–
17 school year, and which would not have been aligned with the 2016 Framework or the 2017
instructional materials adoption, are essentially irrelevant. They also lack foundation. The Court
therefore sustains Defendants’ objection as to that evidence. See D. Opp’n to P. MSJ at 17.
21

1

Christian women had few property rights and were subordinate to men.” Id. at 270; see

2

also id. at 240 (about ancient Athens: “women, foreigners, and slaves were excluded from

3

all political participation.”); id. at 231 (“Mesopotamia was a patriarchy and men had more

4

power than women.”).

5

Plaintiffs’ contrary reading of the Framework is misleading. Compare P. MSJ at 19

6

(“For Christianity, the Framework even provides that ‘male clergy, both Catholic and

7

Protestant,’ generally agreed that ‘men and women are equal in the sight of God.’”) with

8

Framework at 313 (“In a few radical Protestant sects, women sometimes became leaders in

9

church organizations and propagation. However, male clergy, both Catholic and
Protestant, generally agreed that even though men and women are equal in the sight of

11
United States District Court
Northern District of California

10

God, women should bow to the will of their fathers and husbands in religious and

12

intellectual matters.”). While the Framework does not include Plaintiffs’ desired

13

“interpretations of the Bible that would give women a status inferior to men,” see P. MSJ

14

at 19, it certainly blames Christian leaders for some historical gender inequality, see

15

Framework at 313.

16
17

5.

Additional Negative and Positive Treatment of Religion

Beyond the language already discussed herein, the Framework frequently

18

acknowledges negative aspects of other religions’ histories. For example, the Framework

19

states that Muslim leaders conquered new land and forced some non-Muslims to convert.

20

Id. at 278. It mentions that “Christians and Muslims enslaved captives who did not belong

21

to their own religions.” Id. at 310. It notes “extensive” criticism of the Catholic Church

22

over the selling of indulgences and corruption by the clergy. Id. at 312. In explains that

23

“Protestantism added more fuel to the already growing religious persecution in Spain,

24

which had expelled the Jews in 1492. Between 1500 and 1614, Spain expelled all

25

Muslims and persecuted converts and dissenters in the Spanish Inquisition.” Id. It notes

26

that Galileo Galilei “was charged with heresy by the Catholic Church for his public

27

support of Copernicus’ theory that the earth revolved around the sun” and “spent his final

28

days under house arrest.” Id. at 316.
22

1

The Framework also uses positive language about Hinduism and ancient India. It

2

describes the Harappan civilization (about 2600 to1900 BCE) as “well planned” and “[a]

3

flourishing urban civilization.” Id. at 243. It describes the Vedic period as “build[ing] up

4

a rich body of spiritual and moral teachings that form a key foundation of Hinduism as it is

5

practiced today.” Id. at 244. It describes “the central practices of Hinduism today” as

6

including “above all, a profound acceptance of religious diversity.” Id. at 245. And it ends

7

by discussing the Ramayana as an “epic work.” Id. at 246. It contains positive language

8

about the Gupta Dynasty (280 to 550 CE), as “a rich period of religious, socioeconomic,

9

educational, literary, and scientific development,” and discusses the “[e]nduring
contributions from the cultures of which is now modern India and other parts of South

11
United States District Court
Northern District of California

10

Asia.” Id. at 283. It addresses the Chola Empire, which was “associated with significant

12

artistic achievement,” and states that “Hinduism continued to evolve with the Bhakti

13

movement,” which “emphasized” “social and religious equality and a personal expression

14

of devotion to God.” Id. at 284.

15

6.

The SAFG

16

Finally, Plaintiffs vociferously object to the role of the SAFG, the group of

17

academics that they claim Tom Adams secretly recruited to provide anti-Hindu input on

18

the Framework. See P. MSJ at 9–11 (“. . . presented the feedback to the public without

19

acknowledging that Adams handpicked the professors . . . to obtain the viewpoint he

20

sought.”); P. Opp’n to D. MSJ at 5–6 (same); P. Reply at 3 (“Defendants gave special

21

consideration to the [SAFG] solicited by the [CDE] officials”).17 Although the SAFG

22

participated “outside of the expert appointment process,” see P. MSJ at 9; see also Compl.

23

¶¶ 48–51 (alleging that Defendants “chose to ignore completely the process for consulting

24

experts contemplated by the Department of Education’s regulations”), Tom Adams stated

25

that it was undecided “whether experts are needed,” see Kumar Decl. Ex. E at PLS00153,

26
27
28

17

Plaintiffs also complain that two members of the SAFG were actually authors of the
Framework. See P. Reply at 6. But this fact makes it even less objectionable for the CDE to
consult them.
23

1

a CFCC with Content Review Experts had already been formed in 2008, see McDonald

2

Decl. ¶¶ 2–5; 5 C.C.R. § 9511, and it is not clear that the regulations would have permitted

3

a second CFCC. As previously noted, the email Plaintiffs rely on to establish that Tom

4

Adams was directing the SAFG contributions is hearsay. See P. MSJ at 9–10. But

5

assuming that the CDE indeed solicited the SAFG’s input, there is no evidence that it did

6

so pursuant to official state policy, see Dougherty v. City of Covina, 654 F.3d 892, 900

7

(9th Cir. 2011), or that a reasonable observer would be cognizant of the academics’

8

internal correspondence, see Viswewaran Decl. ¶ 15 (dkt. 151-2) (third party

9

communications have always been private, and no one else had access to them); see also

10

McCreary, 545 U.S. at 863 (reasonable observer not aware of hidden religious motive).

United States District Court
Northern District of California

11

Moreover, it is not at all clear that the nefarious gloss that Plaintiffs urge on the

12

SAFG’s correspondence is borne out. See Corley Order (dkt. 171) at 12–13 (description of

13

correspondence as partisan and anti-Hindu “is contradicted by the context and overall

14

content of the messages.”). As one example of this, Plaintiffs highlight a single line in an

15

email from an SAFG member, stating “readers of our report can imagine that it is meant to

16

undermine the legitimacy of Hinduism as a religion (and Hinduism uniquely among

17

religions, at that.).” See P. Opp’n to D. MSJ at 14 (quoting Katon Decl. Ex. D at

18

KEN00047). A review of the complete document reveals that the author of that line was

19

objecting to mention of an academic debate that the author felt was too complicated and

20

subject to misinterpretation. See Katon Decl. at KEN00047. The author continued, “Our

21

critics should not be able to say that we show animus against Hinduism, or against religion

22

generally and so dismiss our suggestions as partisan. We should acknowledge that

23

Hinduism will of course play a major role in textbooks on Indian civilization, but not at the

24

expense of acknowledging other religions and the multiplicity within Hinduism itself.” Id.

25

The email as a whole does not suggest that the author is seeking to undermine the

26

legitimacy of Hinduism, and the single line that Plaintiffs quote is misleading.

27
28

As a second example of SAFG correspondence taken out of context, Plaintiffs quote
an email that they assert shows that SAFG members “understood that they were to use
24

1

‘smoke and mirrors’ to manipulate the Framework adoption process.” See P. MSJ at 23

2

(quoting Katon Decl. at KEN00016); P. Opp’n to D. MSJ at 14 (same). But that email

3

simply stated that the group was not going to respond directly to a particular Hindu

4

organization (Hindu American Foundation),

5

. . . but we need to describe what we take to be the
social/scientific/scholarly current consensus on these issues,
and then state whether we think the framework is consistent
with that scholarly consensus. So that is our mission: to clearly
state what is accepted scholarship, and if there is no legitimate
debate on an issue, to state this unambiguously.

6
7
8
9

See Katon Decl. at KEN00016. Far from revealing that the author/group intended to
surreptitiously insert into the curriculum either false or anti-Hindu materials, the email

11
United States District Court
Northern District of California

10

shows that the author/group’s stated intention was to make the Framework more accurate.

12

Equally important, the SAFG made their positions known via public comment,

13

which Defendants made available for public review. See McDonald Decl. ¶¶ 9, 11.

14

Although Plaintiffs object to the CDE’s failure to disclose Adams’s role, they do

15

acknowledge CDE’s open use of the SAFG recommendations. See P. MSJ at 10

16

(“Although Adams’ recruitment of the handpicked SAFG was never made public,

17

McTygue, who led the drafting of the Framework, did state publicly for the first time at the

18

final History-Social Science Subcommittee meeting in March 24, 2016 that the

19

subcommittee had been receiving reports from the SAFG.”). Moreover, the CDE rejected

20

a number of the SAFG’s recommendations. Of the six examples the Complaint identifies

21

of the SAFG’s allegedly anti-Hindu recommendations, the Court has already noted that

22

“[t]he SBE actually rejected four.” See Order re MTD at 19 (dismissing Equal Protection

23

claim based on Framework Adoption process). In addition, Defendants submit evidence

24

that there was significant support for SAFG’s positions.18

25
18

26
27
28

See, e.g., D. MSJ at 16–18 (citing, among other things, Appendix (dkt. 165) Ex. 22 (letter
signed by 153 individuals, mostly American professors, expressing “support for the
recommendations of the South Asia Faculty Group,” including recommendations concerned with
“sanitization of the connection of caste to Hinduism”); Appendix Ex. 23 (letter submitted by Dalit
Bahujan Faculty Group, 21 scholars in United States and India, that “broadly supported SAFG’s
proposed edits,” and asserted “consensus among historians, that a society divided into caste . . .
25

1

As to edits generally, the Court previously rejected Plaintiffs’ arguments that

2

Defendants favored other religions over Hinduism in accepting and rejecting feedback on

3

the Framework. See id.at 20–21 (“The problem here is not process. The SBE invited

4

public comments on the draft Framework, but it is not obligated to accept every suggested

5

edit—nor could it, when faced with conflicting input. The public school system could not

6

function if every rejected public comment on the content of the curriculum carried

7

potential liability. . . . Plaintiffs have not pled and cannot adequately plead that the

8

Defendants treated Hinduism unfavorably as compared to other religions in the Framework

9

adoption process.”). It now rejects Plaintiffs’ strained argument that a reasonable observer
would recognize that Defendants’ handling of edits selectively violated California law.

11
United States District Court
Northern District of California

10

See P. MSJ at 21–23. The reasonable observer is not a legal expert, nor, given these facts,

12

would he or she reach the conclusion Plaintiffs urge. The CDE received over 10,000

13

emailed comments, and thousands of additional printed comments in just one phase of the

14

Framework adoption process. See McDonald Decl. ¶ 10. It is no wonder that the

15

“Supreme Court has warned that courts should not be in the position of analyzing the

16

minutia of textbook edits and curriculum decisions.” See Noonan, 600 F. Supp. 2d at

17

1121.

18

C.

19

A reasonable observer would not view the Standards and Framework as primarily

20

Primary Effect

denigrating Hinduism.

21
22
23
24
25
26
27
28

was advocated as the ideal in texts as old as Rig Vega . . .”); Appendix Ex. 24 (submission from
South Asian Histories for All, stating among other things that “Caste as determined by birth has
been religiously sanctioned and a lived reality in India for thousands of years. Erasing the
religious underpinnings of caste also negates the religious dissent that produced the Buddhist,
Ravidassia, and Sikh religions.”); Appendix Ex. 25 (letter from Council on American-Islamic
Relations urging SBE to accept the SAFG’s edits and expressing concern about proposed edits
“that seek to deny the reality of the [caste] system”); Appendix Ex. 27 (letter from Society for
Advancing the History of South Asia, affiliate organization of the American Historical
Association, supporting the “SAFG mission of including mention of caste . . . as concept[] for
understanding the history of society and culture in ancient India, and the history of Hinduism
itself.”)). The Court also understands, of course, that Plaintiffs and others opposed SAFG’s
positions. See, e.g., P. Opp’n to D. MSJ at 22 n.24 (quoting from Hindu American Foundation
and Hindu Education Foundation press releases).
26

1

1.

Disapproval of Religion

As discussed above, many of the examples Plaintiffs give of disparagement are not
2

that. The Framework discusses other religions’ development as a result of human
3

influence; it includes mitigating language about caste, stating that there was a system of
4

social classes in all early civilizations; it recognizes a competing theory to the theory that
5

Indic speakers entered South Asia in the Vedic period; and it states that patriarchy was not
6

unique to ancient India. An objective, reasonable observer would find much of the
7

challenged material entirely unobjectionable. See Alvarado, 94 F.3d at 1232 (“reasonable
8

observer is not an expert on esoteric [matters]. . . .”); Books v. Elkhart County, Indiana,
9

401 F.3d 857, 867 (7th Cir. 2005) (effect “is evaluated against an objective, reasonable
10

person standard, not from the standpoint of the hypersensitive or easily offended.”).
11
United States District Court
Northern District of California

But even if there is some evidence by which a reasonable person could infer a
12

disapproval of Hindu religious beliefs—an excessive discussion of caste, for example, or a
13

failure to be fully transparent about coordination with SAFG—that is not enough to
14

conclude that the primary message of the Standards and Framework is disparagement. See
15

C.F. v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985–86 (9th Cir. 2011) (“Even
16

statements exhibiting some hostility to religion do not violate the Establishment Clause if
17

the government conduct at issue,” in addition to meeting the other two Lemon prongs,
18

“does not have as its principal or primary effect inhibiting religion.”). Two cases about
19

state disapproval of religion illustrate this point.
20

In Vernon, 27 F.3d at 1388–89, the City of Los Angeles conducted an investigation
21

into whether an Assistant Chief of Police’s religious beliefs were “improperly shaping the
22

operations and policies” of the police department. The officer sued the City, alleging,
23

among other things, an Establishment Clause violation. Id. at 1390. Although the district
24

court held that there was “no evidence in the record from which a reasonable person could
25

infer any disapproval by the city,” the circuit observed that the city’s having “expressly
26

included within the scope of its investigation inquiries concerning ‘consultation with
27

religious elders on issues of public policy’ suggests that the city disapproved of such
28
27

1

consultation,” and that such disapproval could “possibly [be] due to the particular religious

2

beliefs underlying such consultation.” Id. at 1398. The circuit explained, however, that

3

“[n]otwithstanding the fact that one may infer possible city disapproval of Vernon’s

4

religious beliefs from the direction of the investigation, this cannot objectively be

5

construed as the primary focus or effect of the investigation.” Id. at 1398–99. The

6

primary purpose of the investigation was to investigate whether the officer was engaging

7

in improper or illegal conduct, and the investigation could not “reasonably be construed to

8

send as its primary message the disapproval of [the officer’s] religious beliefs.” Id. at

9

1399. The circuit noted, too, that there were “prominent disclaimers” in the course of the

10

United States District Court
Northern District of California

11

investigation about the officer’s entitlement to his personal religious views. Id.
Similarly, in American Family Association v. City and County of San Francisco,

12

277 F.3d 1114, 1122 (9th Cir. 2002), where the San Francisco Board of Supervisors sent a

13

letter and adopted resolutions denouncing discrimination and violence against members of

14

the LGBTQ community, the Ninth Circuit held that two of the “documents contain certain

15

statements from which it may be inferred that the Defendants are hostile towards the

16

religious view that homosexuality is sinful or immoral.” “Nonetheless,” the circuit

17

continued, “we believe the district court properly concluded that this was not the principal

18

effect of Defendants’ actions.” Id. It explained: “The documents, read in context as a

19

whole, are primarily geared toward promoting equality for gays and discouraging violence

20

against them.” Id. Even though the two documents “may contain over-generalizations

21

about the Religious Right,” or “misconstrue the Plaintiffs’ message,” “a reasonable,

22

objective observer would view the primary effect of these documents as encouraging equal

23

rights for gays and discouraging hate crimes, and any statements from which disapproval

24

can be inferred only incidental and ancillary.” Id. at 1122–23.

25

Here, as in Vernon and American Family, even if a reasonable observer could infer

26

some disapproval of historical aspects of Hinduism, the Standards and Framework by no

27

means primarily communicate disapproval of Hinduism. Just as the primary effect of the

28

investigation in Vernon was to investigate possible illegal conduct, and the primary effect
28

1

of the Board of Supervisors’ actions in American Family was to encourage equal rights

2

and denounce hate crimes, the primary effect of the Standards and Framework is to

3

establish a curriculum on ancient history and social sciences. See Standards at 0006

4

(requiring “students not only to acquire core knowledge in history and social science, but

5

also to develop the critical thinking skills that historians and social scientists employ to

6

study the past and its relationship to the present.”); Framework at 0074 (ensuring “that all

7

California students are prepared for college, twenty-first century careers, and

8

citizenship.”). In addition, here, as in Vernon, there are disclaimers. The Framework’s

9

Appendix quotes from the First Amendment, explains that “public schools may not
promote or inhibit religion,” and directs that “religion and religious convictions, as well as

11
United States District Court
Northern District of California

10

nonbelief” be “treated with respect.” Framework at 0865. And, as discussed above, the

12

body of the Framework specifically makes positive references to ancient India and

13

Hinduism, along with negative references to other civilizations and religions.

14

While Plaintiffs concede that they must demonstrate that the government’s action

15

sends “primarily a message of . . . disapproval,” P. Opp’n to D. MSJ at 7 (quoting Vernon,

16

27 F.3d at 1398), they quote Brown, 27 F.3d at 1378, for the proposition that the “concept

17

of a ‘primary’ effect encompasses even nominally ‘secondary’ effects of government

18

action that directly and immediately advance, or disapprove of, religion,” P. Opp’n to D.

19

MSJ at 8. They also cite to Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1256 (9th Cir.

20

2007) (quoting Brown, 27 F.3d at 1378), which held that “Governmental action has the

21

primary effect of advancing or disapproving religion if it is ‘sufficiently likely to be

22

perceived by adherents of the controlling denominations as an endorsement, and by the

23

nonadherents as a disapproval, of their individual religious choices.” Id. They argue that

24

“[a]pplying the correct standard,” they would prevail, because “it is sufficiently likely that

25

a reasonable observer would perceive” that the Standards and Framework “disapprove of

26

Hinduism.” Id.

27

But Brown, which this Court relies on extensively, pre-dates Vernon and American

28

Family. Moreover, Vasquez actually stated that “The most instructive cases in our circuit
29

1

are Vernon and American Family,” 487 F.3d at 1256, and its application of the second

2

Lemon prong is consistent with those cases, see id. at 1257 (“a ‘reasonable observer’

3

familiar with the history and controversy . . . would not perceive the primary effect of

4

Defendants’ action as one of hostility towards religion.”). Indeed, while Plaintiffs

5

accurately quote Vasquez, Vasquez inaccurately cites to Brown—the quoted language

6

from Brown was defining the word “effect,” not the concept of “primary effect.” Compare

7

Brown, 27 F.3d at 1378 (“A government practice has the effect . . . if it is ‘sufficiently

8

likely to be perceived”) with Vasquez, 487 F.3d at 1256 (“Government action has the

9

primary effect . . . if it is ‘sufficiently likely to be perceived”).

10

Plaintiffs’ interpretation would read the word “primary” out of the primary effect

United States District Court
Northern District of California

11

test and render any conceivable disapproval a constitutional violation. That is not the law.

12

Certainly courts cannot ignore “nominally ‘secondary’ effects of government action that

13

directly and immediately advance, or disapprove of, religion.” See Brown, 27 F.3d at

14

1378. But Plaintiffs must still show that disapproval of Hinduism is the primary effect of

15

the Standards and Framework, and they have not done so.

16
17

2.

The Context of School Curriculums

It was not enough in Vernon and American Family that there was some disapproval

18

of religion: the context of the government action was essential in assessing the primary

19

effect. Context is also essential to the Ninth Circuit’s treatment of school curriculum

20

cases. Courts are to “consider the . . . curriculum as a whole to determine whether the

21

primary effect is to endorse or inhibit religion.” Noonan, 600 F. Supp. 2d at 1118 (quoting

22

Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1540 (9th Cir. 1985) (Canby, J.,

23

concurring) (“Objectivity in education need not inhere in each individual item studied; if

24

that were the requirement, precious little would be left to read.”)); cf. Fleischfresser v.

25

Dirs. of Sch. Dist. 200, 15 F.3d 680, 689 (7th Cir. 1994) (courts are to “focus on the entire

26

series, not simply the passages the parents find offensive because to ‘[f]ocus exclusively

27

on the religious component of any activity would invariably lead to its invalidation.’”).

28

Disparagement of Hinduism is not the primary effect of the Standards and Framework as a
30

1
2

whole. A couple of school curriculum cases are particularly helpful in demonstrating this.
In Grove, 753 F.2d at 1531, parents brought suit over a school board’s refusal to

3

remove a book called The Learning Tree from their daughter’s sophomore English

4

literature curriculum. The parents argued that The Learning Tree “has a primary effect of

5

inhibiting their religion, fundamentalist Christianity, and advancing the religion of secular

6

humanism.” Id. at 1534. The Ninth Circuit disagreed, explaining that while the

7

Establishment Clause prohibits “daily readings from the Bible,” “recitation of the Lord’s

8

Prayer,” “posting the Ten Commandments in every classroom,” “beginning school

9

assemblies with prayer,” and including in a meditation course “a ceremony involving
offerings to a deity,” the “literary or historic study of the Bible is not a prohibited religious

11
United States District Court
Northern District of California

10

activity” and “[n]ot all mention of religion is prohibited in public schools.” Id. Reading

12

The Learning Tree was “not a ritual” but an exploration of the “expectations and

13

orientations of Black Americans.” Id. Moreover, the book “was included in a group of

14

religiously neutral books in a review of English literature, as a comment on an American

15

subculture.” Id.; see also id. at 1540 (Canby, J., concurring) (“It is one book, only

16

tangentially ‘religious,’ thematically grouped with others in the sophomore literature

17

curriculum.”). Accordingly, the school board did not violate the Establishment Clause.

18

Likewise, in Brown, 27 F.3d at 1377, parents objected to a district’s use of

19

Impressions, an elementary school teaching aid that consisted of “approximately 10,000

20

literary selections and suggested classroom activities,” covering “a broad range of North

21

American cultures and traditions.” Id. The plaintiffs challenged 32 of the selections,

22

which directed students to discuss witches, create poetic chants, and pretend that they were

23

witches or sorcerers. Id. They alleged that the selections promoted the religion of Wicca

24

and the practice of witchcraft. Id. The Ninth Circuit explained that “[t]o the extent that

25

the Challenged Selections involve no more than merely reading, discussing or

26

contemplating witches, their behavior, or witchcraft, they fall squarely within the holding

27

of Grove.” Id. at 1380. The circuit also rejected the plaintiffs’ role-playing arguments,

28

concluding that this was not “student participation in school-sponsored religious ritual” but
31

1

“coincidental resemblance . . . to witchcraft ritual.” Id. at 1380–81. It continued, “As in

2

Grove, the Challenged Selections are only a very small part of an otherwise clearly

3

nonreligious program. It thus is unlikely that . . . an objective observer would perceive the

4

inclusion of the selections in Impressions as an endorsement of or disapproval of religion.”

5

Id. at 1381. The court reiterated: “The context in which the Challenged Selections exist is

6

relevant to determining whether children will have such a perception.” Id. The plaintiffs

7

therefore failed to meet the second Lemon prong. Id. at 1383.

8

Much like The Learning Tree was only one book “included in a group of religiously
neutral books in a review of English literature,” see Grove, 753 F.2d at 1534, and the

10

witchcraft selections were only 32 of 10,000 literary selections, see Brown, 27 F.3d at

11
United States District Court
Northern District of California

9

1377, the language Plaintiffs object to in the Standards and the Framework are only a small

12

part of an expansive history and social sciences curriculum, ranging from kindergarten to

13

twelfth grade and from ancient history to economics and principles of American

14

democracy. See Framework at 72–73; see also Noonan, 600 F. Supp. 2d at 1119

15

(challenged materials “are only a small portion of otherwise clearly nonreligious texts. . .

16

which are part of a clearly[] nonreligious history-social sciences program.”).

17

This is not to say that truly derogatory language accounting for only a small

18

percentage of words in a larger text would never qualify as a “nominally ‘secondary’

19

effect[] of government action that directly and immediately advance[d], or disapprove[d]

20

of, religion.” See Brown, 27 F.3d at 1378. The Court holds only that, as discussed above,

21

the materials Plaintiffs challenge in this case do not so qualify. Relatedly, although

22

Plaintiffs object to perceived bias in the Standards and Framework development process—

23

particularly in connection with the role of the SAFG, see P. MSJ at 9–11—that process

24

involved public review, public comment, and public meetings, and the curriculum that

25

resulted from that process does not primarily disparage Hinduism. In context, the process

26

does not alone satisfy the second Lemon prong.

27
28

Ultimately, “the State of California has determined that students should study the
importance of religion . . . to gain a better understanding of different cultures and
32