This matter is before the court on (1) plaintiff California Parents for the Equalization of Educational Materials (“plaintiff’ or “CAPEEM”) motion for partial summary judgment as to its Establishment Clause claim and (2) defendants’ 1 motion for summary judgment, or alternatively, partial summary judgment as to plaintiffs second amended complaint, alleging claims for violation of the Equal Protection, Establishment and Free Speech and Association Clauses. 2 Generally stated, in this action, plaintiff alleges the California State Board of Education (“SBE”) discriminated against CAPEEM’s members during the 2005-2006 history-social science textbook adoption process and that the adopted sixth-grade textbooks represent Hinduism in a discriminatory and denigrating manner. During the adoption process, the SBE held public meetings, considered public comment and consulted with scholars to determine the appropriate content of its curriculum, including the appropriate portrayal of Hinduism in the context of world history and ancient civilization. Plaintiffs critical objection is that the SBE did not adopt all of the textbook edits for which its members were advocating, and that ultimately, the adopted textbooks represent Hinduism in a discriminatory light.
By its motion, CAPEEM seeks partial summary judgment on its Establishment Clause claim, to the extent it is based on the subject textbooks’ alleged indoctrination of students in their portrayals of Christianity and Judaism. 3 More specifically, CAPEEM requests partial summary judgment on it Establishment Clause claim based on (1) defendants’ alleged expressed intent to model portions of the subject history textbooks after the New Testament; (2) the alleged improper influence of religious figures in approving the material addressing Christianity and religious considerations that went into evaluating the suggested edits of the textbooks; (3) the adoption of textbooks that allegedly treat biblical narratives as historical facts and biblical events, including miracles, as actual events; and (4) the adoption of teachers’ materials which purportedly emphasize aspects of indoctrination.
Defendants oppose the motion, first on standing grounds, arguing CAPEEM lacks standing to bring an Establishment Clause claim based upon the alleged unlawful indoctrination of students into the Christian
By their motion, defendants seek judgment in their favor as to all of plaintiffs claims for relief. Similar to their opposition to plaintiffs motion, defendants argue, in the first instance, that CAPEEM lacks standing to press any of its claims to the extent they are based on alleged discrimination in the textbook adoption process, and to the extent plaintiffs’ claims challenge the textbooks’ contents, plaintiff only has standing to allege violations of law based on the alleged negative treatment of Hinduism. Alternatively, defendants argue each of plaintiffs claims fail on their merits as follows: (1) plaintiffs equal protection challenge to the textbooks’ contents fails under controlling Ninth Circuit law, and its equal protection challenge to the adoption process fails because plaintiff has no evidence to support a finding of discriminatory intent by defendants, CAPEEM cannot identify a similarly situated group and/or CAPEEM’s members were treated the same as other similarly situated participants in the process; (2) plaintiffs Establishment Clause claim fails because defendants’ actions did not promote other religions over Hinduism nor was the primary effect of defendants’ actions hostility towards Hinduism; and (3) plaintiffs Free Speech and Association Clause claim fails because plaintiff cannot show how defendants’ actions chilled CAPEEM members’ free speech and association rights.
For the reasons set forth below, the court GRANTS defendants’ motion as to plaintiffs Establishment and Free Speech and Association Clause claims. As to plaintiffs equal protection claim, the court GRANTS defendants’ motion to the extent plaintiffs claim is directed at the textbooks’ contents, as such a claim is not viable as a matter of law, but DENIES defendants’ motion to the extent it is directed at plaintiffs process-related challenge. As to that issue, triable issues of fact exist as to whether CAPEEM’s members were treated fairly in the adoption process.
BACKGROUND 5
During the sixth grade world history and ancient civilizations course, California
As explained in the Framework, the kindergarten-grade 8 history-social science curriculum is designed with the idea that knowledge of history-social science disciplines is essential in preparing students for responsible citizenship and in comprehending global interrelationships. (Defs.’ Stmt. of Add’l Disputed Facts in Opp’n to Pb’s MSJ, filed Jan. 13, 2009 [Docket #173] [hereinafter, “DDF”], ¶ 156.) Studying major religious and philosophical traditions helps students to understand people’s historical struggles with ethical issues and the current consequences, wars and political arrangements, like separation of church and state. (DDF ¶ s 157, 158.) Students learn about religious beliefs and texts in order to better understand cultural continuity and conflict. (DDF ¶ 159.) The Framework includes guidelines for teaching about religion. (DDF ¶ 160.)
The study of religion is done within the larger context of human history. (DDF ¶ s 156-168.) In grade six, students study the world history and geography of ancient civilizations, including the early societies of the near East and Africa, the ancient Hebrew civilization, Greece, Rome and the classical civilizations of India and China. (DDF ¶ 161.) Students receive an overview of these societies, including the geography of the region; trade; art; social, economic and political structures; and the everyday lives of the people. (DDF ¶ 162.) In this context, students study about the religions and religious texts of the different ancient civilizations. (DDF ¶ s 163-168.) The Content Standards identify certain information which must be taught. (DDF ¶ 168.)
In January 2005, the SBE issued an invitation to publishers to submit instruc
The CRP and IMAP received training in April 2005 and convened for deliberations on July 11-14, 2005. (DUF ¶5.) They then prepared a joint advisory report, which was mailed to the Curriculum Commission (the “Commission”) on September 14, 2005. The report was made available to the public. (Id.) The Commission is an advisory body that advises the SBE on the adoption of curriculum frameworks and instructional materials. The SBE considers the Commission’s recommendations but is not obligated to follow them. (DUF ¶ 6.)
The Commission held public hearings on September 29-30, 2005, at which parties could submit comments orally or in writing. (DUF ¶ 8.) The Commission received extensive public comments that could not be addressed at the meeting and could not be evaluated for accuracy at that time. (Id.) In particular, the Commission received lengthy submissions from the Institute of Curriculum Services (“ICS”), regarding the portrayal of Judaism in the textbooks, the Council on Islamic Education (“CIE”), regarding the portrayal of Islam in the textbooks, and the Hindu Education Foundation (“HEF”) and the Vedic Foundation (“VF”), regarding the portrayal of Hinduism in the textbooks. (DUF ¶ 10.) CAPEEM member, Karthik Venkataramani, combined certain CAPEEM members’ proposed textbook edits with HEF’s and worked with HEF throughout the process (these edits are referred to herein as the “HEF/VF edits”). (DUF ¶ 11.)
In order to give full consideration to the public comments, the Commission formed an Ad Hoc Committee to consider if the recently received public comments should be included in the Commission’s final recommendation to the SBE. (DUF ¶ 9.) The Ad Hoc Committee held a publicly noticed meeting on October 31, 2005 and reviewed extensive written reports and comments from the public and the CRP. (DUF ¶ 12.) The California Department of Education (“CDE”) contracted with three former CRP members: Dr. Williamson Evers, Dr. Naomi Janowitz and Dr. David Nystrom. Additionally, CDE hired Dr. Shiva Bajpai, who HEF had recommended, as a scholar to review the Hindu edits. (DUF ¶ 13; RDF ¶ 1.) Dr. Bajpai approved the edits proposed by HEF and VF almost in their entirety. (DUF ¶ 14.) At the October 31 meeting, Dr. Bajpai discussed the Aryan Invasion Theory (“AIT”) and argued that scholarship no longer supported the hypothesis. (DUF ¶ 15.) The State’s Content Standards required publishers to “discuss the significance of the Aryan invasion.” (Id.)
Ultimately, the Ad Hoc Committee recommended edits to the SBE, including those that Dr. Bajpai had endorsed. (DUF ¶ 16.) All of the edits approved by the Commission and Ad Hoc Committee were submitted to the SBE, along with all public comments. (DUF
Id.)
Prior to the SBE’s textbook adoption meeting on November 9, 2005, it received correspondence from scholars and individuals expressing concerns about the proposed edits offered
For example, Dr. Charles Munger, a member of the Commission, sent a letter to the SBE on November 3, 2005, noting that AIT is taught at college level courses at Stanford and the University of California. (Id.) On November 7, 2005, Dr. Michael Witzel, Professor of Sanskrit, Harvard University, sent a letter to the SBE expressing concern about the HEF/VF edits. (Id.) In his letter, Dr. Witzel expressed concern that the proposed changes to early Indian history were politically motivated. He attached one of his scholarly publications regarding the political revision of textbooks in India. (Id.)
The next day, November 8, 2005, the SBE received a second letter from Dr. Witzel signed by nearly 50 international scholars, urging the SBE to reject the edits proposed by “nationalist Hindu (‘Hindutva’) groups.” 7 (DUF ¶ 18.)
The agenda of the groups proposing these changes is familiar to all specialists in Indian history, who have recently won a long battle to prevent exactly these kind of changes from finding a permanent place in history textbooks in India. The proposed revisions are not of a scholarly but of a religious-political nature ... These opinions do not reflect the views of the majority of specialists on ancient Indian history nor of mainstream Hindus.... It would trigger an immediate international scandal if the California State Board of Education were to unwittingly endorse religious-nationalistic views of Indian history from which India has only extricated itself in the last two years.
(DUF ¶ s 18-19.) The letter also directed the SBE to two U.S. State Department reports that discussed textbook revisions in India when the government was controlled by the Bharatiya Janata Party, a Hindu nationalist party. (DUF ¶ 19.) Therein, the State Department warned that the textbook revisions in India reflected Hindutva beliefs and “Hindu extremist interpretations of history.” (Id.)
Dr. Witzel’s letter was signed by several renowned scholars, including Romila Thapar, the first Kluge Fellow at the U.S. Library of Congress. (DUF ¶ 20.) Dr. Thapar also sent an email to Tom Adams, Executive Director of the Commission, and Sue Stickel, Deputy Superintendent of Curriculum and Instruction, on November 7, 2005, stating that historians in India urged the SBE to consult with scholars before agreeing to make the changes to Hinduism. (DUF ¶ 20.) She and eight other Indian scholars sent a similar message on November 28, 2005. (Id.) Dr. Adams contacted Dr. Thapar and asked her to review the HEF/VF edits approved by Dr. Bajpai. (DUF ¶ 21.) She performed a cursory review of the edits and recommended that they should not be adopted for inclusion in the textbooks. She also recommended that the CDE seek assistance from other “serious south Asian scholars” as in her opinion, Dr. Bajpai was regarded “as a rather indifferent scholar” with minimal research background. (Id.)
Plaintiff asserts that the correspondence from Witzel and others supporting his views contained no evidence to support
On November 9, 2005, at a public meeting, the SBE adopted and approved nine of the eleven sixth grade history-social science textbooks that had applied for adoption for use in California public schools. (DUF ¶ 23.) With respect to the remaining textbooks, the SBE directed the Commission to review the proposed edits and (1) accept only those edits and corrections that improve factual accuracy; (2) accept those edits and corrections that did not contradict the edits approved on September 30, 2005 and (3) accept no additional edits and corrections. (DUF ¶ 24.)
Thereafter, the CDE staff contracted the following three additional experts, who they believed were experts in ancient India: Dr. Stanley Wolpert, of the University of California, Los Angeles, Dr. James Heitzman of the University of California, Davis, and Dr. Witzel. (DUF ¶ 25.) Plaintiff disputes that Drs. Wolpert and Witzel are experts in ancient India. (RDF ¶ 3.) Plaintiff also contends defendants did not require these panelists to meet the standards defendants normally impose on content experts. For example, defendants did not require these panelists to submit their resumes, they were not vetted by defendants in any way and they were not screened by defendants with respect to the panelists’ relationships to any publishers submitting textbooks in the process. (PDF ¶ s 44-46, 53.) Plaintiff points out that while Dr. Bajpai had been screened with respect to his relationship to publishers involved in the process and defendants restricted his communications with publishers, Dr. Wolpert was not similarly screened or precluded from contact with publishers. (PDF ¶53, 55, 56.) At the time of his participation in the process, Dr. Wolpert was a paid consultant for one of the publishers that submitted a textbook for adoption by defendants. (PDF ¶ 57.)
Additionally, plaintiff asserts that various Hindu groups brought to defendants’ attention certain derogatory remarks Dr. Witzel had made about Hindus, Hinduism and Indians, but defendants took no action and continued to involve Witzel in the process. (PDF ¶ s 102, 103, 107, 108.) Finally, plaintiff maintains that a November 22, 2005 document created by Drs. Witzel, Wolpert and Heitzman evidence their disdain for scholarship and hostility towards Hindus. For example, in that document, in response to a request to correct the dates of authorship of two Hindu epics, the experts wrote, “Who in Sixth Grade cares which epic was ‘written’ first?” (PDF ¶ 114.) In that same document, when Hindus requested removal of a picture of an alleged untouchable coming out of a garbage dump in which a pig is scavenging, the three experts wanted to modify the image to read “leaving us with a powerful picture of the scavenging lifestyle associated with untouchability.” (PDF ¶ 116.)
Drs. Witzel, Wolpert and Heitzman reviewed the edits submitted by HEF and VF and provided their recommendations to the Commission. (DUF ¶ 25.) Based on a report from these three reviewers, the CDE staff prepared a document to help the Commission understand the issues of historical accuracy and decide what edits reflected a scholarly consensus. (DUF ¶ 26.)
On December 2, 2005, the Commission reviewed the proposed edits and the ex
Upon learning of the actions taken by the Commission on December 2, SBE President Ruth Green sent a letter to the Commissioners expressing her concern that the Commission may not have followed the November 9, 2005 SBE directives for its meeting. (DUF ¶ 31.) Green called a closed-door meeting on January 6, 2006 to discuss the textbook edits concerning Judaism, Islam, Christianity and Hinduism. (Id.) CDE staff, SBE and Commission members, and five content scholars, Dr. Naomi Janowitz (Judaism), Shabbir Mansuri (Islam), Dr. David Nystrom (Ancient History and Christianity), Dr. Witzel (Indian History and Sanskrit) and Dr. Bajpai (Indian History), participated. (DUF ¶ 32.) Plaintiff disputes the qualifications of some of the content scholars, including Witzel and Mansuri (who plaintiff states was simply a consultant for Houghton Mifflin’s book), and complains that members of HEF/VF were not invited to this meeting. (PDF ¶ 95.) At the January 6 meeting, all of the Ad Hoc Committee edits and corrections were discussed, including the Hindu edits, which Drs. Bajpai and Witzel reviewed and debated. (DUF ¶ 33.) Plaintiff emphasizes that with respect to Judaism and Christianity, the meeting addressed only a few minor changes. In contrast, at least 83 new suggestions were made regarding the edits on Hinduism. (PDF ¶ 89.) Ultimately, Drs. Bajpai and Witzel agreed on many of the edits, with the exception of a few subject areas, which reflect the content issues raised in this litigation. (DUF ¶ 33.)
Subsequent to the meeting, an SBE committee worked with CDE staff to review all of the edits and corrections that the SBE committee deemed appropriate. (DUF ¶ 34.) CDE and SBE staff created a new set of recommendations that reflected the scholarly perspectives, public comment and SBE concerns (the “February 27 Edits and Corrections List”).
(Id.)
Four members of the SBE committee met on February 27, 2006 at a public meeting. The February 27 Edits and Corrections List was posted on the CDE website prior to the meeting. (DUF ¶ 35.) Written comments received by the public regarding the posted list were forwarded to committee members prior to the meeting.
(Id.)
Approximately 104 people gave public tes
Plaintiff contends these new recommendations were not based on scholarly perspectives and many of the recommendations showed disdain for Hindus. (RDF ¶ 6.) At the February 27 meeting, plaintiff maintains that only the Hindu participants were required to identify themselves as either “for” or “against” the HEF/VF edits and this permitted President Green to manipulate the time allowed to those speaking against the edits. (RDF ¶ s 7-8.)
On February 27, 2006, the SBE committee recommendations were sent to the SBE for the regularly scheduled SBE March meeting. On March 8, 2006, the SBE held a public meeting; approximately 49 people addressed the SBE regarding the textbooks and proposed edits. After approximately two hours of public comment, the SBE adopted the SBE/CDE staff recommended edits to the sixth grade history-social science textbooks. (DUF ¶ 38.)
Plaintiff emphasizes that in rendering its final decision, the SBE ignored many of the recommendations of the Commission. Most glaringly, the Commission had recommended rejecting the Oxford University Press (“OUP”) textbook by a 14-0 vote. (PDF ¶ 20.) CAPEEM member, Karthik Venkataramani, along with some HEF members, had met with OUP representatives, and OUP had agreed to make changes to improve the presentation of Hinduism. (PDF ¶ 23.) OUP representatives had agreed with HEF’s suggestions, noting that the OUP author “was very amenable to the changes and saw merit in [HEF’s] comments.” (PDF ¶ 192.) Yet, ultimately, plaintiff asserts many of the more egregious portions of the OUP and other texts were not changed. 8 In contrast, the ICS worked with OUP to make changes to the chapter on Judaism which were accepted by the SBE. (PDF ¶22.)
Defendants maintain, on the other hand, that throughout the textbook adoption process, the SBE received extensive public comment from those both supporting and opposing the HEF/VF edits. (DUF ¶ s 39-40.) Defendants claim members of CAPEEM participated throughout the process, advocating for the HEF/VF edits in both written comments and also by par
However, plaintiff contends, contrary to defendants, that the Hindu groups supporting the HEF/VF edits were subjected to different procedures during the process, including: (1) defendants rejected suggestions from VF that were not in the correct format, and CDE included only those VF comments that consisted of “specific edits and corrections” (PDF ¶ 6); on the other hand, the CIE, an Islamic advocacy group that participated in the process, did not provide specific edits and corrections, yet defendants came up with suggestions based on the “narrative evaluation” submitted by CIE (PDF ¶ 7); (2) defendants imposed arbitrary deadlines on Hindus supporting the HEF/VF edits, including the improper rejection of a CAPEEM member’s submissions as untimely (PDF ¶ 18), and imposing special deadlines on their groups with respect to submissions to the Ad Hoc Committee (PDF ¶ 19); to the contrary, opponents of the HEF/VF edits, like Dr. Witzel, faced no similar deadlines; (3) during various public meetings, defendants asked Hindus to identify themselves as being either “for” the HEF/VF edits or “against” them before being permitted to speak (PDF ¶ 147).
Plaintiff also asserts that defendants treated Hindus supporting the HEF/VF edits differently when making decisions on content. For example, when Jewish participants objected to treating Christianity as an improvement over Judaism, defendants approved changes to correct such claims. (PDF ¶ 171.) However, when Hindu participants asked for removal of the depiction of Buddhism as an improvement over Hinduism, their requests were denied. (PDF ¶ 172.) Additionally, plaintiff contends that while defendants- conceded the request of Jewish participants to capitalize the letter “g” in “god,” similar requests by Hindus resulted in changing all instances of the words “gods” and “goddesses” to the word “deities” with respect to the Hindu religion. (PDF ¶ 176.) Plaintiff also asserts that the request of Jewish participants to provide an insider perspective of their religion, such as by using the version of the Ten Commandments from the Hebrew Bible instead of the Christian Bible and removing references to the Christian Bible in the chapter on Judaism, were granted. However, defendants did not grant requests by Hindus to provide an insider’s perspective of their beliefs. (PDF ¶ s 177-179.) Similarly, plaintiff points out that defendants granted the request of Jewish participants to remove references to the alleged belief of Jews having higher social status than the Samaritans, but did not grant the request of Hindu participants to remove the offensive sections of the textbooks attributing an oppressive caste system to Hinduism. (PDF ¶ s 180-181.) Finally, plaintiff asserts defendants took action to ensure that Judaism was treated with sensitivity and asked the expert on Judaism to work with the expert on Christianity, when a controversy arose about blaming Jews for the arrest of Jesus. (PDF ¶ 166.) Plaintiff alleges similar sensitivity was not applied to Hinduism. (Id.)
Shortly after the adoption of the edits, on March 9, 2006, CAPEEM formed for the purpose of promoting “an accurate portrayal of the Hindu religion in the public education system of the State of California.” (DUF ¶ 50.) CAPEEM is comprised of Hindu and Indian parents who have children currently attending public schools in the first through sixth grades in California (and will use the material approved and adopted by the SBE) and who assert their own interests as well as the
CAPEEM filed the instant action on March 14, 2006, and filed the operative complaint, the second amended complaint, on August 25, 2006, alleging violations of the Equal Protection, Establishment and Free Speech and Association Clauses of the Constitution, pursuant to 42 U.S.C. § 1983. By the action, plaintiff “challenges the derogatory and unequal treatment of the Hindu religion in social sciences textbooks used in the sixth grade in the California public education system.” (SAC ¶ 1.1.) 9 More specifically, plaintiff challenges defendants’ refusal to revise certain textbooks to remove allegedly offensive and derogatory references to the Hindu religion. “Plaintiff challenges the substance of the final edits as well as the (disparate) procedures followed by Defendants in adopting certain edits and rejecting others.” (SAC ¶ 1.2.) Plaintiff seeks injunctive relief with respect to its claims prohibiting defendants from:
1. “treating Plaintiff or its members differently because of their religion, ethnicity, political beliefs, or national origin;”
2. “promoting other religions (and portraying other religions in a more favorable light) at the expense of the religious beliefs of plaintiff and its members;”
3. “denigrating the religious beliefs of Plaintiff and its members;”
4. “utilizing creationist, Judeo-Christian-based theories to explain the development of Hinduism and the migrations of ancient Hindus; and”
5. “taking adverse action against Plaintiff or its members based on their protected expression, political beliefs, or assoeiation[.]”
(SAC at 24:12-20.) 10
STANDARD 11
Summary judgment is appropriate when it is demonstrated that there exists no
Under summary judgment practice, the moving party
[Ajlways bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett,
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
First Nat’l Bank,
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c);
SEC v. Seaboard Corp.,
Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ”
Matsushita,
ANALYSIS
1. Plaintiff’s Motion for Partial Summary Judgment
CAPEEM’s motion for partial summary judgment challenges the adopted textbooks’ alleged indoctrination of students in their portrayals of Christianity and Judaism. Defendants oppose the motion, in the first instance on standing grounds, arguing CAPEEM lacks “organizational” standing to bring a claim challenging the textbooks’ portrayal of religions other than Hinduism.
On a motion for summary judgment, the plaintiff bears the burden of establishing each element of standing.
Churchill County v. Babbitt,
Here, CAPEEM cannot challenge the textbooks’ portrayal of religions other than Hinduism because such a challenge is not germane to its organizational purpose. 12 According to CAPEEM’s Articles of Incorporation, its primary organizational purpose is:
to promote an accurate portrayal of the Hindu religion in the public education system of the State of California.
(DUF ¶ 50.) CAPEEM has consistently maintained that its purpose is to ensure the accurate representation of Hinduism in the subject textbooks. (Linton Decl. in Opp’n to Pl.’s MSJ, filed Jan. 13, 2009 [Docket # 170], Ex. B [CAPEEM Articles of Incorp., Bylaws and IRS description].) Consistent with that purpose, CAPEEM filed this lawsuit to challenge the “derogatory and unequal treatment of the Hindu religion in social sciences textbooks used in the sixth-grade in the California education system.” (SAC ¶ 1.1.) It has repeatedly represented that this lawsuit is about challenging the portrayal of Hinduism in the textbooks. (Linton Decl., Ex. B [description of lawsuit from CAPEEM’s website, fund-raising fliers about lawsuit and information sheet for fund-raisers].) For example, CAPEEM’s website states:
The objective of this lawsuit is to correct the sixth grade social studies textbooks to end selective discrimination againstHinduism in textbooks, protect the civil rights of Hindu children, ensure that Hindu children are not alienated from them traditions because of negative portrayals of their religion, removal colonial stereotypes regarding Hinduism, and present the positive aspects of Hinduism so that Hindu children can be proud of their heritage.
(Linton Deck, Ex. B [CAPEEM00055].)
In
Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dept. Of Ag.,
Plaintiff does not discuss the above case law in any respect on the motion; indeed, plaintiff offers no authority whatsoever in support of its bald assertion that it can satisfy the germaneness requirement for this claim. Instead, CAPEEM simply proffers the testimony of its director and one member who testified at their depositions in this case, that CAPEEM was formed, in part, to prevent religious indoctrination. (Balasubramani Supp. Deck, filed Jan. 23, 2009 [Docket # 197], Exs. A and B.) Such self-serving statements made in support of this legal action are insufficient to meet plaintiffs burden under
Hunt. See e.g. Animal Lovers Volunteer Assoc., Inc. v. Weinberger,
Moreover, that certain CAPEEM members have concerns, some of which were raised during the textbook adoption process, that the subject textbooks attempt to
This case challenges the derogatory and unequal treatment of the Hindu religion in social science textbooks used in the sixth grade in the California public education system.
(SAC ¶ 1.1.) The treatment of other religions is relevant only as it relates to establishing the unequal and discriminatory treatment of Hinduism. CAPEEM formed in order to bring this lawsuit, designating its organizational purpose as the promotion of “an accurate portrayal of the Hindu religion in the public education system of the State of California.” (DUF ¶ 50.) As such, because CAPEEM’s claim of alleged unlawful indoctrination of students into the Christian and Jewish religions is not germane to this organizational purpose, the court must find that CAPEEM lacks standing to bring this claim.
Because the claim is not germane to its purpose, CAPEEM’s allegations regarding indoctrination by the textbooks represents a mere “generalized grievance” that any citizen might attempt to litigate simply because he or she takes offense at the textbooks. Such generalized grievances “shared in substantially equal measure by all or a large class of citizens” are insufficient to establish standing.
See Warth v. Seldin,
2. Defendants’ Motion for Summary Judgment
a. Standing
In moving for summary judgment, as its threshold argument, defendants contend plaintiff lacks standing to bring its claims for relief to the extent they are based on (1) the textbook adoption process and (2) the textbooks’ contents in so far as the books pertain to the portrayal of religions other than Hinduism. Defendants concede that CAPEEM has standing to bring its claims for relief to the extent they challenge the textbooks’ portrayal of Hinduism. For the same reasons as set forth above, the court agrees with defendants that CAPEEM lacks standing to bring its Equal Protection, Establishment, and Free Speech and Association Clause claims to the extent they are based on the textbooks’ portrayal of religions other than Hinduism, as such claims are not germane to CAPEEM’s organizational purpose.
Thus, the court considers here only whether CAPEEM has standing to assert its claims for relief based on alleged disparate treatment in the textbook adoption process. Again, an association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests the association seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the par
Defendants contend plaintiff cannot show an actual injury to any of its members nor can it demonstrate that its members were denied the opportunity to equally compete for a government benefit. In
Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville,
Defendants are incorrect in both respects. Plaintiff offers evidence of direct injury to at least one of its members. CAPEEM asserts defendants did not afford one of its members an opportunity to participate on an equal basis in the textbook adoption process, and that conduct resulted in the humiliation of the member. (PDF ¶ s 27.) This member’s testimony describing his feelings of humiliation and alienation as a result of the alleged disparate treatment he received in the adoption process is sufficient to establish the injury-in-fact requirement of Lujan. Moreover, even without this claim of direct injury to a member, CAPEEM can establish an injury in fact under City of Jacksonville. Defendants’ conduct during the adoption process was governed by a body of laws, regulations and guidelines which apply to the SBE’s adoption of new textbooks. Cal. Const. Art. IX, § 7.5; Cal. Educ.Code §§ 60200-60206, 60040, 60044;(Adams Deck, [Docket # 160], at Ex. B [Framework and Content Standards].) That regulated process is akin to the government bidding process in City of Jacksonville. Plaintiff proffers evidence that defendants applied the laws and rules governing the process in an arbitrary manner toward those participants who supported the HEF/VF edits; this disparate treatment, plaintiff alleges, resulted in the adoption of materials that denigrate the Hindu religion. Thus, plaintiff can establish under City of Jacksonville, that they were denied the opportunity of equal and fair participation in the process, and they ultimately lost the benefit of having their views heard and given equal consideration in an open process. For these reasons, the court finds that plaintiff can establish the injury-in-fact requirement for standing.
As to the third requirement, defendants contend that because the State has promulgated new regulations for the
Accordingly, defendants’ motion on standing grounds is DENIED. 14
b. Equal Protection Clause Claim 15
CAPEEM alleges defendants violated the Equal Protection Clause by discriminating against its members on the basis of their religion, political affiliation, ethnicity and national origin. (SAC ¶ s 5.3-5.4.) The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Arndt. 14, § 1. This is “essentially a direction that all similarly situated persons should be treated alike.”
City of Cleburne v. Cleburne Living Ctr.,
Here, defendants argue (1) CAPEEM cannot challenge the textbooks’ contents under the Equal Protection Clause, and (2) CAPEEM cannot produce evidence, sufficient to withstand summary judgment, demonstrating defendants intended to discriminate against CAPEEM’s members during the adoption process. With respect to defendants’ first argument, plaintiff alleges that the adopted textbooks’ content violates the Equal Protection Clause. (SAC ¶ s 5.6, 5.8, 5.10, 5.12; Linton Decl. in Supp. of Defs.’ MSJ, filed Dee. 30, 2008 [Docket # 162], Ex. C [Interrog. Resps. 8, 12, 16].)
16
This claim must fail, however, because the State has the discretion to determine the content of its curriculum, and the Equal Protection Clause does not provide a basis to challenge such curriculum decisions.
Monteiro v. Tempe Union High Sch. Dist.,
In
Monteiro,
a parent brought an equal protection challenge to her child’s high school curriculum based on race. The curriculum allegedly caused African-American students to suffer psychological injuries and lost educational opportunities due to required reading that contained “repeated use of the profane, insulting and racially derogatory term ‘nigger.’ ”
Similarly, here, CAPEEM maintains that the textbooks are discriminatory against Hindus and will result in psychological harm and lost educational opportunities for Hindu students. Monteiro squarely forecloses an equal protection claim on this basis. Accordingly, to the extent plaintiff bases its equal protection claim on a challenge to the textbooks’ contents themselves, defendants’ motion for summary judgment is GRANTED.
Plaintiff also brings its equal protection claim on the basis of ■ alleged disparate treatment of CAPEEM members in the textbook adoption process. As to this process claim, defendants assert plaintiff fails to produce sufficient evidence that (1) defendants acted with discriminatory intent; (2) a similarly situated group was treated more favorably; and (3) CAPEEM’s mem
(1) Discriminatory Intent
First, proof of discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.,
For example, CAPEEM proffers evidence of certain procedural irregularities that only effected Hindu groups supporting the HEF/VF edits: (1) these Hindu groups’ recommended edits were subject to formatting requirements which other religious groups’ edits were not subjected (PDF ¶ s 6-8); (2) the suggestions of these Hindu groups were subject to arbitrary deadlines which other religious groups were not subjected (PDF ¶ 17); (3) while certain controversies concerning the textbooks’ contents involved religions other than Hinduism, defendants only brought in experts opposed to the Hindu groups in order to evaluate the Hindu groups’ suggested edits (PDF ¶ s 13, 17, 47-48, 67, 70, 166, 184-186);
17
(4) defendants fully vetted Dr. Bajpai, who supported the HEF/VF edits, but they did not do the same for the experts they hired who opposed the edits, and defendants imposed special requirements only on Dr. Bajpai and not on the experts opposing the edits, which included disallowing Dr. Bajpai from having any connection to the advocacy groups supporting the HEF/VF edits and precluding him from having any relationship with publishers submitting textbooks in the process (PDF ¶ s 44-46, 49, 51-56, 59, 60);
18
(5) various edits suggested by these Hindu groups which were similar to edits suggested by other religious groups were nonetheless treated differently, including (a) while the requests of Jewish groups to'capitalize the “g” in “god” were granted the same request of the Hindu groups was not (PDF ¶ s 175-176); (b) the request of Jewish participants to remove text related to a claimed higher social status of Jews with respect to Samaritans was removed but the alleged offensive text which blamed Hinduism for an oppressive caste system was not removed (PDF ¶ s 180-181); (c) defendants removed claims of Christianity being an improvement over Judaism when Jewish participants complained but defendants denied the Hindu groups’ request to remove claims of Bud
In addition to these procedural irregularities which CAPEEM proffers as circumstantial evidence of defendants’ discriminatory intent toward the Hindu groups supporting the HEF/VF edits, CAPEEM also provides evidence of certain statements, which when viewed in the light most favorable to plaintiff, evidence hostility toward the Hindu groups. Said evidence includes the following: (1) defendants were aware of Dr. Witzel’s alleged biases toward the Hindu groups as a result of statements Witzel made to Tom Adams and as a result of information the Hindu groups provided to defendants about Witzel’s derogatory statements toward the Hindu groups, yet defendants continued to consult Witzel and involve him in the process (PDF ¶ s 108, 112); 19 (2) defendants accused “[HEF/VF] ... [of] theological tweaking” (PDF ¶ 258); (3) Charles Munger, a member of the Commission, called the HEF/VF edits “foolish” (PDF ¶ 100); and (4) Tom Adams called VF member Janeshwari Devi’s comments a “nationalist interpretation of Indian history,” despite the fact that Devi is from the United States, and Adams testified he did not think she was of Indian descent (PDF ¶ 31).
These facts sufficiently raise a triable issue as to defendants’ intent in considering the positions of the Hindu groups who supported the HEF/VF edits. While defendants may well contend that such evidence is insufficient for plaintiff to
prevail
on its equal protection claim, that argument goes to the weight of this evidence, which is ultimately an issue for the trier of fact to consider. (Defs.’ Reply, filed Jan. 23, 2009 [Docket # 200], at 5-9.) At this juncture, the court must construe the evidence proffered by plaintiff in the light most favorable to plaintiff.
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255,
(2) Similarly Situated Group
Defendants also argue that CAPEEM’s equal protection challenge to the adoption process must fail because it does not identify a similarly situated group of persons who allegedly received more favorable treatment. According to defendants, it was only the various Hindu
(3) Disparate Treatment from Other Similarly Situated Group
Finally, defendants argue that even if plaintiff can adequately identify a group of similarly situated persons, it cannot establish that it was treated less favorably than these other persons in the textbook adoption process. Defendants contend all participants in the process, including the Hindu groups supporting the HEF/VF edits, received an equal opportunity to participate in the process. Again, for the same reasons as set forth above, CAPEEM proffers sufficient evidence to raise a material issue of fact concerning whether its members received the same opportunity to participate in the process as other religious groups. Viewed in the light most favorable to plaintiff, the evidence shows that only the Hindu groups supporting the HEF/VF edits were subjected to certain, more strenuous procedures and standards.
See Flores v. Pierce,
Accordingly, for all of the above reasons, defendants’ motion for summary judgment as to plaintiffs equal protection claim challenging the textbook adoption process is DENIED. 20
The Establishment Clause provides: “Congress shall make no law respecting an establishment of religion .... ” U.S. Const, amend. I, cl. 1. The prohibition of the Establishment Clause applies to state governments through the Fourteenth Amendment.
Everson v. Board of Education,
the Establishment Clause [has come] to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs.
County of Allegheny v. ACLU,
[27] As decreed by the Supreme Court, and followed in the Ninth Circuit,
21
claims brought under the Establishment Clause are analyzed under the three-part “Lemon Test.”
See Lemon v. Kurtzman,
In its complaint, CAPEEM alleges that defendants violated the Establishment Clause when it adopted the instructional materials and final edits, which are allegedly biased against Hinduism and treated other religions more favorably and accurately. (SAC ¶ 6.3—6.6, 6.9-6.10.) In addition, CAPEEM alleges defendants violated the Establishment Clause during the adoption process by imposing “special hurdles” for the Hindu groups and Hindu expert, Dr. Bajpai, and by using experts allegedly biased against the Hindu groups supporting the HEF/VF edits. (SAC ¶ 6.7—6.8.) Defendants move for summary judgment as to both theories of plaintiffs claim. However, in opposing defendants’ motion, plaintiff addresses only whether it can establish an Establishment Clause violation based on the textbooks’ contents themselves.
Plaintiff does not separately argue, or provide evidence to support, an Establishment Clause violation based on the textbook adoption process. (Pl.’s Opp’n to Defs.’ MSJ at 22-33; Defs.’ Reply on MSJ at 12:17-18.) Therefore, the court construes plaintiffs failure to respond as a non-opposition to that portion of defendants’ motion. E.D. Cal. L.R. 78-230(c). Accordingly, the court addresses only whether plaintiff has raised a triable issue of fact that the subject textbooks violate the Establishment Clause.
Before applying the
Lemon
test, several preliminary issues are worth noting. As an initial matter, in assessing defendants’ motion, the court has considered that alleged violations of the Estab
However, the court is also mindful that this heightened concern is balanced to a great degree by the broad discretion of a school board to select its public school curriculum.
Epperson v. Arkansas,
In the context of this balance, courts have held a number of activities to be violations of the Establishment Clause, including: (1) inviting clergy to offer invocation and benediction prayers at formal graduation ceremonies for high schools and middle schools
(Lee,
Here, the State of California has determined that students should study the importance of religion in the world history and ancient civilization course to gain a better understanding of different cultures and conflicts. The SBE considered various comments and recommendations regarding the proposed textbooks, it held numerous meetings, both public and private regarding the appropriate content for the adopted textbooks and it consulted several experts in the various religions to determine whether the proposed books were accurate and neutral. After weighing all of the above, it made the decision to approve certain edits and adopt certain textbooks for use in the State’s public schools. CAPEEM objects to certain aspects of the textbooks’ content. However, mere disagreement with the contents of the textbooks will not establish an Establishment Clause claim. “If an Establishment Clause violation arose each time a student believed that a school practice either advanced or disapproved of a religion, school curricula would be reduced to the lowest common denominator, permitting each student to become a ‘curriculum review committee’ unto himself or herself.”
Brown,
(1) Secular Purpose
The secular purpose prong of the
Lemon
test asks whether the government’s actual purpose is to endorse or disapprove of religion.
Wallace v. Jaffree,
CAPEEM fails to offer any evidence to the contrary; indeed, it does not expressly discuss the secular purpose prong in its opposition. Thus, the court finds that defendants have demonstrated, conclusively in their favor, that the State’s use of the subject textbooks has a secular purpose. The first element of the Lemon test is therefore satisfied.
(2) Endorsement or Disapproval of Religion
CAPEEM alleges that the textbooks have the primary effect of advancing other religions and inhibiting the Hindu religion. (SAC ¶ s 6.3-6.6, 6.9-6.10.) CAPEEM has the burden of proving that defendants violated the second prong of the
Lemon
test, which bars governmental actions that have the principal or primary effect of advancing or disapproving religion.
Vasquez v. L.A. County,
In reviewing plaintiffs objections to the textbooks, the court must consider the textbooks and the curriculum as a whole to determine whether the primary effect is to endorse or inhibit religion.
Grove,
To prevail on this element of the Lemon test, CAPEEM must show that an objective sixth grade student would find that the primary effect of the textbooks is to convey a message that the government endorses Abrahamic religions or disapproves of Hinduism. While the parties heavily dispute whether the adopted textbooks neutrally and accurately depict these religions, that dispute does not preclude entry of summary judgment in favor of defendants. Even considering the evidence in the light most favorable to plaintiff (i.e., accepting plaintiffs position that the texts, in part, inaccurately and negatively depict Hinduism while simultaneously providing a more favorable depiction of Abrahamic religions), 23 the court cannot find that the textbooks, when viewed as a whole and as part of the overall curriculum, convey a message of government endorsement or disapproval of a particular religion.
Significantly, the challenged passages of the textbooks are only a small portion of otherwise clearly nonreligious texts—the books at issue are
history-social sciences
textbooks—which are part of a clearly, nonreligious history-social sciences program. In that respect, this case is closely analogous to
Brown
wherein the Ninth Circuit recognized that when a challenged textbook is only a small part of an otherwise clearly nonreligious program, it is “unlikely that [an] objective observer would perceive the inclusion of the [objected-to] selections ... as an endorsement or disapproval of religion.”
The Ninth Circuit’s decision in
Grove
is in accord, and
Grove
is also factually analogous to this case. In
Grove,
the plaintiffs alleged that the book entitled
The Learning Tree,
which was part of the defendant school’s sophomore curriculum, advanced the religion of secular humanism in violation of the Establishment Clause. The court rejected the claim. Observing that the Supreme Court has stated clearly that literary and historic study of the Bible is not prohibited religious activity, the court concluded the reading of the book was not a ritual but a study of the “expectations and orientations of Black Americans.”
Plaintiffs reliance, to the contrary, on
Vaughn
and
Herdahl
is uncompelling. These cases involved the teaching of
religious education classes,
in
Herdahl,
more specifically, the Bible, by private religious educators brought in to the public schools by the school districts; the classes were taught during normal school hours and on school grounds; students could “opt out” of the religious education classes and perform other course work during this class time.
Vaughn,
The same cannot be said of defendants’ use of the subject history-social sciences textbooks in this case. Here, the study of religion, including Hinduism, is done in the context of the sixth grade world history and ancient civilizations course. (DUF ¶ 2.) More specifically, the study of religion is done within the larger context of human history. (DDF ¶ s 156-168.) Students study the world history and geography of ancient civilizations, including the early societies of the near East and Africa, the ancient Hebrew civilization, Greece, Rome and the classical civilizations of India and China. (DDF ¶ 161.) Students receive an overview of these societies, including the geography of the region; trade; art; social, economic and political structures; and the everyday lives of the people. (DDF ¶ 162.) In this context, students study about the religions and religious texts of the different ancient civilizations. (DDF ¶ s 163-168.) It is within this overall curriculum that plaintiffs specific objections to the texts must be evaluated.
And, within this context, the court cannot find that a reasonable sixth grade student using the in question texts would believe the primary effect of the books is to convey a message that the State approves of a particular religion or specifically disapproves of Hinduism. A few examples ably illustrate this point. For instance, CAPEEM objects to the OUP’s portrayal of Hindu women (PDF ¶ 243), but the specific section it complains of is a direct quote from a Hindu text, the Code of Manu (Id.). The OUP textbook goes on to sensitize the quote by explaining that women were more independent than what the Code says, stating: “The code claims that ‘On account of offspring, a wife is the bearer of many blessing, worthy of honor, and the light within a home; indeed in a home no distinction at all exits between a wife and Sri, the Goddess of Fortune.” (Adams Supp. DecI, Ex. A at 141.) Thus, when read in context, it is clear that the textbook actually softens the portrayal of women’s role from that found in the ancient Hindu texts. CAPEEM’s objections to the caste system are equally unavailing when read in context. For example, plaintiff objects that the textbook by McGraw Hill “passes a judgment that the caste system was wrong as it was a system created by Aryans for light-skinned people to oppress dark-skinned people.” (PDF ¶ 217.) To the contrary, the subject textbook actually provides that no one is sure why the caste system was created, and it gives multiple possible reasons, including: “[Ijdeas about skin color were probably part of it. The Aryans were a light-skinned people. They thought they were better than the dark-skinned people they encountered in India. This idea was wrong but the Aryans believed it.” (Balasubramani Deck, filed Jan. 13, 2009 [Docket # 172], Ex. 87-1.) Moreover, the textbooks refer to the “Aryans” developing the caste system, not Hindus.
The State has an obligation to teach history, including its “warts and bumps,” as described by defendants. (Defs.’ Reply at 15:19.) Conveying accurate but what may well be perceived as negative aspects of Hinduism does not mean that the primary effect of the textbooks is to inhibit religion.
See Grove,
CAPEEM’s comparison of edits that were accepted or rejected between different religious groups, allegedly demonstrating the more favorable treatment of other Abrahamic religions, is equally unavailing. The appropriateness of the recommended edits for each religion must be determined on a religion-by-religion basis as each has its own tenets. Furthermore, courts have repeatedly recognized that “[t]otal separation of church and state is simply impossible.”
Grove,
are matters which the courts ought to entrust very largely to the experienced officials who superintend our Nation’s public schools. They are experts in such matters, and [the courts] are not.
In sum, CAPEEM’s isolated passages taken out of context do not support its Establishment Clause claim. When the textbooks are read as a whole, and as part of the larger curriculum, it is clear that the primary effect of the textbooks is to educate students about ancient history, and not to serve as a religious primer.
See Grove,
(3) Excessive Entanglement with Religion
The third prong of the
Lemon
test prohibits excessive entanglement with religion. The Ninth Circuit recognized in
Brown
that the mere adoption and use of curriculum materials is insufficient to constitute excessive entanglement.
In its only argument opposing defendants’ motion on this issue, plaintiff cites out-of-circuit authority holding that unlawful entanglement can be shown where the
government is
placed in a position of choosing among “competing religious views.”
EEOC v. Catholic Univ. of Am.,
These decisions do not address a State’s adoption of secular curriculum materials and as such, are inapposite.
Catholic Univ. of Am.,
To the contrary, the Ninth Circuit held in
Brown,
a case challenging a school district’s use of a particular reading series allegedly endorsing religious rituals of witchcraft, that the mere adoption and use of curriculum materials does not establish excessive entanglement for purposes of the
Lemon
test.
d. Free Speech and Association Clause Claim
Defendants move for summary judgment as to plaintiffs third claim for relief for violation of the First Amendment’s Free Speech and Association Clauses on the ground plaintiff cannot establish a violation of their members’ free speech or association rights because CAPEEM has no right to dictate the content of the government’s speech in this case, and defendants can impose reasonable time, place and manner restrictions on plaintiffs members’ speech conducted in limited public fora. (Defs.’ Mem. of P. & A. in Supp. of MSJ, filed Dec. 30, 2008 [Docket # 157], at 32-35.) Defendants’ arguments misconstrue the nature of this claim. As alleged in the second amended complaint, CAPEEM contends defendants improperly penalized CAPEEM members (and others who supported the HEF/VF edits) for their supposed affiliation with third party “Hindutva” groups. Plaintiff asserts that in rejecting the HEF/VF edits solely because defendants believed CAPEEM members and other Hindu groups were affiliated with certain third-party “Hindu nationalists” groups, defendants chilled the First Amendment free speech and association rights of CAPEEM’s members. (SAC ¶ s 7.1-7.9.)
This is plaintiffs theory as alleged in its complaint. Now, at summary judgment, plaintiff must proffer evidence in support of that theory. In attempting to establish the existence of a factual dispute, the opposing party may not simply rely upon its pleading, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, to support its contention that a factual dispute exists. Fed.R.Civ.P. 56(e). Plaintiff has not done so here. In its opposition, plaintiff cites only the deposition testimony of CAPEEM member Karthik Venkataramani in support of this claim. (Pis.’ Opp’n to Defs.’ MSJ at 33-34.) Mr. Venkataramani testified that his wife was concerned over him being demonized for his participation in the textbook adoption process, and she wondered whether his participation in the process would inhibit other civil rights activities he might choose to engage in the future. (PDF ¶ 169.)
Said testimony is insufficient to raise a triable issue of fact as to whether defendants’ conduct chilled CAPEEM’s members free speech and association rights. First, the testimony is inadmissible hearsay and not properly considered by the court in the first instance. Fed.R.Evid. 801. Even were the court to consider the evidence, the testimony does not establish that Mr. Venkataramani was “demonized” due to any affiliation with Hindutva or Hindu nationalist groups, nor does it establish that due to defendants’ conduct, allegedly affiliating him with such groups, Mr. Venkataramani refrained from engaging in certain speech or association. This testimony is simply irrelevant to this claim.
Because plaintiff offers no evidence whatsoever in support of its mere allegations that its members’ free speech and association rights were chilled as a result of defendants’ alleged actions affiliating CAPEEM’s members with Hindu extremist groups, the court must grant judgment in defendants’ favor on this claim. While defendants did not move for summary judgment on this precise ground, they did move for judgment in their favor on this claim. As the moving party, who does not bear the burden of proof at trial on this claim, defendants needed to show only “that there is an absence of evidence to
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for partial summary judgment as to its equal protection claim asserted on the basis of the alleged unlawful indoctrination of students into the Christian and Jewish religions is DENIED; plaintiff lacks standing to raise such a claim which is not germane to its organizational purpose. Defendants’ motion for summary judgment, or alternatively, partial summary judgment is GRANTED in part and DENIED in part. Judgment is entered in defendants’ favor as to plaintiffs Establishment and Free Speech and Association Clause claims. Defendants’ motion is DENIED with respect to plaintiffs equal protection claim to the extent it alleges violations of law based on conduct occurring during the textbook adoption process; defendants’ motion as to plaintiffs equal protection claim is GRANTED, however, to the extent this claim is based on the subject textbooks’ content; such a claim is not cognizable under the Equal Protection Clause.
IT IS SO ORDERED.
Notes
. "Defendants” refers collectively to Kenneth Noonan, Ruth Bloom, Alan Bersin, Yvonne Chan, Donald G. Fisher, Ruth E. Green, Joe Nunez, Johnathan Williams and David Lopez, in their official capacities as Members of the California State Board of Education, and Tom Adams, in his official capacity as Director of the Curriculum Frameworks and Instructional Resources Division and Executive Director of the Curriculum Commission.
. Because oral argument will not be of material assistance, the court orders these matters submitted on the briefs. E.D. Cal. L.R. 78-230(h).
.Plaintiff also brings its Establishment Clause claim on an alternative theory: CAPEEM alleges defendants violated the Establishment Clause when it adopted the instructional materials and final edits which are allegedly biased against Hinduism and treated other religions more favorably and accurately. As set forth below, defendants move for summary judgment on this theory. Plaintiff does not cross-move for summary judgment on this issue. Instead, plaintiff’s affirmative motion for partial summary judgment is limited to the theory of the alleged, unlawful indoctrination of students into the Christian and Jewish religions.
. As such, with the exception of those facts pertaining to the standing inquiry, the court does not recount herein the facts which are only pertinent to CAPEEM’s motion.
. Unless otherwise noted, the facts set forth below are undisputed. Where a dispute of facts exists, the court recounts the facts in the light most favorable to plaintiff. Both parties filed various objections to each other’s evidence. In large part, the court declines to rule on said objections as it does not rely on the subject evidence in rendering its decision herein. However, to the extent it does rely on any objected-to evidence, the party’s relevant objection is overruled. As to plaintiff's separately filed motion to strike defendants' expert Gonzalez-Reimann’s expert report and rebuttal report (Docket # 189), the court DENIES the motion as moot. The court does not rely on said reports in rendering judgment in defendants’ favor in the respects set forth below.
. Plaintiff filed a response to defendants' statement of undisputed facts, setting forth only those facts to which it claimed were disputed. (CAPEEM's Stmt, of Disputed Facts re: Defs.’ MSJ, filed Jan. 13, 2009 [Docket # 175] [hereinafter, “RDF”].) Thus, in all other respects, the court treats defendants’ stated facts as undisputed. Where plaintiff has raised material, admissible evidence to dispute a particular fact, the court cites to either plaintiff's response to defendants’ statement of undisputed facts (the aforementioned "RDF”) or to plaintiff's separately filed statement of (purported) undisputed facts filed in opposition to defendants’ motion (Defs.' Resp. to Pl.’s Stmt, of Undisp. Facts, filed Jan. 23, 2009 [Docket # 201] [hereinafter, “PDF”].) While plaintiff proffers these facts as un disputed, in most material respects the facts are disputed by defendants. (Id.) Ultimately, the court cites to either the “RDF” or “PDF” when denoting facts raised by plaintiff which create a triable issue of fact and thus provide a basis for the denial of defendants’ motion in the respects set forth below.
. The State Department defines Hindutva as “the politicized inculcation of Hindu religious and cultural norms to the exclusion of other religious norms. Hindutva, often synonymous with 'cultural nationalism,' excludes other religious beliefs and fosters religious intolerance.” (Defs.' RJN, filed Dec. 30, 2008 [Docket # 159], Ex. D, 2003 Report at 1.)
. For example, plaintiff states one textbook describes the Hindu religious texts, the Vedas, as a "collection of poems, myths, hymns and rituals.” (Defs.' Resp. to Pl.'s Stmt, of Undisputed Facts in Supp. of MSJ, filed Jan. 13, 2009 [Docket # 173] [hereinafter, "PUF”], ¶ 150.) Similarly, unlike the case of Christianity and Judaism where the origin of the religion is presented through the lens of believers and the lens of the relevant religious texts, plaintiff asserts the origin of Hinduism is not attributed to Hindu beliefs. Instead, plaintiff points out that the Holt textbook's chapter states that Hinduism was developed by people called Aryans and then gives a description of an oppressive caste system. The chapter ends with a description of Jainism and mentions how there were people "unsatisfied” with Hinduism. (PUF ¶8 151— 152.) Plaintiff alleges the chapter on Buddhism also begins by taking a dim view and mentions how a young man was “dissatisfied with the teachings of Hinduism.” (PUF ¶ 154.) Finally, plaintiff describes that the Holt textbook's chapter on Hinduism does not present any Hindu texts as historical documents. Yet that same textbook refers to the Torah as a Jewish "account” of the early history of the world, and the Gospels as the "accounts” of Jesus' life and teachings. (PUF ¶ 125.)
. At times on these motions, plaintiff asserts arguments challenging certain seventh grade textbooks. Said textbooks are not at issue in the instant action as the complaint raises issues pertaining only to the adoption of certain sixth grade history-social science textbooks. Fed.R.Civ.P. 8 (requiring that the complaint provide the defendant with a short and plain statement of the claims against it). As such, the court has not considered plaintiff’s arguments directed at any seventh grade textbooks.
. On March 16, 2006, the Hindu American Foundation ("HAF”) initiated a parallel action in state court seeking a writ of mandate. HAF alleged (1) procedural violations of California’s APA, arguing the procedures through which defendants reviewed and approved the textbooks were not conducted under regulations formally promulgated under the State’s APA, and California’s Bagley-Keene Open Meeting Act, based on the SBE’s failure to hold public meetings, and (2) content-based violations under California’s Education Code, arguing the textbooks are not in compliance with the substantive, state legal standards applicable to their content. The court ultimately rejected HAF’s content based claims but found that the textbook adoption process was flawed because the governing regulations had not been properly promulgated under the State’s APA. (DUF ¶ 49.) As a result of the state court’s decision, CDE promulgated new regulations for the textbook adoption process, which will be utilized in future textbook adoptions. Id.
.The court does not set forth the standard for cross-motions for summary judgment because as set forth above, while both parties move for summary judgment with respect to plaintiff's Establishment Clause claim, they move with respect to different theories of plaintiff's claim.
. All three prongs of the
Hunt
test must be satisfied to find that an organization has standing to assert an action on behalf of its members. Because CAPEEM cannot establish the second requirement, the court need not consider the other elements.
See Ranchers Cattlemen Action Legal Fund United Stock-growers of Am. v. U.S. Dept. Of Ag.,
.Though not fully developed in their papers, defendants appear to argue as an additional basis for finding a lack of standing, that plaintiff cannot demonstrate a likelihood of future harm. Defendants are correct that even when seeking prospective relief, a plaintiff must still satisfy the "imminence” requirement for Article III standing and demonstrate that its injury is currently impending.
Scott v. Pasadena Unified Sch. Dist.,
. Defendants did not argue that plaintiff could not establish the other two elements of the Hunt test, with respect to plaintiff’s challenges to the adoption process involving issues pertaining to Hinduism, and therefore, the court does not discuss the elements of germaneness and necessity of individual participation.
. All of plaintiff's constitutional claims are brought pursuant to 42 U.S.C. § 1983. Section 1983 provides in part that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...Section 1983 confers no substantive rights itself, but rather, "provides remedies for deprivations of rights established elsewhere.”
City of Oklahoma City v. Tuttle,
. In opposing defendants' motion, plaintiff appears to concede this claim is not viable under Monteiro, described below. (Pl.’s Opp'n to Defs.' MSJ, filed Jan. 14, 2009 [Docket # 193-2], at 15-16.) Plaintiff argues only that Monteiro does not foreclose its equal protection claim directed at improprieties in the textbook adoption process. Defendants do not contend Monteiro precludes plaintiff’s process-related equal protection claim. Because plaintiff clearly alleged its equal protection claim, in part, on the basis of the textbooks' contents, as stated in its second amended complaint and in discovery responses, the court briefly addresses whether such a claim is viable herein.
. To contrary, plaintiff proffers evidence that the advisors for Christianity, Islam and Judaism, Nystrom, Mansuri and Janowitz, were not hostile to these religions. (Id.)
. The experts opposing the HEF/VF edits were not put to the same requirements. For example, plaintiff proffers evidence that Wolpert acted as a consultant to one of the publishers submitting a textbook in the process at the same time he served as a panelist on the Ad Hoc Committee. Defendants conceded in this litigation that such a dual role presented a conflict of interest. (See Defs.’ Reply on MSJ, filed Jan. 23, 2009, at 6-7; PDF ¶ s 61-62.)
. Defendants’ argument that they cannot be held liable for the alleged biases of Dr. Witzel, a “third-party” to this litigation, is unavailing. Defendants hired Witzel as an advisor in this process; any alleged biases he had, of which defendants were aware are relevant to this case; specifically, whether defendants intended to discriminate against plaintiff.
. As their final argument directed at plaintiff's equal protection claim, defendants contend that even if plaintiff could make a showing that its members were treated differently than similarly situated groups, the SBE’s actions toward plaintiff’s members was done to avoid a violation of the Establishment Clause, and thus, defendants have a defense to liability under the Ninth Circuit's “Establishment Clause defense”-jurisprudence.
Hills v. Scottsdale Unified Sch. Dist.,
.
See Brown v. Woodland Jt. Unif. Sch. Dist.,
. In opposing defendants' motion, plaintiff relies primarily on Vaughn and Herdahl. However, for the reasons set forth below, these cases are easily distinguishable from this case.
.
See Grove,
. Indeed, in analyzing the same essential challenges to the textbooks under state law, a slate superior court determined that the subject books are neutral and non-discriminatory. “The various texts appear to the Court on their face to be dispassionate and neutral with respect to religion, objectively describing the features of the Hindu religion and others without overtly or covertly ‘taking sides’ with one another. Moreover, the Court finds nothing in the way of derogatory language or examples from sacred texts or other religious literature that could be classified as derogatory, accusatory or that would instill prejudice against the Hindu religion or its faithful. (Defs.’ RJN, Ex. A at A0010.)