"Jewish, Zionist" Teachers' and Parents' Lawsuit Over Allegedly Anti-Capitalist and Anti-Zionist School Curriculum Can Be Refiled, Ninth Circuit Rules

From Concerned Jewish Parents & Teachers of L.A. v. Liberated Ethnic Studies Model Curriculum Consortium, decided Friday by Judges Kenneth Kiyul Lee, Patrick Bumatay, and Jennifer Sung:

This case arises from an ethnic studies model curriculum for high school classrooms developed and championed by the Liberated Ethnic Studies Model Curriculum Consortium (the Consortium), an advocacy group. The proposed curriculum has not been formally proposed to nor adopted by the Los Angeles Unified School District (LAUSD). But the plaintiffs—who are Jewish parents with children enrolled in LAUSD and teachers within that district—claim that at least two teachers are informally using the curriculum, which allegedly promotes anti-Zionist and antisemitic ideals. The plaintiffs also allege that the Consortium, along with the LAUSD public school teachers’ union and individuals affiliated with these organizations, wield informal influence over district-wide curricular offerings. The plaintiffs sued, asserting civil rights claims under federal and state law. The district court dismissed with prejudice for insufficiency of the pleadings….

The court agreed that the plaintiffs lacked standing:

Absent more concrete allegations, the plaintiffs have not shown that they personally suffered the harm of religious or racial discrimination. The complaint does not allege that the curriculum—despite being used in two classrooms—is being taught at any classroom or even school where the plaintiffs’ children attend or plaintiff-teachers work. The alleged harm—the mere knowledge that the curriculum is being taught at two classrooms at LAUSD, which has over 100,000 high school students across dozens of schools—is too remote and speculative to constitute an injury-in-fact.

Our circuit’s standing precedent does not require the plaintiffs to allege that they or their children were directly exposed to antisemitic elements of the curriculum. But they must at least allege having personally suffered some harm plausibly attributable to the curriculum’s spread within the district or the plaintiffs’ schools—for example, that the plaintiffs have suffered an independent act of antisemitism causally linked to the curriculum’s use within LAUSD or the school…. [Nor do they] offer … facts that would suggest inevitable or likely exposure to the curriculum (or its harmful effects)….

But the court concluded that plaintiffs should have been given leave to file an amended Complaint:

In briefing and during argument, the plaintiffs offered several proposed amendments that could potentially cure the standing deficiencies. These include, for example, that the challenged curriculum has proliferated in the two-plus years that have passed since the lawsuit was filed, and that the plaintiffs’ children have suffered related antisemitic acts at school (such as bullying)….

The court expressly declined to consider the merits of the case, and faulted the district court for considering the merits (“Because the district court concluded that plaintiffs lacked standing, it should not have reached the merits of the plaintiffs’ claims”).

And the court concluded that, because plaintiffs should be able to file an amended complaint, the district court shouldn’t have awarded defendants attorney fees under the California anti-SLAPP statute: “[O]ur circuit has held that in federal court, a defendant may only prevail on an anti-SLAPP motion once it is clear the complaint cannot be saved by amendment.”

You can also see the November 2024 post quoting the district court decision.

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