Capeem v. Tom Torlakson ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA PARENTS FOR THE No. 19-15607
EQUALIZATION OF EDUCATIONAL
MATERIALS; ARVIND RAGHAVAN, D.C. No.
individually and as parent and next 3:17-cv-00635-
friend of M.R. and N.R.; CRB
VISHNUKUMAR THUMATI,
individually and as parent and next
friend of P.T. and N.T.; SHAILESH OPINION
SHILWANT, individually and as
parent and next friend of P.S. and
P.S.S.,
Plaintiffs-Appellants,
v.
TOM TORLAKSON, in his official
capacity as State Superintendent of
Public Instruction and Director of
Education for the California
Department of Education; TOM
ADAMS, in his official capacity as
Deputy Superintendent of the
Instruction and Learning Support
Branch of the California Department
of Education; STEPHANIE GREGSON,
in her official capacity as Director of
the Curriculum Frameworks and
Instructional Resources Division of
the California Department of
2 CAPEEM V. TORLAKSON
Education; MICHAEL KIRST; ILENE
STRAUS; SUE BURR; BRUCE
HOLADAY; FELIZA I. ORTIZ-LICON;
PATRICIA ANN RUCKER; NICOLASA
SANDOVAL; TING L. SUN; TRISH
BOYD WILLIAMS, each in their
official capacity as a member of the
California State Board of Education;
MYONG LEIGH, in his official
capacity as Interim Superintendent
of the San Francisco Unified School
District; SHAMANN WALTON;
HYDRA MENDOZA-MCDONNELL;
STEVON COOK; MATT HANEY;
EMILY M. MURASE; RACHEL
NORTON; MARK SANCHEZ, each in
their official capacity as a member
of the San Francisco Unified School
District; RICK SCHMITT, in his
official capacity as Superintendent
of the San Ramon Valley Unified
School District; MARK JEWETT; KEN
MINTZ; RACHEL HURD; DENISE
JENNISON; GREG MARVEL, each in
their official capacity as a member
of the San Ramon Valley Unified
School District Board of Education;
WENDY GUDALEWICZ, in her official
capacity as Superintendent of the
Cupertino Union School District;
ANJALI KAUSAR; LIANG CHAO;
KRISTEN LYN; SOMA MCCANDLESS;
PHYLLIS VOGEL, each in their
CAPEEM V. TORLAKSON 3
official capacity as a member of the
Cupertino Union School District
Board of Education; CHERYL
JORDAN, in her official capacity as
Superintendent of the Milpitas
Unified School District; DANIEL
BOBAY; DANNY LAU; CHRIS
NORWOOD; HON LIEN; ROBERT
JUNG, each in their official capacity
as a member of the Milpitas Unified
School District Board of Education,
Defendants-Appellees,
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Intervenor.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted July 14, 2020
San Francisco, California
Filed September 3, 2020
Before: Sidney R. Thomas, Chief Judge, and Mary M.
Schroeder and Daniel A. Bress, Circuit Judges.
Opinion by Judge Schroeder;
Concurrence by Judge Bress
4 CAPEEM V. TORLAKSON
SUMMARY*
Civil Rights
The panel affirmed the district court’s dismissal of all but
one of plaintiffs’ claims and its summary judgment in favor
of defendants on the remaining claim in an action brought by
parents of Hindu children in the California public schools
who alleged discrimination against the Hindu religion in the
content of the History-Social Science Standards and
Framework for sixth and seventh graders.
The complaint focused on a handful of provisions in the
1998 Standards and the 2016 Framework and alleged these
curriculum materials carried a hostile and denigrating
message about the origins of Hinduism when compared with
similar provisions relating to other religions of the world.
Addressing Appellants’ Equal Protection claims that the
Standards and Framework discriminate against Hinduism, the
panel held that the district court correctly characterized the
challenge as an indirect attack on curricula. The panel
determined that the allegations in the complaint contained no
reference to State Board policy, nor did the allegations
describe any materials used in the classroom from which such
a policy could be inferred. Citing Monteiro v. Tempe Union
School District, 158 F.3d 1022 (9th Cir. 1998), the panel
noted that, at least absent evidence of unlawful intentional
discrimination, parents are not entitled to bring Equal
Protection claims challenging curriculum content.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CAPEEM V. TORLAKSON 5
Addressing Appellants’ claims under the Free Exercise
clause of the First Amendment, the panel held that the
complaint did not allege interference with Appellants’
exercise of their religion under the Constitution as required
for a viable Free Exercise claim under Trinity Lutheran
Church v. Comer, 137 S. Ct. 2012 (2017), and Espinoza v.
Montana Department of Revenue, 140 S. Ct. 2246, 2252
(2020). The panel held that offensive content that does not
penalize, interfere with, or otherwise burden religious
exercise does not violate Free Exercise rights.
Addressing the Fourteenth Amendment substantive due
process claim, the panel held that, with respect to education,
parents have the right to choose the educational forum, but
not what takes place inside the school. Parents therefore do
not have a due process right to interfere with the curriculum,
discipline, hours of instruction, or the nature of any other
curricular or extracurricular activities.
Finally, addressing the First Amendment Establishment
clause claims, the panel held that the district court did not
abuse its discretion by excluding an expert report offered by
plaintiffs to explain how, from the perspective of a person
knowledgeable in the field of religious history, the Standards
and Framework express a negative view of Hinduism. The
panel held that it must evaluate the Standards and Framework
from the perspective of an objective, reasonable observer, and
not that of an academic who is an expert in the field. The
panel concluded that the Standards and Framework did not
call for the teaching of biblical events or figures as historical
fact, thereby implicitly endorsing Judaism, Christianity, and
Islam. The panel further concluded that none of Appellants’
characterizations of the Hinduism materials as disparaging
was supported by an objective reading of those materials.
6 CAPEEM V. TORLAKSON
Concurring, Judge Bress stated that the majority opinion
correctly held that there was no basis in this record to
conclude that the defendants discriminated against Hinduism.
The majority also properly rejected the plaintiffs’
Establishment Clause challenge. Judge Bress noted that some
portions of the majority opinion discussing plaintiffs’
Establishment Clause claim drew upon Ninth Circuit
precedent that was based on Lemon v. Kurtzman, 403 U.S.
602 (1971), and that the list of situations in which the
Supreme Court has effectively repudiated the Lemon test,
either by expressly declining to apply the test or simply
ignoring it, has grown quite long. Judge Bress nevertheless
stated that regardless, whether under a Lemon-based test or an
Establishment Clause analysis more appropriately grounded
in the history and traditions of this country, there was no
establishment of religion here.
COUNSEL
Glenn Katon (argued), Katon Law, Oakland, California, for
Plaintiffs-Appellants.
Thomas H. Prouty (argued), Deputy General Counsel; Todd
M. Smith, Assistant General Counsel; Keith Yamanaka,
General Counsel; California Department of Education,
Sacramento, California; for Defendants-Appellees.
CAPEEM V. TORLAKSON 7
OPINION
SCHROEDER, Circuit Judge:
Parents of Hindu children in the California public schools
filed suit against the State Department of Education and State
Board of Education claiming discrimination against the
Hindu religion in the content of the History-Social Science
Standards and Framework for sixth and seventh graders.
Appellants are individual parents and the organization
California Parents for the Equalization of Educational
Materials (CAPEEM). They alleged violations of several
constitutional provisions including Due Process, Equal
Protection, and the Establishment and Free Exercise clauses
of the First Amendment.
Their complaint focuses on a handful of provisions in the
1998 Standards and the 2016 Framework and alleges these
curriculum materials carry a hostile and denigrating message
about the origins of Hinduism when compared with similar
provisions relating to other religions of the world. Of
particular concern is the passage in the Standards concerning
the role of invaders, and their effect on the origins of
Hinduism. Plaintiffs allege that this theory has been
discredited and disparages their religion.
The district court dismissed all but one of the claims and
then granted summary judgment in favor of Appellees on the
remaining Establishment clause claim, holding that the
Standards and Framework do not communicate disapproval
of Hinduism. The court also excluded an expert report
offered by Appellants to explain how, from the perspective of
a person knowledgeable in the field of religious history, the
Standards and Framework express a negative view of
8 CAPEEM V. TORLAKSON
Hinduism. The court ruled that the question was how
curriculum materials would be understood by a reasonable
observer, not how an expert would interpret them. We
affirm.
I. BACKGROUND
A. California Content Standards, The Curriculum
Framework, And Their Relevant Provisions
The California State Board of Education (State Board)
develops model curriculum outlines to provide standardized
guidance to individual school districts. These outlines,
known as Content Standards and Curriculum Frameworks,
are used by individual school districts to design more tailored
course curricula. See Cal. Educ. Code § 60000(b). The State
Board first issues Content Standards, which are broad
guidelines for each major subject area, such as history and
math. See Cal. Educ. Code §§ 60602.5(a)(1), 60605, 60618.
The State Board then issues Curriculum Frameworks which
fill in more detail lacking in each of the Standards. See Cal.
Educ. Code §§ 60000, 60005, 60200(c). The local school
districts in California decide the precise contours of what is
taught in their public school classrooms, and can supplement
the materials or omit content contained in them. See Cal.
Educ. Code § 60000(b).
The State Board, in 1998, adopted the Content Standards
for history and social science that Appellants challenge in this
lawsuit. In just a few pages, the Content Standards outline
the history of the world’s first major civilizations and
religions, and invite sixth grade students to engage in critical
analysis of the “geographic, political, economic, religious,
CAPEEM V. TORLAKSON 9
and social structures” of each civilization, including Ancient
India.
The State Board then adopted the Curriculum Framework
for history and social science in 2016 after a lengthy
comment process that solicited feedback from the public.
Like the Content Standards, the Curriculum Framework calls
for students to analyze ancient civilizations from a social
science perspective, with materials to include, among other
subject matter, “the birth and spread of religious and
philosophical systems.” The Curriculum Framework
provides the additional detail and context lacking in the
Content Standards.
B. Plaintiffs And Challenged Provisions
Appellants here are a non-profit organization, CAPEEM,
and three parents on behalf of themselves and their children
enrolled in California’s public school system. CAPEEM is a
membership organization that exists to promote fair and
accurate depictions of Hinduism in the public school system.
This is not the first time that CAPEEM has challenged the
constitutionality of information about Hinduism provided to
public school students. In 2006, CAPEEM filed a lawsuit
claiming that California’s recently adopted text books had
content that was anti-Hindu, and that the use of such text
books violated the Establishment clause. The district court in
that case determined that the text books did not contain any
information that disparaged Hinduism, and granted summary
judgment to the state. Cal. Parents for Equalization of Educ.
Materials v. Noonan, 600 F. Supp. 2d 1088, 1119 (E.D. Cal.
2009). CAPEEM did not appeal. In this case, Appellants,
instead of challenging text books, challenge certain aspects of
10 CAPEEM V. TORLAKSON
the descriptions of Hinduism in the 1998 Standards and 2016
Framework.
Appellants first assert that the Standards and Framework
do not describe the divine origins of Hinduism or discuss the
sacred texts of their religion, while, at the same time,
describing the divine origins of the other major religions. As
an example, they point to language in the Standards that
describes Hinduism as consisting of “beliefs and practices,”
and they point as well to a characterization of one of
Hinduism’s sacred texts, the Bhagavad Gita, as an important
piece of literature in Ancient India. Appellants additionally
highlight a phrase in the Framework that describes Hinduism
as a “culture that emerged as a belief system.” They argue
that these are secular descriptions of Hinduism that are
disparaging when read alongside the descriptions of other
religions covered by the education materials.
Appellants object as well to the Standards’ instruction
directing the students to “[d]iscuss the significance of the
Aryan Invasions.” Appellants assert that this instruction
references a now-debunked theory that invaders from the
north entered ancient India, leading to the creation of
Hinduism.
Also causing Appellants concern is the Framework’s
description of the caste system in Ancient India; in particular,
Appellants object to the description of caste as a religious
belief. Appellants point to a passage in the Framework,
which says that “Teachers should make clear to students that
[caste] was a social and cultural structure as well as a
religious belief.” Appellants argue that the association with
the caste system singles out Hinduism for negative treatment
CAPEEM V. TORLAKSON 11
when compared with the other religions discussed in the
Standards and Framework.
These three objections form the basis of most of
Appellants’ constitutional claims.
C. The Complaint
Appellants filed their complaint in 2017. It alleges that
the content of the Standards and Framework, and the process
leading up to the Framework’s adoption, violate several
provisions of the constitution.
The complaint includes two Equal Protection claims. The
first is that the content of the Standards and Framework
describes Hinduism in derogatory terms and from the
perspective of a skeptic, whereas the same material describes
other religions with respect. Appellants also allege that the
Department of Education violated their Equal Protection
rights when it refused to accept all of CAPEEM’s proposed
edits to the Framework, while at the same time, accepting
edits from other religious groups during the notice and
comment process.
With respect to the Free Exercise clause, the complaint
alleges that the content of the challenged provisions of the
Standards and Framework denigrates Hinduism and is
therefore not neutral with respect to religion and violative of
their rights to free exercise. As with their Equal Protection
claims, Appellants also assert that occurrences in the process
leading up to the Framework’s adoption violated their Free
Exercise rights.
12 CAPEEM V. TORLAKSON
Bias against Hinduism in the content of the Standards and
Framework is the basis for the alleged substantive due
process violation as well. The complaint alleges that the
Standards and Framework “indoctrinate children with beliefs
biased deeply against Hinduism and in favor of the
Abrahamic religions,” and thereby interfere with the liberty
interests of the parent Appellants to control the upbringing
and education of their children.
Finally, the complaint contains two Establishment clause
claims. It alleges that the content of the Standards and
Framework unconstitutionally endorse Judaism, Christianity,
and Islam, because the content calls for the teaching of
religious events, significant to those religions, as historical
fact. The complaint then alleges in the second Establishment
clause claim that the content of the challenged materials has
the primary effect of disparaging or denigrating Hinduism.
All of Appellants’ constitutional claims thus relate to the
particular passages in the Standards and Framework that they
find objectionable. None challenge the Department of
Education’s overall policy of providing students with an
introduction to the major world religions and none relate to
material students actually see in the classroom.
D. The District Court’s Decisions
The district court in a published opinion in 2017
dismissed all of Appellants’ claims, with the exception of the
Establishment clause claim relating to disparagement of
Hinduism. Cal. Parents for Equalization of Educ. Materials
v. Torlakson, 267 F. Supp. 3d 1218 (N.D. Cal. 2017). The
district court later, also in a published opinion, granted
summary judgment to the State Board on that claim. See Cal.
CAPEEM V. TORLAKSON 13
Parents for Equalization of Education Materials v.
Tolarkson, 370 F. Supp. 3d 1057, 1067–1083 (N.D. Cal.
2019).
In its first opinion dismissing most of CAPEEM’s claims,
including the Equal Protection claims, the district court
extensively examined our circuit’s leading case on Equal
Protection challenges to educational materials, Monteiro v.
Tempe Union School District, 158 F.3d 1022 (9th Cir. 1998).
In that case, Kathy Monteiro brought suit on behalf of her
daughter, and argued that the curriculum’s inclusion of
literary works containing racially derogatory terms, such as
The Adventures of Huckleberry Finn and A Rose For Emily,
violated their Equal Protection rights. Id. at 1024–25. Our
opinion in Monteiro held that objections to curriculum
assignments cannot form the basis of a viable Equal
Protection claim, because curriculum decisions must remain
the province of school authorities. Absent an allegation of an
underlying racist policy, plaintiffs cannot challenge “the
assignment of material deemed to have educational value by
school authorities.” Id. 1031–32.
We explained that permitting such Equal Protection
challenges would infringe on other students’ First
Amendment interests in reading the contested materials. Id.
at 1028. We saw the role of the school district in selecting
curricula to be equally important. Permitting such challenges
would “significantly interfere with the [school district]’s
discretion to determine the composition of its curriculum.”
Id. at 1029. We observed that the desire to avoid such
lawsuits could “lead many school districts to ‘buy their
peace’ by avoiding the books or other materials that express
messages . . . that could be argued to cause harm to a group
of students.” Id. In other words, permitting Equal Protection
14 CAPEEM V. TORLAKSON
claims seeking removal of works from curriculum would
have a significant chilling effect on the types of materials
assigned by our public schools. Id. This would, in turn,
damage the quality of public education offered to students.
“[T]he function of . . . education itself is to stimulate thought,
to explore ideas, to engender intellectual exchanges. Bad
ideas should be countered with good ones, not banned by the
courts.” Id. at 1032. We therefore held that the Equal
Protection clause is not a vehicle for challenging curriculum
content choices.
The district court in this case concluded that the reasoning
of Monteiro with respect to curricula applied equally to the
materials challenged here that provide the general outlines for
curriculum content. Following Monteiro, the district court
ruled that Appellants’ objections to the content of the
Standards and Framework did not state a plausible Equal
Protection claim. Cal. Parents for Equalization of Educ.
Materials, 267 F. Supp. 3d at 1232; see also Noonan, 600 F.
Supp. 2d at 1111 (holding that CAPEEM’s challenges to
public school text books were barred by Monteiro). The
court also concluded that Appellants’ indirect challenge to the
content, through allegations of differential treatment in the
Framework adoption process, was necessarily barred. Cal.
Parents for Equalization of Educ. Materials, 267 F. Supp. 3d
at 1234–35. Those allegations faulted the State Board’s
rejection of Appellants’ proposed amendments to the
Framework during the comment process, and acceptance of
suggested edits of another group Appellants deemed hostile
to Hinduism. The district court reasoned that it would render
our decision in Monteiro meaningless if plaintiffs could make
out an Equal Protection claim when a state official refuses to
adopt plaintiffs’ content preferences during the comment
process. Id. Constitutional challenges to the content of
CAPEEM V. TORLAKSON 15
curricula on religious grounds must be adjudicated under the
religion clauses of the First Amendment, not Equal
Protection. Id. at 1235.
The district court also ruled that Appellants had failed to
allege a plausible Free Exercise claim, because our case law
requires Appellants to allege a substantial burden on their
religious practice or exercise. Id. at 1226–27 (citing and
discussing Am. Fam. Ass’n Inc. v. City & Cnty. of S.F.,
277 F.3d 1114, 1123–24 (9th Cir. 2002)). In American
Family, we rejected the argument that the Supreme Court had
eliminated the need for plaintiffs to allege a substantial
burden on their religious exercise where, as here, no law or
other regulatory government conduct is involved. Am. Fam.
Ass’n Inc., 277 F.3d at 1123–24. Dismissal of the complaint
in American Family was appropriate because “the complaint
did not . . . allege any specific religious conduct that was
affected by the Defendants’ actions.” Id. Finding no such
allegation in this case, the district court dismissed Appellants’
Free Exercise clause claims. Cal. Parents for Equalization of
Educ. Materials, 267 F. Supp. 3d at 1227.
The district court additionally held that under our decision
in Fields v. Palmdale School District, 427 F.3d 1197 (9th Cir.
2005), it was required to dismiss Plaintiffs’ substantive due
process claims. Cal. Parents for Equalization of Educ.
Materials, 267 F. Supp. 3d at 1224. In Fields, we explained
that, under cases going back to Meyer v. Nebraska, 262 U.S.
390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510(1925), once parents select a school for their child, parents
cannot “compel public schools to follow their own
idiosyncratic views as to what information the schools may
dispense.” Fields, 427 F.3d at 1206. Parents have only a
limited substantive due process right “to be free from state
16 CAPEEM V. TORLAKSON
interference with their choice of the educational forum itself.”
Fields, 427 F.3d at 1197, 1207. The district court concluded
that the parents did not allege they were unable to send their
children to the school of the parents’ choosing, and therefore
did not state a plausible substantive due process claim. Cal.
Parents for Equalization of Educ. Materials, 267 F. Supp. 3d
at 1224–25.
The district court dismissed one of Appellants’
Establishment clause claims, concluding that an objective
reading of the curriculum materials revealed no
unconstitutional endorsement of Christianity, Judaism, or
Islam. Id. at 1228. The materials permissibly called for
students to learn about the major events and figures of various
world religions. The district court did not, at the same time,
dismiss Appellants’ other Establishment clause claim, that the
curriculum materials had the primary effect of disparaging
Hinduism, but later ruled against Appellants on that claim at
summary judgment. See Cal. Parents for Equalization of
Educ. Materials, 370 F. Supp. 3d at 1067–1083.
In that later opinion, the district court concluded that
neither the allegations of the complaint, nor any additional
materials adduced on summary judgment, reflected content
that disparaged Hinduism. First, the district court explained
that, contrary to Appellants’ contentions, the Standards and
Framework do in fact describe the divine origins of Hinduism
and the divine significance of the Bhagavad Gita and other
sacred texts. Id. at 1070. Although Appellants had asserted
that the Standards and Framework promote an outdated
theory that Hinduism was the result of an Aryan invasion, the
district court explained that the Standards and Framework,
read together, refer to a migration of people speaking Indic
languages southward into the region. Id. at 1074–75. The
CAPEEM V. TORLAKSON 17
materials also acknowledge a competing theory that the
language spread northward. Neither theory suggests a
connection between invasions and the development of
Hinduism. Id. at 1075. The theories refer to historical
events. As the district court summed it up, “[w]hether or not
there was an influx of Aryans into South Asia in 1500 BCE
is appropriately the subject of a history and social science
curriculum, and not actually a positive or negative statement
about Hinduism.” Id.
The district court also dealt specifically with Appellants’
argument that the material contains a description of the caste
system as a Hindu religious belief and that the description has
the primary effect of disparaging Hinduism. Id. at 1071–73.
The court pointed out that the Framework expressly
acknowledges that all early civilizations had social class
systems. The Hindu religion was thus not singled out for
criticism of its caste or class system. The district court, after
examining the Standards and Framework, concluded that an
objective, reasonable observer would not conclude that the
materials have the primary effect of disparaging Hinduism.
Id. at 1079.
At summary judgment, Appellants offered an expert
report to explain the significance of certain terms from the
perspective of an academic religious scholar. The district
court declined to consider the expert report. Id. at 1070 n.8.
The court explained that the report was not relevant to the
court’s analysis of the critical issue. Id. The question was
whether the materials primarily communicate a message of
disparagement from the perspective of a reasonable observer,
and not from the perspective of an expert. The court cited
Brown v. Woodland Joint School District, where we held that
18 CAPEEM V. TORLAKSON
expert testimony was irrelevant to the effect of challenged
material on a child. Id.
II. CONTENTIONS ON APPEAL
A. Equal Protection
The district court held that because Appellants’ Equal
Protection claim was based on objections to course content,
it was “squarely foreclosed” by Monteiro’s holding such
challenges are barred. Cal. Parents for Equalization of Educ.
Materials, 267 F. Supp. 3d at 1232. Appellants argue that
Monteiro does not control because they allege a
discriminatory policy exempted from Monteiro’s holding.
There is no such allegation.
Appellants’ brief recites the allegations of the complaint
that the Standards and Framework discriminate against
Hinduism by treating it less favorably than other religions.
The allegations contain no reference to State Board policy,
nor do the allegations describe any materials used in the
classroom from which such a policy could be inferred. As the
district court emphasized, the Standards and Framework are
never seen by the students. See Cal. Parents for Equalization
of Educ. Materials, 267 F. Supp. 3d at 1222 (“Notably,
students do not read either the Standards or the
Framework.”). The district court correctly characterized
Appellants’ claims as an indirect attack on curricula.
Plaintiffs are the parents of students, and the underlying harm
Appellants are complaining of is alleged discrimination in the
educational materials the students receive. Yet Monteiro
holds that, at least absent evidence of unlawful intentional
discrimination, parents are not entitled to bring Equal
Protection claims challenging curriculum content. Monteiro,
CAPEEM V. TORLAKSON 19
158 F.3d at 1031–32. Monteiro thus bars Appellants’
principal Equal Protection claim. See id.; see also Noonan,
600 F. Supp. 2d at 1111.
Appellants separately challenge the process leading up to
the adoption of the Framework as discriminatory against
Hindus. Again, no discriminatory policy is described or
articulated, only examples of what Appellants assert to be
discriminatory treatment in the development of the content of
the Framework. Appellants’ claim is that the State Board
failed to incorporate their requested edits, and solicited and
accepted some suggestions from a group of historical scholars
that they regard as hostile to Hinduism. We agree with the
State Board that Appellants may not like the edits made to the
Framework, but that a dislike of challenged content does not
constitute a constitutional violation of Equal Protection,
absent a plausible allegation of discriminatory policy or
intent. See Thornton v. City of St. Helens, 425 F.3d 1158,
1166–67 (9th Cir. 2005); Monteiro, 158 F.3d at 1026(explaining that, to plead a successful Equal Protection claim,
plaintiffs must “plead intentional unlawful discrimination or
allege facts that are at least susceptible of an inference of
discriminatory intent.”). We therefore conclude that the
district court properly dismissed both Equal Protection
claims.
B. Free Exercise
The district court also dismissed Appellants’ Free
Exercise clause claim because the court found Appellants
failed to allege any burden on their religious exercise or
practice. Appellants do not challenge that conclusion here.
Pleading such a burden is required by our decisions in
American Family Association, 277 F.3d at 1124 and Vernon
20 CAPEEM V. TORLAKSON
v. City of Los Angeles, 27 F.3d 1385, 1393 (9th Cir. 1994).
Appellants’ only argument is that the district court failed
adequately to take into account three recent Supreme Court
decisions, and that these decisions have eliminated the
requirement that plaintiffs plead a burden on their religious
exercise.
The three recent Supreme Court cases are Trinity
Lutheran Church v. Comer, 137 S.Ct. 2012 (2017),
Masterpiece Cakeshop v. Colorado Civil Rights Commission,
138 S.Ct. 1719 (2018), and Espinoza v. Montana Department
of Revenue, 140 S.Ct. 2246, 2252 (2020). Trinity Lutheran
and Espinoza both involved state programs that excluded
religious entities. See Trinity Lutheran, 137 S.Ct. at 2017;
Espinoza, 140 S.Ct. at 2252. Trinity Lutheran concerned
exclusion of religious institutions from a state program
providing assistance to schools. 137 S.Ct. at 2017. Espinoza
dealt with a program granting tax credits for contributions to
schools, but exempted contributions to religious schools.
140 S.Ct. at 2252. In both cases, the Supreme Court held that
the exclusion of religious institutions from the programs
violated the First Amendment’s Free Exercise clause. The
Court ruled that the exclusion of religious institutions from
beneficial programs amounted to a financial penalty, and that
the Free Exercise clause prohibits such “indirect coercion or
penalties on the free exercise of religion.” Trinity Lutheran,
137 S.Ct. at 2022; Espinoza, 140 S.Ct. at 2256.
Although the district court did not have the opportunity to
analyze these cases in its opinion dismissing Appellants’ Free
Exercise clause claims, these cases do not alter the district
court’s analysis in this case. We are not dealing with a state
program that provides financial or other similar benefits. The
state has not carved out any exclusion for religious education
CAPEEM V. TORLAKSON 21
in the curriculum materials. Appellants allege no penalty or
coerced conduct. As the district court said, Appellants failed
to allege “any specific religious conduct that was affected by
the Defendants’ actions.” Cal. Parents for Equalization of
Educ. Materials, 267 F. Supp. 3d at 1226 (citing and quoting
Am. Fam. Ass’n, 277 F.3d at 1124). The complaint has not
alleged interference with Appellants’ exercise of their
religion under our Constitution as required for a viable Free
Exercise claim under Trinity Lutheran and Espinoza.
In the third recent case that Appellants cite, Masterpiece
Cakeshop, the Supreme Court dealt with overt expressions of
hostility on the part of officials adjudicating claims under a
state’s civil rights law. 138 S.Ct. at 1729–31. One official
expressed deep and open skepticism as to whether the
claimants’ religious beliefs were sincerely held. Id. at 1729(“Freedom of religion . . . has been used to justify all kinds of
discrimination throughout history, whether it be slavery,
whether it be the holocaust. . . it is one of the most despicable
pieces of rhetoric that people can use to—to use their religion
to hurt others.”). The Court there held that such an
expression of “clear and impermissible hostility toward the
sincere religious beliefs that motivated his objection”
interfered with the claimant’s Free Exercise rights during that
adjudicatory process. Id. at 1729. We have no expressions
of hostility here.
Appellants allegations suggest at most that portions of the
Standards and Framework contain material Appellants find
offensive to their religious beliefs. As the district court said,
“[a]t its core, Plaintiffs’ Free Exercise clause argument seems
to be that the public school curriculum conflicts with their
religious beliefs.” Cal. Parents for Equalization of Educ.
Materials, 267 F. Supp. 3d at 1226. Offensive content that
22 CAPEEM V. TORLAKSON
does not penalize, interfere with, or otherwise burden
religious exercise does not violate Free Exercise rights. See
Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1533–34
(9th Cir. 1985); see also id. at 1543 (Canby, J., concurring)
(“[G]overnmental actions that merely offend . . . religious
beliefs do not on that account violate free exercise”; an
“actual burden on the profession or exercise of religion is
required.”).
C. Substantive Due Process
The Fourteenth Amendment guarantee of due process has
a substantive component that includes a parent’s right to
make decisions regarding the “care, custody and control of
their children.” Troxel v. Granville, 530 U.S. 57, 69 (2000).
Appellants recognize, however, that with respect to
education, parents have the right to choose the educational
forum, but not what takes place inside the school. As we said
in Fields, the substantive due process right “does not extend
beyond the threshold of the school door.” 427 F.3d at 1207.
Parents therefore do not have a due process right to interfere
with the curriculum, discipline, hours of instruction, or the
nature of any other curricular or extracurricular activities.
We reiterated this principle recently in McNeil v. Sherwood
Sch. Dist. 88J, 918 F.3d 700 (9th Cir. 2019) (per curiam).
We there repeated our statement in Fields that once the
choice of school is made, parental rights are “substantially
diminished.” Id. at 711 (citing and quoting Fields, 427 F.3d
at 1206).
In this appeal, Appellants argue that by recognizing a
“diminished” substantive due process right in McNeil and
Fields, we somehow, and without saying so, preserved their
ability to raise religious objections to the Standards and
CAPEEM V. TORLAKSON 23
Framework. Citing a law review article, Appellants observe
that the Supreme Court has used the due process clause to
“further equality concerns . . . relating to . . . religious
minorities.” Kenji Yoshino, The New Equal Protection,
124 Harv. L. Rev. 747, 749–50 (2011). They rely on this
backdrop to support their argument for a broad due process
right to challenge materials that they view as religiously
bigoted. McNeil represents a refutation of Appellants’
position. In McNeil, the parents complained about their
child’s expulsion for creating a hit list. 918 F.3d at 704.
There, we said that once parents select a school, they “accept[
] [that school’s] curriculum, school policies, and reasonable
disciplinary measures.” Id. at 711. Our law has recognized
no exceptions.
D. Establishment Clause
Appellants argue that the district court mishandled their
Establishment clause claims in several respects. Without
directly responding to the district court’s careful refutation of
their characterizations of the Standards and Framework,
Appellants argue that an objective reading of those materials
reveals an impermissible endorsement of Judaism,
Christianity, and Islam and that the court incorrectly granted
the State Board summary judgment on Appellants’ claim that
those materials disparage Hinduism. They also argue that the
district court should not have excluded their expert report
produced at summary judgment. We address each of these
arguments in turn.
Before addressing the merits of Appellants’ Establishment
clause claims, however, we first address the evidentiary
argument they raise. At summary judgment, Appellants
produced an expert report in support of their claim that the
24 CAPEEM V. TORLAKSON
Standards and Framework have the primary effect of
disparaging Hinduism. That expert report concluded that the
1998 Standards contained outdated, offensive, and
disparaging information about Hinduism. Appellants now
argue that the district court improperly excluded that report
because, without it, the offensiveness of certain terms is not
obvious by reading the text of the Standards and Framework
alone.
But that absence of facially apparent disparagement is the
reason why the district court excluded the expert report from
its consideration, and also why Appellants’ claim that the
Standards and Framework primarily communicate a message
of disapproval of Hinduism fails. An expert’s understanding
of the terms is irrelevant. We must evaluate the Standards
and Framework from the perspective of an objective,
reasonable observer, and not that of an academic who is an
expert in the field. See e.g. Lee v. Weisman, 505 U.S. 577,
593 (1992); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d
1007, 1037–38 (9th Cir. 2010); see also Brown, 27 F.3d at
1382 (agreeing with that district court that the expert opinion
was not relevant to primary effect test). We therefore cannot
conclude that the district court abused its discretion by
refusing to consider Appellants’ expert report in its analysis.
See id; Noonan, 600 F. Supp. 2d at 1118 (rejecting “various
expert opinions” offered by both parties).
Turning now to the merits of Appellants’ Establishment
clause claims, we conclude, as did the district court, that the
Standards and Framework do not call for the teaching of
biblical events or figures as historical fact, thereby implicitly
endorsing Judaism, Christianity, and Islam. The materials do
not take a position on the historical accuracy of the stories or
figures, and the Supreme Court has told us that mere
CAPEEM V. TORLAKSON 25
inclusion of passages from the Bible in course materials does
not violate the Constitution. See Grove, 753 F.2d at 1539–40
(1985) (Canby, J. concurring) (citing Abington Sch. Dist. v.
Schempp, 374 U.S. 203, 225 (1963)).
We also conclude, as did the district court, that none of
Appellants’ characterizations of the Hinduism materials as
disparaging is supported by an objective reading of those
materials. The Framework acknowledges the divine origins
of Hinduism, and describes how these sacred beliefs were
written down in texts like the Bhagavad Gita. See Cal.
Parents for Equalization of Educ. Materials, 370 F. Supp. 3d
at 1071. The Standards and Framework reference an
invasion, but do not call for teaching students that an invasion
from the north caused the development of Hinduism in
ancient India. From an objective perspective, none of the
challenged material, alone or considered together, has the
effect of disparaging Hinduism.
We do not doubt the sincerity of Appellants’ challenge to
the Standards and Framework. The courts are called upon to
view the passages objectively and from the perspective of the
reasonable person. See Brown, 27 F.3d at 1378–79. As the
district court noted, an “objective, reasonable observer would
find much of the challenged material entirely
unobjectionable.” Cal. Parents for Equalization of Educ.
Materials, 370 F. Supp. 3d at 1079. But even if isolated
passages could be read as implying some hostility toward
religion—which they do not—they would not violate the
Establishment clause unless that were the “principal or
primary effect.” C.F. v. Capistrano Unified Sch. Dist.,
654 F.3d 975, 985–86 (9th Cir. 2011) (citing Am. Fam. Ass’n,
277 F.3d at 1121). The Standards and Framework reflect
26 CAPEEM V. TORLAKSON
careful crafting by the State Board to achieve a balanced
portrayal of different world religions.
III. CONCLUSION
The district court ably sorted through Appellants’
allegations in this case to describe the deficiencies of their
arguments in light of contemporary constitutional principles.
We agree with the district court that the challenged content of
the Standards and Framework, and process leading up to the
Framework’s adoption, did not disparage or otherwise
express hostility to Hinduism in violation of the Constitution.
AFFIRMED.
BRESS, Circuit Judge, concurring:
The majority opinion correctly holds that there is no basis
in this record to conclude that the defendants discriminated
against Hinduism, expressed a hostility toward it, or burdened
the practice of that religion. The majority opinion also
properly rejects the plaintiffs’ Establishment Clause
challenge. The Establishment Clause certainly does not
prevent California from educating students about world
religions and their role in human civilizations. See, e.g.,
Lynch v. Donnelly, 465 U.S. 668, 679–80 (1984). Plaintiffs’
efforts to wring an Establishment Clause violation from
subtle differences that they perceive in the curricular
treatment of various religions does not withstand scrutiny,
and, if accepted, would paralyze educators in their lawful
objective of treating religion as a topic relevant to world
history.
CAPEEM V. TORLAKSON 27
I note that some portions of the majority opinion
discussing plaintiffs’ Establishment Clause claim draw upon
Ninth Circuit precedent that is based on Lemon v. Kurtzman,
403 U.S. 602 (1971). The list of situations in which the
Supreme Court has effectively repudiated the Lemon test,
either by “expressly declin[ing] to apply the test or [] simply
ignor[ing] it,” has grown quite long. American Legion v.
American Humanist Ass’n, 139 S. Ct. 2067, 2080 (2019)
(plurality op.). But to my understanding, the circuit precedent
on which the majority opinion relies remains binding on this
panel in this case. Regardless, whether under a Lemon-based
test or an Establishment Clause analysis more appropriately
grounded in the history and traditions of this country, id.at 2089–90; id. at 2092–94 (Kavanaugh, J., concurring); id.
at 2096 (Thomas, J., concurring in the judgment), there was
no establishment of religion here.