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print versionCAPEEM Loses its Constitutional Challenges to CA Textbook Contents
Judge Rules only a Process-related Claim as “Triable.â€
SBE Settles the Claim Out of Court.
by Raju Rajagopal (with Legal Analysis by Girish Agrawal)
“…plaintiff [CAPEEM] offers no authority whatsoever in support of its bald assertion that it can satisfy the germaneness requirement for this claim…Such self-serving statements…are insufficient to meet plaintiff’s burden...CAPEEM’s allegations regarding the indoctrination by the textbooks [into Christian and Jewish religions]… represents a mere ‘generalized grievance’ that any citizen might attempt to litigate simply because he or she takes offense at the textbooks.â€
— Frank C. Damrell, Jr, US District Judge, from his Feb 25, 2009 ruling
“…in a 63-page order on cross motions for summary judgment, Damrell gutted the suit, leaving only CAPEEM’s claim that the textbook-adoption process violated the Constitution’s equal-protection guarantee.
“But the judge threw out CAPEEM’s claim based on the establishment clause, which requires government neutrality toward religion, as well as its free speech and association clause claims.â€
— Sacramento Bee, June 20, 2009
After more than three years of legal battles, the California sixth-grade History-Social Sciences textbook controversy has finally been put to bed with the conclusion of a lawsuit by California Parents for the Equalization of Educational Materials (CAPEEM) against members of the State Board of Education (SBE). The former had made broad claims that the textbook contents and the adoption process violated the US Constitution’s Establishment Clause. CAPEEM had also claimed that the SBE had violated its members’ equal protection as well as free speech and association rights.
The Federal District Court threw out all of CAPEEM’s claims with respect to the Establishment Clause as well as free-speech and association claims, but let stand for trial only a portion of the equal protection claim related to process (See synopsis of the Feb 25, 2009 ruling below; see http://www.sacw.net/article713.html for the full ruling.)
There are reports that the SBE has since settled out-of-court with CAPEEM on the one remaining claim, similar to the way it did with the Hindu American Foundation (HAF) in 2006/2007, after the latter had lost all of its substantive challenges to textbook contents.
(see http://raju-rajagopal.sulekha.com/blog/post/2006/09/hindutva-history-defeated-in-california.htm)
Supporters of CAPEEM will no doubt go to town with their settlement as a major victory, despite the fact that all of its objectives in going to trial in the first place were soundly defeated. To quote its own attorney, Venkat Balasubramani, when asked by a reporter if it was true that his client gained nothing: “That’s one way of looking at it.â€
As I have written extensively in my Sulekha blogs, it is not that the California school textbooks were beyond reproach. There were indeed a few insensitive passages in the originally proposed texts; and, like textbooks anywhere in the world, there is always room for improvement. However, RSS/VHP-linked groups in California deliberately and repeatedly hyped those few isolated passages — even after textbook publishers had agreed to delete them — to stir up parents and to propagate the notion that the textbooks were blatantly ‘anti-Hindu.’ Just in case parents and students did not see anything terribly wrong with the books, the groups had sent this provocative letter to ‘guide’ them on how they ought to think:
“Dear Hindu Youth: …These books also focus on negative things and sometimes highlight things that your non-Hindu classmates may find strange or unusual, while the same is not true for the way in which other religious traditions are discussed in these same books. . .Please write a few paragraphs on the topic: ‘Growing Up Hindu in America.’ Here are some of the points that you may like to include in your write-up . . .b. How did you feel after your unit on Hinduism? Were you proud of your heritage? Were you embarrassed? c. How did your classmates react to you after the unit on Hinduism was covered? What kind of questions were you asked? Did people treat you differently? Were you teased?
— Sincerely, Your Friends at The Vedic Foundation and the Hindu Education Foundation.â€
Fortunately, diligent judges in both the HAF and CAPEEM lawsuits took enormous pains to understand the complex issues at hand and threw out all their content claims, giving them credit only to the extent that SBE had not kept its process updated in compliance with the latest laws (since done). As the Federal Judge noted, “CAPEEM’s isolated passages taken out of context do not support the Establishment Clause Claim.â€
For those who opposed the initial carte blanche given by the SBE’s Curriculum Commission to RSS/VHP-linked groups, the worst part of this sad episode has been the vicious manner in which these groups attacked anyone who seemed to stand in the way of their enterprise. As I wrote earlier:
“In a sad commentary on the community, Hindutva supporters have been orchestrating a vicious smear campaign against those who disagree with them, and have resorted to a variety of intimidation tactics, such as harassment at work by calling up employers, threatening phone calls, anonymous e-mails, and even death threats57. Those who claim to be the vanguard of fighting stereotyping on our behalf, can barely disguise their pleasure in hurling malevolent labels like ‘Hindu traitors,’ ‘Hindu-baiter,’ ‘Stalin-Bin Laden combine,’ etc. at their opponents.â€
Leading the charge in California was RSS pracharak Karthik Venkataramani (aka Kalavai Venkat?), who was initially part of the Hindu Education Foundation (HEF) and was later a key member of CAPEEM. Given his own track record of harassing and demonizing opponents, it is laughable that he would offer serious testimony that his wife was concerned over him being demonized for his participation in the textbook adoption process! As the judge reacted, rather politely: “Said testimony is insufficient to raise a triable issue…First, the testimony is inadmissible hearsay…Even were the court to consider the evidence, the testimony does not establish that Mr. Venkatramani was ‘demonized’ due to any affiliation with Hindutva or Hindu nationalist groups…This testimony is simply irrelevant to this claim.â€
I am glad that SBE’s settlement with CAPEEM does not represent a substantial sum, which means less money in the coffers of Hindutva groups, who are sure to continue their relentless campaign in the Diaspora to accomplish through school textbooks what they have failed to accomplish in India.
I find it deeply offensive as an Indian and as a Hindu that groups with affiliations with RSS/VHP, who sneer at the very concept of minority rights enshrined in India’s Constitution, and who had lost no opportunity to introduce highly provocative and discriminatory language in the school textbooks there, sought to take shelter in the US Constitution and California’s minority-friendly curriculum to cry foul here. I hope that the defeat of CAPEEM (and previously of HAF) in their challenges to textbook contents will serve as a wake-up call to parents to not associate with the communal ideology of RSS/VHP/BJP – which has once again been soundly rebuffed by a majority of Indian (and Hindu) voters — and to establish more non-partisan and scholarly community groups to bring balanced and informative narratives of Indian history and Hinduism. And I hope that parents will use the same set of standards in judging the coverage of minorities in Indian textbooks and will speak out against their use by politicians to further divisive political/communal agendas.
THE FINAL OUTCOME OF THE CAPEEM LAWSUIT
(Paraphrased from a detailed analysis of the Federal District Court ruling by Girish Agrawal)
Claim 1: Violation of Equal Protection Rights because of textbooks contents.
The judge dismissed the claim. CAPEEM LOST.
CAPEEM had alleged that the adopted textbooks’ content violates the Equal Protection Clause because the textbooks are “discriminatory against Hindus and will result in psychological harm and lost educational opportunities for Hindu students.â€
The judge ruled that CAPEEM cannot dictate the contents of textbooks “because the State has the discretion to determine the content of its curriculum.†He cited a well-known 1998 case (Montiero v. Temple Union High Sch. Dist.) in which higher courts had concluded that the “Equal Protection Clause will not support a challenge to the curriculum even where its contents are allegedly discriminatory.â€
Claim 2: Violation of Equal Protection Rights because of the adoption process.
The judge ruled that the “facts sufficiently raise a triable issue…â€
SBE LOST ITS MOTION FOR SUMMARY JUDGMENT.
CAPEEM brought this equal protection claim on the basis of alleged disparate treatment of its members in the adoption process. The court called this a “process claim,†and looked at it from three angles: (1) whether the SBE acted with discriminatory intent; (2) whether a similarly situated group was treated more favorably; and (3) whether CAPEEM’s members were treated differently in the process.
The judge denied SBE’s motion for summary judgment. (The summary judgment standard says that “all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party.†The effect of this very generous standard is that CAPEEM did not actually need to prove anything…all it had to do was produce some evidence to show that there are some disputed facts, which call for a trial.)
Claim 3: Violation of Free Speech and Association Clause – that is, a claim that SBE’s actions during the textbook adoption process chilled CAPEEM members’ free speech and association rights.
CAPEEM failed to offer any evidence to support their allegations. CAPEEM LOST.
CAPEEM claimed that “in rejecting HEF/VF edits solely because [SBE] believed CAPEEM members and other Hindu groups were affiliated with certain third-party ‘Hindu nationalists’ groups, [SBE] chilled the First Amendment free speech and association rights of CAPEEM’s members.â€
Here’s what the judge said: “In attempting to establish the existence of a factual dispute, [CAPEEM] 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. [CAPEEM] has not done so here…[CAPEEM] cites only the deposition testimony of CAPEEM member Karthik Venkataramni in support of this claim.â€
And what was this testimony that CAPEEM thought was so powerful that they presented it as their sole piece of evidence? A statement by Mr. Venkataramani that his wife was concerned that he would be “demonized†for his participation in the textbook adoption process!
The judge reacted, rather politely: “Said testimony is insufficient to raise a triable issue…First, the testimony is inadmissible hearsay…Even were the court to consider the evidence, the testimony does not establish that Mr. Venkatramani was ‘demonized’ due to any affiliation with Hindutva or Hindu nationalist groups…This testimony is simply irrelevant to this claim.â€
Claim 4: Violation of Establishment Clause, that is, a claim that the textbooks [and so the state] promoted other religions over Hinduism and that the primary effect of SBE’s actions was hostility towards Hinduism. [The Establishment Clause is from the First Amendment to the US Constitution: “Congress shall make no law respecting an establishment of religion … or prohibiting the free exercise thereof.†]
The judge denied CAPEEM’s motion and granted SBE’s motion. CAPEEM LOST.
CAPEEM had moved for summary judgment in its favor, while the SBE had countered by asking for dismissal on the grounds that CAPEEM did not have standing to bring an Establishment Clause claim. Judge Damrell agreed with SBE: “In contrast to its stated organizational purpose and the self-identified purpose of the lawsuit, CAPEEM’s motion focuses on claims of Christian and Jewish indoctrination. Such claims are not germane to its stated purpose of promoting accurate portrayal of Hinduism…â€
The court ruled that CAPEEM “lacks standing to adjudicate issues regarding the textbooks’ portrayal of religions other than Hinduism.â€
The judge cited a precedent, “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.†And he added, “At the bottom, by this claim, CAPEEM seeks to act as a ‘curriculum review committee;’ however such a role…is misplaced because SBE is the appropriate body to determine the contents of the textbooks.â€
The judge noted that even if the court accepted CAPEEM’s position that “the texts, in part, inaccurately and negatively depict Hinduism while simultaneously providing a more favorable depiction of Abrahamic religions,†they still could not be said to convey a message of government endorsement or disapproval of a particular religion when viewed as a whole and as part of the overall curriculum. “The books at issue are history-social sciences textbooks—which are part of a clearly, nonreligious history-social sciences program.â€
He further noted that no reasonable sixth grade student using the textbooks in question texts would believe that the books convey a message that the State [of California] approves of a particular religion or specifically disapproves of Hinduism. He provided a few examples:
“For instance, CAPEEM objects to the OUP’s [Oxford University Press] portrayal of Hindu women, but the specific section it complains of is a direct quote from a Hindu text, the Code of Manu. The OUP textbook goes on to sensitize the quote by explaining that women were more independent than what the Code says …. 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.â€
“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.’ 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: ‘[I]deas about skin color were probably part of it ….’ Moreover, the textbooks refer to the ‘Aryans’ developing the caste system, not Hindus.â€
As a basis for his ruling, the judge also noted that teaching many social sciences requires mentioning religions, and it is a well-established principle in US law that decisions about how religion is used “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 we are not.â€
In essence, the judge said that while teaching religion or forcing children to participate in religious ceremonies or activities will most likely constitute violation of the Establishment Clause, there is no violation when teaching about religion is incorporated into a larger secular curriculum as in this case:
“In sum, CAPEEM’s isolated passages taken out of context do not support the 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 religious primer.â€
Case Law: The controlling law here is Monteiro v. Tempe Union High School District, a Ninth Circuit case decided in 1998. In Monteiro, a parent, Kathy Monteiro, sued the Tempe, Arizona, school district because the required reading for her daughter’s freshman English class included Mark Twain’s “The Adventures of Huckleberry Finn,†and a short story by William Faulkner, both of which contained repeated use of what Ms. Monteiro called “the profane, insulting and racially derogatory term `nigger.’†She also alleged that neither work was necessary for a freshman English class and that “none of the assignments in the curriculum refers to Caucasians in a derogatory manner.†The ruling, signed by Judge Reinhardt, one of the most progressive and liberal judges on the Ninth Circuit Court of Appeals, dismissed the case noting that if school districts started bowing to the sensitivities of every offended parent and modifying their curriculum per their demands, there would be a chilling effect on education.
For a full copy of the February 25, 2009 Federal District Court ruling see:
