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From time to time, we here at FAN post op-eds on various timely issues. One such issue is who decides what is taught in public schools and what are the applicable constitutional restraints placed on attempts to restrict teachers’ educational objectives. A recent court ruling in Concerned Jewish Parents & Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, et al. (Cen. Dist., Nov. 30, 2024) places this issue in bold relief. 

In the piece below, Stephen Rohde, a First Amendment authority, analyzes the case and the First Amendment issues raised in it. 

News items and the Supreme Court’s docket follow the op-ed. – rklc

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An important recent court ruling rejected attempts by Jewish parents and teachers in the Los Angeles Unified School District to remove an ethnic studies curriculum they labelled “anti-Semitic” and “anti-Zionist.” On Nov. 30, 2024, a federal judge reaffirmed that a system of education “which discovers truth out of a multitude of tongues” must allow teachers and their students “to explore difficult and conflicting ideas.” 

In his 49-page ruling, U.S. District Judge Fernando M. Olguin wrote: “[W]e must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.” Moreover, he stressed that “teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority,” but they “must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities” (citing C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist. (9th. Cir., 2019)).

An international controversy

The lawsuit (filed by Lori Lowenthal Marcus and Robert Patrick Sticht) came in the midst of a national — and indeed international — debate surrounding who controls the telling of the complicated history of Israel and the Palestinians and how criticism of Israel and its policies is being attacked with epithets such as “anti-Semitism” and “anti-Zionism.” It was an unprecedented attempt to convince a federal court to force the second largest public school system in the United States to adopt a single, one-sided interpretation of the hotly-contested political, religious, legal, military, and cultural histories of Judaism (spanning thousands of years), Zionism (which emerged in the late nineteenth century), and the State of Israel (founded in 1948). And all of this has been marked throughout the years by an endless variety of shifting perspectives by Jews and non-Jews alike.

Not incidentally, the ruling also represents a welcome rebuke to the efforts of Republican state legislators and conservative parent groups to restrict the teaching of comprehensive American and world history in public schools. This campaign includes attempts to ban books that examine racism, sexism, and LGBTQ issues as well as their efforts to eliminate programs that seek to ensure diversity, equity, and inclusion in American education.

The LAUSD lawsuit is part of a well-financed, well-resourced campaign in the United States and around the world to impose an official, dogmatic pro-Israel narrative not only on Israel’s current war in Gaza and the West Bank, but on its entire 76-year history, and to silence any contrary or pro-Palestinian perspectives in the name of fighting “anti-Semitism.” 

Ominous nature of lawsuit

The ominous nature of the lawsuit can be seen in the breathtakingly overbroad injunction the plaintiffs had requested. Had it been granted, the injunction, as described in the plaintiffs’ own words, would have enlisted the powerful authority of a federal court to require the indoctrination of an entire school district, and all of its teachers and students, with false, misleading, highly-contested, and controversial claims, by prohibiting the following: 

[A]ny language, in any teaching materials, asserting that Zionism is not a Jewish belief; denouncing the Jewish belief in the land of Israel as the land promised by God to the Jewish people, or the Jewish belief in Zionism, or asserting that the State of Israel, as the Nation-State of the Jewish people, is illegitimate, or asserting as a fact that the Jewish State is guilty of committing such horrific crimes against others as ethnic cleansing, land theft, apartheid or genocide, or that the Jewish people are not indigenous to the land of Israel or to the Middle East, or denying the State of Israel the right to self-defense; and/or denying the historical or religious connection between the Jewish people and the land of Israel.

Had this handful of parents and teachers succeeded, more than 24,000 LAUSD teachers would have been forced by court order to teach more than 565,000 students the single dogma that Zionism, a movement that emerged a little over a hundred years ago, is “a Jewish belief,” when in fact there is a wide diversity of views among Jews on the issue of Zionism.

In addition, if the injunction had been granted, all LAUSD teachers would have been banned by law from teaching or debating, for example, the fact that in Feb. 2022 Amnesty International issued a comprehensive 280-page investigative report entitled “Israel’s Apartheid Against Palestinians: Cruel System of Domination and Crime Against Humanity.” As its title indicates, this report “analysed Israel’s intent to create and maintain a system of oppression and domination over Palestinians and examined its key components: territorial fragmentation; segregation and control; dispossession of land and property; and denial of economic and social rights.” The report then concluded that “Israel imposes a system of oppression and domination against Palestinians across all areas under its control: in Israel and the OPT [Occupied Palestinian Territory], and against Palestinian refugees, in order to benefit Jewish Israelis,” which “amounts to apartheid as prohibited in international law.”

And if the plaintiffs had had their way, all LAUSD teachers would have been breaking the law if they taught that on Jan. 26, 2024, the United Nations International Court of Justice issued a detailed ruling, which found it “plausible” that Israel has committed “acts of genocide” that violated the Genocide Convention and ordered Israel to ensure that the IDF not commit any of the acts of genocide prohibited by the convention.

And all those teachers would have been prohibited from teaching that on Nov. 21, 2024, the International Criminal Court issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Yoav Gallant, former Minister of Defence of Israel, accusing them of being “responsible for the war crimes of starvation as a method of warfare and of intentionally directing an attack against the civilian population; and the crimes against humanity of murder, persecution, and other inhumane acts from at least 8 October 2023 until at least 20 May 2024.”

The plaintiffs and their lawsuit

In May 2022 a group calling itself “Concerned Jewish Parents and Teachers of Los Angeles,” comprised of what the lawsuit called “Jewish, Zionist” teachers in the LAUSD and “Jewish, Zionist” parents of students in the LAUSD, sued the school district, the United Teachers of Los Angeles, its president Cecily Myart-Cruz, the Liberated Ethnic Studies Model Curriculum Consortium, the Consortium’s secretary Theresa Montaño, and Guadalupe Carrasco, its co-founder. The defendants were represented by Mark Kleiman.

As summarized by Judge Olguin, the plaintiffs claimed that the ethnic studies curriculum “denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]” and is designed “to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]” They claimed that the challenged curriculum “seeks to make it unsafe and ultimately impossible for any person to express Zionist ideas or Zionist commitment in public in general and within LAUSD public schools in particular.”

In addition to taking issue with the content of the challenged curriculum, the plaintiffs decried the individual defendants’ support for the challenged curriculum. According to the plaintiffs: “Defendants are injecting their views into the LAUSD curriculum” and “disseminating [the challenged curriculum] to teachers throughout Los Angeles” under the authority of the LAUSD, and “at times through stealth[.]” Plaintiffs also alleged that the defendants supported or participated in workshops that “led teachers to bring the [challenged curriculum] to their own classrooms.”

It is noteworthy that the plaintiffs did acknowledge that the LAUSD “has the right to control the content of all Ethnic Studies classes taught in LAUSD schools” and specifically admitted that the LAUSD “has ultimate control over and responsibility for the use and public disclosure of any teaching materials in Los Angeles public schools other than those materials whose use is directed by the California State Board of Education.”

The plaintiffs also conceded that the challenged curriculum had not been formally adopted by LAUSD, but nevertheless they claimed that they “are being harmed” and “will be harmed” by it. And they alleged that the challenged curriculum is being taught by at least two LAUSD teachers, one of whom is currently “using the LESMC including the discriminatory, hateful material on Israel at issue in this case.” Additionally, they alleged that defendant Cardona confirmed that “she is teaching from LESMC materials and would continue doing so in her LAUSD classroom.”

As for their legal claims, the plaintiffs alleged that the challenged curriculum is “discriminatory” and violates their rights under the Equal Protection Clauses of the U.S. Constitution and California Constitution, the Free Exercise Clause of the U.S. Constitution, Title VI of the Civil Rights Act, and California Education Code.

The court ruling

At the outset of his decision, Judge Olguin called the lawsuit “confusing” and noted that the complaint is “difficult to understand and contains a morass of largely irrelevant — and sometimes contradictory — allegations, few of which state with any degree of clarity precisely what plaintiffs believe defendants have done or, more importantly, how plaintiffs have been harmed.” He pointed out that the lack of clarity was particularly troubling given that this was the plaintiffs’ fourth attempt to allege a valid complaint.

The lack of standing issue

Addressing threshold procedural issues, Judge Olguin found that the plaintiffs did not have standing to bring the lawsuit in the first place and that their claims were not ripe for adjudication. He observed that the “essence of plaintiffs’ alleged injuries appears to be that they are aware of the challenged curriculum, disagree with it, and fear it will be adopted or used in LAUSD classrooms.” But he found “it is far from clear that learning about Israel and Palestine or encountering teaching materials with which one disagrees constitutes an injury, citing long-standing Supreme Court and appellate precedents.” And he found that neither the parent-plaintiffs nor the teacher-plaintiffs identified “any personal injury suffered by them as a consequence of the alleged constitutional error.” Plaintiffs may not “sue merely because their legal objection is accompanied by a strong moral, ideological, or policy objection to a [purported] government action.” In other words, “the individual plaintiffs’ potential exposure to ideas with which they disagree is insufficient to support standing.”

At its core, plaintiffs’ lawsuit sought to have the court “weigh in on whether instruction that may be critical of Zionism or Israel is antisemitic.” Judge Olguin recognized that courts do on occasion determine whether beliefs are religious in nature and whether they are sincerely held, but here, without a justiciable case or controversy that presented a cognizable, redressable injury, he could not — and would not — entertain “a generalized grievance.”

Throughout his decision, Judge Olguin relied heavily on the Ninth Circuit appellate decision in Monteiro v. Tempe Union School District (1998). In that case, a parent sued a school district, on behalf of her daughter and other Black students, over the high-school curriculum’s inclusion of certain literary works, such as The Adventures of Huckleberry Finn and A Rose for Emily. The plaintiff in that case argued that because these works contain racially derogatory terms, their inclusion in the curriculum violated the Black students’ rights under the Equal Protection Clause. The Ninth Circuit rejected this argument and 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.” 

In Monteiro, no underlying racist policy was found. Similarly, in the LAUSD case, Judge Olguin found that the plaintiffs “do not allege the existence of an underlying racist policy; instead, they challenge unspecified portions of a hypothetical curricular offering.” Although the plaintiffs asserted that they were targeting a curriculum “infected from top to bottom with racism and bias[,]” they did not direct the court to any allegations that supported their assertion. Nor were there any allegations to support an inference of a discriminatory policy. Thus, the lawsuit was a direct attack on curricula, and under Monteiro, “absent evidence of unlawful intentional discrimination, parents are not entitled to bring Equal Protection claims challenging curriculum content.”

Failure to raise a free exercise claim

Judge Olguin also found that the plaintiffs failed to allege a violation of their right to the free exercise of religion. According to the Supreme Court, “a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not neutral or generally applicable.” But the courts have also held that “offensive content” that “does not penalize, interfere with, or otherwise burden religious exercise does not violate Free Exercise rights,” even where such content contains material that plaintiffs may find “offensive to their religious beliefs.”

In the LAUSD case, the plaintiffs did not allege that they “have somehow been prevented from practicing their faith, or that the parent-plaintiffs have been barred in any way from instructing their children at home.” In effect, the only hardship plaintiffs alleged was that the existence of the challenged curriculum — and its possible adoption — offended them. “But mere offense is insufficient to allege a burden on religious exercise,” stated Judge Olguin, citing court decisions holding that class materials offensive to Hindu or Muslim plaintiffs did not violate Free Exercise Clause. As Chief Judge Pierce Lively put it in a 1987 case: “[D]istinctions must be drawn between those governmental actions that actually interfere with the exercise of religion, and those that merely require or result in exposure to attitudes and outlooks at odds with perspective prompted by religion.”

It is important to note that Judge Olguin could have simply found that the plaintiffs lacked standing to bring the lawsuit and dismissed it entirely. Instead, he went on to explain that even if the plaintiffs had established standing, they could not overcome the “significant First Amendment” obstacles their complaint presented. Because the non-LAUSD defendants are private parties, their speech and conduct are protected by the First Amendment. The court “cannot enjoin private parties from expressing their views on what an ethnic studies curriculum should or should not contain, let alone from using any ‘elements’ of the challenged curriculum, because doing so would violate the First Amendment.”

Three First Amendment issues

Judge Olguin then explained in detail the various First Amendment violations that the plaintiffs’ requests raised: 

First, plaintiffs “take issue with the non-District defendants’ forms of discussion, expression, and petitioning in relation to the challenged curriculum,” such as “various UTLA and Consortium activities, including funding, supporting, promoting, and hosting of workshops and events that discuss Palestine and Israel.” The plaintiffs sought to have the court impose restrictions on the non-District defendants’ protected speech by requesting an injunction “prohibiting all Defendants from using the elements of the LESMC at issue in this case . . . in any training sessions funded by public funds, or for which salary points are awarded by LAUSD. 

Judge Olguin made it clear, however, that “the non-District defendants have a right to express their views about the curriculum under the First Amendment and to petition for curricular changes.” And he went even further: “[E]ven if teaching the challenged curriculum were unlawful, and the non-District defendants encouraged the material to be taught, the non-District defendants’ activities would be protected, as plaintiffs have not alleged incitement to imminent lawlessness action.”

Second, the plaintiffs had relied on the seminal 1969 Supreme Court decision in Brandenburg v. Ohio, arguing that the court may “prevent a speaker from counseling the commission of imminent lawless action [by LAUSD] when such counseling is likely to incite or produce such action.” But Judge Olguin found there were “no plausible allegations” in the complaint “to support such an assertion.” And in any event, “the assertion conflicts with plaintiffs’ contention that they, for example, ‘do not claim that UTLA is acting wrongfully by petitioning the government to include the challenged materials in the classroom, or to discuss with others what the curriculum should be or whether the law should be changed to allow Defendants to teach what they want.” Indeed, according to plaintiffs, “[t]here is no claim that it is illegal for UTLA to speak to teachers about Ethnic Studies and there is no request that this Court order UTLA to stop doing so.” Nor is there any claim “that the law is violated by Defendants’ conduct of seminars showing teachers how to teach [the challenged curriculum], and no relief is sought from the Court asking anyone to stop conducting such seminars.”

Third, plaintiffs specifically targeted “classroom expression by public school teachers, on the clock and paid for with public money” and asked the court to enjoin LAUSD teachers from teaching the challenged curriculum.

Judge Olguin held that “this request raises serious concerns about the First Amendment and principles of academic freedom.” Although high school teachers do not have freedom of speech to the full extent of the First Amendment, nonetheless according to Monteiro, there is no doubt that “allowing the judicial system to process complaints that seek to enjoin or attach civil liability to a school district’s assignment of” curricular material could have broader, potentially chilling effects on speech. In other words, “while teachers’ speech rights in the classroom may be reasonably abridged by their employers, such limitations are fundamentally different than speech restrictions imposed by a court at the behest of a group of private citizens.” 

He added: “[S]tudents have a right to receive information and ‘lawsuits threatening to attach civil liability on the basis of the assignment of [curricular material] would severely restrict a student’s right to receive material that his school board or other educational authority determines to be of legitimate educational value,’” citing Monteiro.

Judge Olguin recognized that “determining the content of curricula is a complicated, important matter, and it is for this reason that school boards generally retain broad discretion in doing so.” He stressed that “teachers must have some discretion and academic freedom in implementing and teaching the curriculum,” because “teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.” He also warned that “it would be of great concern for the educational project and for academic freedom if every offended party could sue every time they did not like a curriculum or the way it was taught.”

Teaching provocative and challenging ideas is painful but necessary

Citing a 1949 Supreme Court decision that recognized that “[s]peech is often provocative and challenging,” Judge Olguin recognized that while the plaintiffs clearly considered the challenged curriculum to be “provocative and challenging,” nonetheless, “our legal tradition recognizes the importance of speech and other expressive activity even when — perhaps especially when — it is uncomfortable or inconvenient.”

Consequently, Judge Olguin dismissed all of plaintiffs’ claims with prejudice, preventing them from filing a fifth amended complaint.

No doubt the Jewish parents and teachers who brought this lawsuit were deeply concerned that their children and students would be exposed to sharply different and indeed highly negative perspectives about the State of Israel and the nature and history of Zionism — perspectives that conflict with what may have been taught at home. But when it comes to public education in America, no particular group of parents or teachers can restrict the curriculum designed for all students based on their personal views or because they are offended by some aspect of the curriculum.

“At their best, public schools in the United States serve to produce a literate and informed citizenry imbued not only with knowledge but with a spirit of inquiry,” according to Jonathan Friedman, Director of Free Expression and Education at PEN America. “Diversity of thought has been the core of our pluralistic identity, and free expression — one of the central tenets of American democracy — is an essential value that ensures both the quality of our children’s education and the ability of our schools to prepare them to become engaged citizens in an increasingly complex world.”

Friedman went on to explain that while there is no question that “parents have a central role in guiding, supporting, nurturing, and educating their children,” the so-called “parents’ rights” movement seeks to elevate “individual parents’ beliefs or preferences over the rights of all other parents.” He also noted that in many parts of the country, “individual parents are demanding the removal of books from schools they find unfavorable.” But in the United States, “it has been an abiding principle of our democracy to side with free speech over those who wish to restrict it. The freedom to learn, the freedom to read, and the freedom to think are inextricably bound.”

“Preventing students from learning about the real world won’t protect them from it,” Friedman pointed out. Students “don’t deserve a chilled environment where teachers are unable to speak honestly for fear of upsetting any one parent.”

Thirty-three years ago, the American Association of University Professors reiterated its long-held view that the “freedom of thought and expression” upon which education is based “often inspires vigorous debate on those social, economic, and political issues that arouse the strongest passions. In the process, views will be expressed that may seem to many wrong, distasteful, or offensive. Such is the nature of freedom to sift and winnow ideas.”

The AAUP reminded us that on “a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.”

The debate over Israel, Zionism, and the Palestinians, like all debates on serious issues, will not be resolved by convincing courts to mandate the views of one side or to silence the voices of the other side. The debate must be a free and open discussion informed by a rigorous and unflinching examination of history that respects the human rights and dignity of everyone.

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Sixth Circuit rules FCC lacked the authority to reinstate Net Neutrality rules

A federal appeals court struck down the Federal Communications Commission’s landmark net neutrality rules on Thursday, ending a nearly two-decade effort to regulate broadband internet providers as utilities.

The U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said the F.C.C. lacked the authority to reinstate rules that prevented broadband providers from slowing or blocking access to internet content. In its opinion, a three-judge panel pointed to a Supreme Court decision in June, known as Loper Bright, that overturned a 1984 legal precedent that gave deference to government agencies on regulations.

“Applying Loper Bright means we can end the F.C.C.’s vacillations,” the court ruled.

The court’s decision put an end to the Biden administration’s hallmark tech policy, which had drawn impassioned support from consumer groups and tech giants like Google and fierce protests from telecommunications giants like Comcast and AT&T.

Levine and Schafer on ‘central meaning of the First Amendment’

Last month, Carson Holloway argued in Law & Liberty’s forum on New York Times v. Sullivan that the Supreme Court “owes it to the nation” to reconsider and ultimately overrule this defining First Amendment case. He has made this argument in Law & Liberty before. He is mistaken.

Sullivan declared that the First Amendment has a “central meaning”: that citizens in a democracy have a right to criticize government officials without fear of ruin. The Court made this principle a reality by establishing the “actual malice” requirement. Before enforcing a damages judgment or sending a citizen to jail, courts going forward were to require clear and convincing proof that the alleged defamer of a public official published the defamatory statement knowing it was false or with a high degree of awareness of its probable falsity.

The rule has proven a potent protection for press freedom. But for Holloway, it is a modern invention that is not “based on the original understanding of the First Amendment.” We agree with Angel Eduardo that this argument is “at best . . . highly contested.” Having spent our careers defending press freedom (in the case of one of us, that includes two trips to the Supreme Court), we write to explain what exactly Holloway got wrong.

Initially, Holloway’s originalism argument is a red herring. The defamation tort is a creature of state law and the First Amendment at the Founding only imposed limits on the federal government. (It is noteworthy, though, that Madison viewed his unsuccessful amendment that would have prohibited state infringements on liberty of the press as more valuable than the First Amendment.) So it should be expected that there is no evidence that the Founding generation understood the First Amendment as a limit on state libel law. (Even so, Jefferson, perhaps anticipating the Sedition Act of 1798, thought the First Amendment ought to impose limits on libel.)

The TikTok case

• Josh Blackman, “The Unprecedented Dynamics of Trump’s TikTok Brief,” The Volokh Conspiracy (Dec. 29)
• Amy Howe, “TikTok, Biden, Trump present arguments over app ban to justices,” SCOTUSblog (Dec. 28)
• Rebecca Morin, “Can Trump save TikTok? The ‘Art of the Deal’ President wants to try,” USA Today (Dec. 28) (Trump amicus brief here)
• “FIRE to SCOTUS: TikTok ban violates Americans’ First Amendment rights,” FIRE (Dec. 27)
• Todd Spangler, “TikTok Ban: Free-Speech Groups, Members of Congress Urge Supreme Court to Save App on First Amendment Grounds,” Variety (Dec. 27)
• Zach Schonfeld and Julia Shapero, “Lawmakers, former officials weigh in on TikTok ban as case heads to Supreme Court,” The Hill (Dec. 27)
• Jameel Jaffer and Genevieve Lakier, “The Supreme Court Must Intervene in the TikTok Case,” The New York Times (Dec. 10) 

More in the News

• Ian Millhiser, “The huge stakes in a new Supreme Court case about pornography,” Vox (Jan. 2)
• “‘It Ends With Us’ Actor and Director Justin Baldoni Sues the New York Times for Libel,” First Amendment Watch (Jan. 2)
• Breanne Deppisc, “US appeals court upholds Trump verdict in E. Jean Carroll defamation case,” Fox News (Dec. 30) (2^nd Cir. opinion here)
• John Carpenter, “Misinformation, disinformation and the threat to democracy,” Free Speech Center (Dec. 30)
• Eugene Volokh, “Shareholder Derivative Lawsuit Against Fox Officers and Directors Over Fox $787M Libel Settlement Can Go Forward,” The Volokh Conspiracy (Dec. 28)
• Annabella Rosciglione, “Arkansas law punishing librarians overturned by judge over first amendment concerns,” The Washington Examiner (Dec. 27)
• Nico Perrino, “California and other states are rushing to regulate AI. This is what they’re missing,” FIRE (Dec. 23)
• Colin McDonell, “One day after FIRE lawsuit, Congress passes changes to filming permits in national parks,” FIRE (Dec. 20)
• Corynne McSherry, “There’s No Copyright Exception to First Amendment Protections for Anonymous Speech,” Electronic Frontier Foundation (Dec. 19)
• “Indiana Law Shrouds Executions in Secrecy, Prompting New Pushes for Public Oversight,” First Amendment Watch (Dec. 18)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
• Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)

Review granted

Pending petitions

Petitions denied

Last scheduled FAN

FAN 451: “Media on the run: A sign of things to come in Trump times?”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.