by John Fensterwald

A federal judge has thrown out a lawsuit against the United Teachers Los Angeles and the organization that created a controversial ethnic studies curriculum adopted by at least two dozen school districts in California.

U.S. District Judge Fernando Olguin’s scathing November 30 ruling criticized what he concluded was a lack of evidence and unpersuasive arguments made on behalf of the two Jewish teachers and parents in Concerned Jewish Parents and Teachers of Los Angeles, the group that brought the litigation, according to reporting from Ed Source.

The plaintiffs’ 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,” wrote Olguin of the Central District of federal court in California. His 49-page pretrial ruling dismissing the lawsuit “with prejudice” precludes the plaintiffs from refiling another similar lawsuit in federal court. The lawsuit was filed in 2022.

The lawsuit alleged the Liberated Ethnic Studies Model Curriculum Consortium, the teachers union, its president Cecily Myart-Cruz, and two members of the LAUSD-UTLA Ethnic Studies Committee encouraged the adoption of instructional materials used in several LAUSD classrooms, that they also “covertly” trained teachers in the “liberated” ethnic studies curriculum, which condemns capitalism, white privilege, and Zionism, and characterizes Israel’s existence as “based on ethnic cleansing and land theft, apartheid and genocide,” according to Olguin’s summary of the lawsuit.

The lawsuit also alleged that teachers who identified as Jewish or Zionist were not welcome in classrooms where ethnic studies was taught and “personally experienced the official hostility” of UTLA to Israel and to the concept of Zionism.”

Denying they are antisemitic, educators affiliated with the consortium — mainly instructors and professors in ethnic studies departments at California State University and University of California — have made anti-Zionism and opposition to Israel a focus of their curriculum. They characterize Israel as a settler, colonialist nation, similar to European nations’ oppressive occupations of Africa and Asia in the 19th and 2oth centuries.

The “liberated” approach to ethnic studies has drawn scrutiny since its leaders formed the consortium in protest after the State Board of Education rejected as ideological and one-sided a draft curriculum that some of them had authored. In passing Assembly Bill 101, creating a mandate requiring high school students to take ethnic studies to graduate, the Legislature, at the encouragement of the Legislative Jewish Caucus, specified that school districts should not use unadopted portions of earlier drafts of the model curriculum.

Advocates of liberated ethnic studies charged the clause and other “guardrails” in the law were intended to squelch their free speech. The largely unfunded graduation mandate is set to take effect in 2029-30.

In an online celebration last week, Theresa Montaño, a defendant in the lawsuit who is also a member of the LAUSD-UTLA Ethnic Studies Committee and secretary of the consortium, said, “The end of this two-and-a-half year lawsuit means vindication, affirmation, and victory. This is a win for liberatory critical ethnic studies and academic freedom. It’s a testament to the power of solidarity and liberation, whether that be in South Los Angeles or in Gaza,” said Montaño, a professor of Chicano/a Studies at CSU Northridge. “And so it’s a signal to us that we will not stop, that we will persist until authentic ethnic studies is guaranteed to every student in this state.”

The attorney representing the defendants, Mark Kleiman, told teachers on the press call, “The moral of this story for people in the other school districts is, you don’t have to be afraid of these kinds of attacks. Given half a chance in a fair courtroom, you will be vindicated.”

Meanwhile, Lori Lowenthal Marcus, the legal director for the Deborah Project — the law firm that filed the lawsuit — said, “We absolutely will be appealing the decision and are confident that the decision will be reversed on appeal.” The appeal must be filed by Dec. 30. The ruling, said Lowenthal Marcus, “is deeply flawed, as it ignores crucial allegations in plaintiffs’ complaint, fails to address arguments plaintiffs made in their briefs, and even ignores binding precedent from the 9th Circuit Court of Appeals.

“We are in the midst of soaring antisemitism in education throughout the U.S., and this is no time for anyone — much less a federal court — to allow publicly funded public schools to be used to indoctrinate children to hate the Jewish commitment to Israel. Contrary to the ruling, that’s not ‘education’ about a ‘controversial’ issue. It’s prejudice, pure and simple.”

Uncertain implications

It’s unclear what impact, if any, the ruling might have on other litigation in California involving ethnic studies and allegations of antisemitism and indoctrination which include a potentially stronger lawsuit that the Deborah Project filed last month against the Sequoia Union High School District in Menlo Park, its superintendent, and administrators at two high schools. The plaintiffs in that case are the parents of Jewish students who claim that the district ignored parents’ repeated complaints of antisemitic taunts and bullying by students and biased lessons on the Israeli-Gaza conflict, taught by two history teachers.

On December 6, an Orange County Superior Court judge considered a motion to invalidate four ethnic studies courses in Santa Ana Unified. In their lawsuit, the Louis D. Brandeis Center for Human Rights Under Law claims that district staff wrote the courses, with the participation of school board members, in violation of the California open meetings law, and that They did so in order to hide the content from Jewish community members, who had repeatedly offered to participate in the process. Documents reveal that staff members referred to the Jewish Federation of Orange County as “racist Zionists,” and made bigoted remarks about Jews.

The lawsuit against UTLA and the consortium did not include LAUSD as a direct defendant, which may have weakened the case because the district has not adopted the Liberated Ethnic Studies curriculum, and there is no indication if and when it would. That made the plaintiffs’ concerns speculative and, therefore, their proposed remedies invalid, Olguin wrote, noting that the participation of Montaño and Guadalupe Carrasco Cardona, an LAUSD teacher and a member of the consortium’s leadership team, in an advisory committee is not evidence of the district’s endorsement of the curriculum.

Olguin further ruled the plaintiffs could not substantiate that teachers and other plaintiffs had yet faced any actual harm, nor did they demonstrate that the eventual adoption of the curriculum would violate civil rights. The judge continued that although plaintiffs claimed the curriculum was “infected from top to bottom with racism,” they didn’t show any evidence to support their assertion. “It is far from clear that learning about Israel and Palestine or encountering teaching materials with which one disagrees constitutes an injury,” Olguin wrote.

The plaintiffs had asked Olguin to issue injunctions prohibiting LAUSD from including language critical of Israel or Zionism in teaching materials; preventing the district from paying teachers who used the liberated curriculum; and prohibiting the district from using materials from liberated curriculum in classrooms and teacher training paid for by public funds.

Olguin ruled that the plaintiffs had not substantiated claims that their First Amendment guarantee of religious freedom and their right to equal protection under the U.S. and California constitutions were impeded. However, their request for an injunction would have raised an unconstitutional prior restraint on the defendants’ First Amendment speech rights, he concluded.

While a district can “reasonably” curtail teachers’ speech rights in a classroom, “those limitations are fundamentally different from speech restrictions imposed by a court at the behest of a group of private citizens,” he wrote. “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.”