SAN FRANCISCO (CN) — The Ninth Circuit on Thursday nixed a constitutional challenge over how Hinduism is portrayed in California public schools.
The three-judge panel found no basis to conclude that the California Board of Education discriminated against Hinduism when it drafted new education guidelines in July 2016 that adopted allegedly anti-Hindu recommendations from a group of history professors called the South Asia Faculty Group.
Outraged by a curriculum it views as disparaging Hinduism while favoring Western religions, the nonprofit California Parents for the Equalization of Educational Materials (CAPEEM), a group promoting the fair accurate portrayal of Hinduism in schools, joined with three Hindu parents in suing the California Board of Education and litany of school district boards in 2017.
Their lawsuit claimed the framework pushes an outdated theory that Hinduism was founded by Aryan invaders and describes the caste system as a Hindu religious belief, while teaching biblical figures and events as historical fact.
U.S. District Judge Charles Breyer dismissed the action in 2017, finding the framework and the process leading up to the curriculum’s adoption not discriminatory or hostile to Hinduism. While he allowed a First Amendment Establishment Cause claim to advance, he scuttled it in a second order in 2019.
The panel affirmed Breyer’s ruling Thursday.
“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,” U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee, wrote for the unanimous panel.
Of the materials themselves, Schroeder added an “objective reading” did not lead the court to conclude that they were discriminatory or that they promoted a particular religion.
“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 inclusion of passages from the Bible in course materials does not violate the Constitution,” she wrote. “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.”
Schroeder was joined on the panel by Chief U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, and Donald Trump appointee U.S. Circuit Judge Daniel Bress.
The judges also held that Breyer did not err in excluding an expert report to support the claim that the framework has the primary effect of denigrating Hinduism.
“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,” Schroeder wrote.
CAPEEM co-founder and president Arvind Kumar decried the appellate court’s ruling in an emailed statement.
“This shameful judgment by three white judges is not only an endorsement of the white supremacist notions of a light-skinned Aryan race civilizing every other race on Earth, but is also an endorsement by the court of the biblical indoctrination of school children through the use of history textbooks that describe mythological claims and supernatural phenomena in the Bible as though they were historical facts with even dates assigned to them,” he said.
In his first dismissal, Breyer relied on the Ninth Circuit’s reasoning in Monteiro v. The Tempe Union School District, a 1998 case that held a school district could not be sued for making students read Mark Twain’s classic “The Adventures of Huckleberry Finn,” despite the book’s repeated use of racial slurs, because an equal protection challenge would infringe on other students’ First Amendment interests in reading the challenged work and “significantly interfere with the [school district]’s discretion to determine the composition of its curriculum.”
The appellate judges said Thursday that Monteiro forecloses equal protection claims based on objections to course content, rejecting the group’s argument that a discriminatory policy like the one described in their case, is exempted from a Monteiro holding.
“The application of Monteiro v. Tempe Union in this case is an approval by the judges to permit the use of the racial epithet “n****” in government-created documents to describe Black people,” Kumar said of their finding. “Little wonder that Malcolm X said that we cannot win in the white man’s court but only win on the streets and the sidewalks.”
A California Department of Education spokesperson applauded the ruling.
“The California Department of Education and State Board of Education has been, and will continue to be, committed to making high-quality, rigorous and balanced curriculum frameworks available to the state’s local educational agencies,” the spokesperson said in an email.
The 2017 lawsuit was not the first time CAPEEM challenged aspects of California’s curriculum in court. It brought a complaint in 2006 claiming first through sixth graders were getting derogatory view of Hinduism in social science textbooks that promoted the Aryan Invasion Theory crediting light-skinned invaders with bringing Hinduism to India.
Discovery in that lawsuit yielded evidence of at least one academic who influenced the State Board of Education’s approval of edits and changes recommended by Western religious groups communicating with the Dalit Freedom Network — an organization actually run by a Colorado-based evangelical church. The organization has since been renamed.
“The judges have completely ignored the evidence proving that the Department of Education secretly orchestrated a group of professors who lacked qualifications in ancient Indian history and who have in the past coordinated their activities with a church in Colorado known for its anti-Hindu activities to provide inputs into the adoption process and illegitimately declared them to be official experts at the last moment, completely in violation of the rules that exist for contracting experts,” Kumar said.
Attorney Glenn Katon with Katon Law, who represented CAPEEM and the parents, said in an email, “The parents who brought this case are disappointed that the court did not allow us to go forward with our claims that show clear inferior treatment of Hinduism by the State Board of Education in the standards and framework,” he said. “We are considering our options for further appeal.”