Jewish Parents and Teachers in Legal Battle with LA Teachers Union over Anti-Semitic Ethnic Studies

Jewish parents and teachers fighting a pitched legal battle to keep an anti-Semitism ridden ethnic studies curriculum out of the Los Angeles public schools, are vowing to appeal a federal judge’s snide ruling dismissing their lawsuit against the Los Angeles teachers union and the consortium that created the curriculum.

The appeal is expected to be filed by the end of next month.

United States District Court for the Central District of California Judge Fernando  Olguin ruled last month that the lawsuit was too speculative–meaning it did not assert an actual injury that can be cured–because the curriculum in question has not been officially adopted by the Los Angeles Unified School District. And that restricting what educators could teach would violate the First Amendment.

Judge Olguin, appointed to the District Court by President Barack Obama in 2012, wrote that the plaintiff’s argument 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 said that Jewish teachers disagreeing with the curriculum did not amount to a violation of their civil rights, as they alleged.  “It is far from clear that learning about Israel and Palestine or encountering teaching materials with which one disagrees constitutes an injury.”

But Lori Lowenthal Marcus, lawyer for the plaintiffs, who include Los Angeles public school teachers and parents with kids in the school system, told the California Globe that the judge’s formulation in that sentence misses the whole point of the lawsuit.

“We of course are not suing because we don’t want people to learn about Israel and Palestine. The complaint alleges that what’s being ‘taught’ about Israel and Zionism is factually false as well as wildly biased, not to mention entirely unmoored from what Ethnic Studies was supposed to be.”

The Jewish plaintiffs had asked the judge to issue injunctions barring teachers from using virulently anti-Israel material, bar the District from paying teachers who use the liberated curriculum material and prohibit use of the curriculum in classrooms and teacher training.

But Olguin said that even though it is established case law that the speech of public employees can be limited on the job, these kinds of requested restrictions would violate the First Amendment because he did not like who was requesting them.

“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.”

The liberated ethnic  studies curriculum has reportedly been adopted by 24 school districts across California and used in some classrooms in Los Angeles, just not officially.  The curriculum says that Israel is a “colonialist” and “settler state” created through “genocide”and “ethnic cleansing” and “apartheid.”

It describes Israel and the United States as “white settler states” despite the fact that, as the plaintiffs have noted that more than half of Israel’s population is non-white, “including  people whose ancestors lived in Africa and India and more three million Israelis descended from Jews who’ve lived in the Middle East since before the Babylonian exile 2,600 years ago. “

Lori Lowenthal Marcus, says that the liberated ethnic studies consortium is “peddling to different school districts across California, including the one in Los Angeles, the same hateful material that was rejected by the people and government of California prior to the passage of  AB 101, the California mandating an ethnic studies course for graduation from high school.”

That law explicitly said the ethnic studies curriculum should  be free of bias. But the lawsuit says the liberated ethnic studies curriculum is ridden with precisely the kind of bias that the law prohibits.

“Contrary to the dictates of California law, the LESMC makes no effort to teach about the Middle East in a way that respects the claims and beliefs of all of the peoples who reside there. It does not teach, or instruct California public school teachers to teach, in an equally respectful manner about the competing claims of Jews, Arabs, and others (such as the Druze and the Bedouins) to land or to sovereignty in that region. Instead, lesson plans on which the LESMC is based simply present the claims of the group favored by Defendants as ‘true’ and the claims of the Jews as false and rapacious. At a minimum, California law requires that  the various claims of Jews and Arabs, Zionists and antiZionists, be presented evenhandedly.”

The lawsuit was originally filed in May 2022 and an amended complaint was docketed on October 16, 2023. The amended complaint includes more details of efforts by curriculum proponents to keep the course material secret from the public.

The defendants include the United Teachers of Los Angeles union and its president, Cecily Myart-Cruz because they are allegedly trying to import the curriculum into the public schools; the Liberated Ethnic Studies Model Consortium that is made up of union officials, activists and ethnic studies professors at the University of California and California State University; Theresa Montaño, vice-president of the California Teachers Union and secretary of the Consortium; and Guadalupe Carrasco Cardona, a Los Angeles public school teacher and CEO of the Consortium.

The lawsuit says that the defendants’ attempt to implement the Liberated Ethnic Studies Model Consortium (LESMC) material in classrooms amounts to discriminatory intent against Jews.

“Such intentional discrimination is present here as evidenced by the Defendants’ actions in placing LESMC materials in LAUSD classrooms, and by their own statements, quoted herein, which make clear that Defendants oppose the Jewish commitment to Zion and are using the public school curriculum to fulfill their obligation to “always be confronting Zionism,” so they can drive that idea out of the public square and thereby to prevent achievement of the goals of Zionism. Promulgation of the Palestine portion of the LESMC for use in the public schools of the LAUSD is motivated by Defendants’ clearly expressed intent to discriminate against Israel, the Jewish State, and the Jewish belief in Zionism and against people who identify as Israeli, with the Jewish state, or who hold the Jewish belief in Zionism.”

Moreover, “The LESMC also explicitly denounces the Jewish religious principle of Zionism, proclaiming falsely both that Zionism is morally wrong and that it is not actually a tenet of the Jewish religion. Because it contains this material, the LESMC discriminates against all Jews who hold a sincere religious commitment to that central religious principle.”

The lawsuit also takes issue with the leftist canard that anti-Zionism is something distinct from anti-Semitism. “The LESMC’s proponents claim that the LESMC is not antisemitic because “Zionism is distinct from Judaism.”   This claim is false. In fact, Zionism is a central religious tenet of Judaism; a religious belief, and source of ethnic and national identity sincerely held by each of the individual Plaintiffs.”

It charges that the attempt to introduce the curriculum is an exercise in anti-Jewish discrimination in violation of Title VI of the 1964 Civil Rights Act.

“Such intentional discrimination is present here because the Defendants’ actions —including introducing and attempting to introduce the LESMC into the public schools of the LAUSD—were motivated by Defendants’ clearly expressed intent to discriminate against Israel, Israeli people, Jews who identify ethnically with the State of Israel, and Plaintiffs’ sincerely held Jewish belief in Zionism. “

Attorney Lori Lowenthal Marcus said the judge made a number of errors in his decision and she explicated them at length in comments to the California Globe.

“The trial court Opinion also errs by getting numerous key facts wrong,” she emailed.  “It says the curriculum has not been formally “adopted” by the LA School District but then ignores the legal significance of the Complaint’s allegation that the material is being taught there anyway–indeed, this is what is happening in so many school districts, i.e. there is no official adoption of a particular curriculum, and yet teachers—some by department, some alone, and others are directed by their unions to—use instructional materials that directly violate the assurances the California government made to its citizens: that antisemitic and other biased, incendiary materials would not be taught in its public schools under the guise of ‘Ethnic Studies.'”

Marcus also said the judge ignored relevant case law when suggesting restricting what teachers can say in the classroom by prohibiting the curriculum, would violate their First Amendment rights.

“The judge found that Defendants have a First Amendment right to include this material in the classroom when the Ninth Circuit Court of Appeals has held categorically that public school teachers have no First Amendment rights in the classroom, because when they’re at work in a public school classroom they are government employees and their speech is government speech. That Ninth Circuit decision, Johnson v. Poway Unified School District, 658 F.3d 954 (9^th Circuit 2011) says that the First Amendment requires that courts be ‘swift to step in once [a teacher’s] dialogue becomes stigmatic.’  That, of course, is exactly what’s alleged here.  Though we cited this decision in our brief, and though it’s binding precedent, the trial court Opinion does not even mention Poway.”

She added that the curriculum is being sneaked into classrooms in violations of multiple state laws that require full disclosure of teaching material.

“The trial court also ignores the significance of the Defendants’ efforts to hide what they’re doing from parents, the public and from administrators who might stop the usage of this biased material,” she contended.  “Teachers are given instructions by Defendants to ‘fly under the radar’ and ‘close your door’ when using the instructional material we’ve focused on.”

Moreover, “One of the most important current issues is the need for transparency in public education.  Parents want to know, and have a right to know, what’s being taught in the public schools financed with their tax dollars.  One of the key remedies sought in our case is disclosure. The trial court Opinion ignores this, implicitly holding that neither parents nor the public has the right to see what’s being taught in public schools.  That just can’t be right, and in fact it isn’t right:  California has several laws, which we’ve invoked, that require public disclosure of teaching materials.”

Marcus expressed optimism that her appeal to the Ninth Circuit of Appeals is going to be successful and the judge’s decision reversed.

“We’re optimistic that the Ninth Circuit Court of Appeals will correct the many errors in the trial court Opinion.”