How is your community depicted in the curriculum? Who decides?

The CAPEEM decision erects a nearly ironclad legal defense for the state against parents who would seek to influence through lawsuits what public schools teach about their religion or culture.

K-12 curriculum development is a creature of state law. Long before teachers enter the classroom, their state board of education has already decided on the content standards for their subject area and the scope and sequence of the topics they must follow when crafting their lesson plans. In many parts of the country, policy makers have decided even the specific instructional materials they must use.  

In California, a recent legal decision reaffirmed the state’s authority to decide what students are to be taught in the public schools. But it also raised an important question about the rights of distinct religious, cultural, and ethnic communities: Do they have any means of influencing how they are depicted in the K-12 curriculum, or whether students will learn about their community at all?  

Representations of Hinduism in the California standards  

In recent years, a number of states, including California, have eased up on their authority to decide which textbooks and other instructional materials teachers must use in the classroom — increasingly, they’ve left such decisions up to local school districts. Still, though, those materials have to be aligned with the state’s curriculum standards and frameworks. Local educators may have more discretion than in the past, but the state continues to set the parameters within which they must operate.  

Likewise, when creating textbooks for the K-12 marketplace, publishers tack closely to the curricular specifications established by the most populous states (i.e., the most lucrative markets), especially California and Texas. It’s a fair assumption, then, that when judges rule about the legality of California’s history and social science standards, their decision will have a significant impact on what’s taught and learned not only in California’s classrooms, but in other states as well.    

Adopted in 1998, California’s history and social science standards invite students to explore the “geographic, political, economic, religious, and social structures” of the world’s major civilizations. And in the current curriculum framework for this subject area, adopted in 2016, the state calls for students to analyze “the birth and spread of religious and philosophical systems,” defining particular content to be learned.   

However, in a 2017 federal lawsuit, California Parents for the Equalization of Educational Materials (CAPEEM) v. Torlakson, parents of Hindu children in the California public schools took issue with the specifics of what was being taught, alleging that the standards and framework discriminated against them by inaccurately and disparagingly representing their faith, in violation of the U.S. Constitution.   

The plaintiffs argued that while the California standards and framework treated other religions as having divine origins, they failed to do so for Hinduism, depicting the religion instead as a “social construct” — and the Bhagavad Gita not as “sacred Hindu scripture” but merely as “literature.” The plaintiffs also decried the framework’s disproportionate attention to the caste system, calling this focus “contemptuous and unlike the treatment of any other faith” and one that gave students an “unfairly negative view of Hinduism.” They further objected to the framework’s description of Hinduism as contributing to the unequal status of women, while not acknowledging patriarchy in other world religions. Finally, plaintiffs pointed to the standards and framework’s reference to a “long-ago debunked, Orientalist theory” that Hindu civilization owed its creation to Aryan invaders of European origin.  

The federal district court ruled against the plaintiffs in 2017 and again in 2019. In September 2020, on appeal, the 9th Circuit Court of Appeals again decided in favor of the state of California, holding that the state’s curricular mandates reflected “careful crafting . . . to achieve a balanced portrayal of different world religions.” With this ruling, the 9th Circuit reaffirmed, unambiguously, the near-total discretion and authority of states to define the curriculum to be taught in their public schools.   

The way the 9th Circuit treated the plaintiffs’ constitutional arguments illustrates how courts have insulated the K-12 curriculum against a potentially paralyzing stream of legal objections — both legitimate and wacky — from the general public. (It should also be noted that, at key moments, California does invite, and responds to, thousands of comments and suggestions from the public on the K-12 curriculum.) But the CAPEEM opinion also shows the uphill battle that discrete minority populations face in altering the curricular contours etched by the state.   

The court’s findings  

The plaintiffs in CAPEEM first argued that they were denied Equal Protection because the state treated Hinduism less favorably than other religions. But the 9th Circuit held that this argument amounted to an “indirect attack” on instructional materials or curricula that align with state standards — a line of argument that had already been ruled invalid in the 1998 case, Monteiro v. Tempe Union School District. (In Monteiro, the court rejected a parent’s Equal Protection challenge to Mark Twain’s The Adventures of Huckleberry Finn and William Faulkner’s story “A Rose for Emily” because of racially derogatory language in those works. The court stated that it is “simply not the role of courts to serve as literary censors or to make judgments as to whether reading particular books does students more harm than good.”) Absent evidence of discriminatory intent or policy, the CAPEEM court held, “objections to curriculum assignments cannot form the basis of a viable equal protection claim, because curriculum decisions must remain the province of school authorities.”   

The courts appear to be telling the public: If you want to influence K-12 curriculum, look to the other branches of government.

The plaintiffs also alleged that California violated their due process rights by attempting to “indoctrinate children with beliefs biased deeply against Hinduism and in favor of the Abrahamic religions,” thereby interfering with the “liberty” (due process) interests of the Hindu parents to control the upbringing and education of their children. However, the court held that while, under the Fourteenth Amendment, a parent has the right to control and choose the “educational forum” for their children, that right “does not extend beyond the threshold of the school door,” to the curriculum.  

Next, the 9th Circuit disposed of the plaintiffs’ First Amendment claim that they were denied the free exercise of religion, stating that plaintiffs failed to allege any burden on their religious exercise or practice or “any specific religious conduct that was affected by the [state of California’s] actions” or any clear expression of hostility toward their religion by the state. Even “offensive content that does not penalize, interfere with, or otherwise burden religious exercise does not violate Free Exercise rights,” the court held.    

Finally, the court batted down the plaintiffs’ two First Amendment claims of impermissible “establishment” of religion by the government — first, that the content of the standards and framework amounted to an endorsement of Judaism, Christianity, and Islam; and second, that the content of the challenged classroom materials had the “primary effect” of disparaging or denigrating Hinduism. Refusing to consider expert evidence that the California standards contained outdated, offensive, and disparaging information about Hinduism, the court held that, from the perspective of an “objective, reasonable observer,” none of the Hinduism materials was disparaging. It also held that, far from endorsing non-Hindu religions, the California standards and framework refrained from taking a position on the historical accuracy of religious content.    

In essence, the CAPEEM decision erects a nearly ironclad legal defense for the state against parents who would seek to influence through lawsuits what public schools teach about their religion or culture. Unless there is evidence of overt hostility or bias, then, neither Fourteenth Amendment nor First Amendment claims are likely to be successful, especially in light of the fact that curriculum is widely treated as government speech (i.e., nearly unchallengeable) by courts.    

A limited judicial path  

Judicial opinions in other regions have followed similar reasoning. For example, in Chiras v. Miller (5th Cir. 2005), a textbook author was found to have no First Amendment right to be included in a state’s list of approved textbooks. In Parker v. Hurley (1st Cir. 2008), the court ruled that requiring public school students to read a book featuring gay couples did not violate the Free Exercise rights of Christian parents or children. In Griswold v. Driscoll (1st Cir. 2010), a state’s decision to remove curriculum materials referring to Armenian genocide in Turkey was found not to be a violation of the First Amendment. And in Sabra v. Maricopa County Community College District (D. Ariz. Aug. 18, 2020), the court found that including content about Islamic terrorism did not violate Free Exercise or Establishment clauses of the First Amendment.   

In the end, the courts appear to be telling the public: If you want to influence K-12 curriculum, look to the other branches of government; file a public comment; attend a hearing, or, failing that, lobby your legislature to mandate new curriculum. (There are recent examples of this in California: see the FAIR Education Act, a 2011 law requiring California schools to teach the contributions of LGBTQ+ and disabled Americans, and AB 331, a bill to make ethnic studies a high school graduation requirement in California.) Perhaps this is as it should be: The state has a paramount interest in ensuring that the curriculum covers required topics and learning goals in a particular way, as required by law. For communities lacking political power, however, ensuring fulsome and accurate portrayals in the K-12 curriculum remains a long and winding road.