Citizens for Quality Educ. San Diego v. Barrera, Case No. 17-cv-1054-BAS-JMA

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Citation333 F.Supp.3d 1003
Decision Date25 September 2018
Docket NumberCase No. 17-cv-1054-BAS-JMA
Parties CITIZENS FOR QUALITY EDUCATION SAN DIEGO, et al., Plaintiffs, v. Richard BARRERA, in his official capacity as Board President, et al., Defendants.

333 F.Supp.3d 1003

Richard BARRERA, in his official capacity as Board President, et al., Defendants.

Case No. 17-cv-1054-BAS-JMA

United States District Court, S.D. California.

Signed September 25, 2018

333 F.Supp.3d 1011

Charles S. LiMandri, LiMandri & Jonna LLP, Rancho Santa Fe, CA, Teresa Lynn Mendoza, Barnhorst Scheiner and Goonan, San Diego, CA, for Plaintiffs.

Jennifer Marie Fontaine, Michael Cody Sullivan, Paul, Plevin, Sullivan & Connaughton LLP, San Diego, CA, for Defendants.


[ECF No. 26]

Hon. Cynthia Bashant, United States District Judge

This case stems from the San Diego Unified School District's (the "District") decision in July 2016 to develop an Anti-Islamophobia Initiative (the "Initiative") to address Islamophobia and anti-Muslim bullying and the District's decision in April 2017 to adopt implementing "Action Steps."

Plaintiffs are two organizations—Citizens for Quality Education San Diego ("CQESD") and San Diego Asian Americans for Equality Foundation ("SDAAEF")—and six parents of students in the District—Scott Hasson, Chaoyin He, Xuexun Hu, Kevin and Melissa Steel, and Jose Velazquez (collectively, "Plaintiffs"). Plaintiffs claim that the Initiative is a pretext to establish the District's preference for Islam and Muslim students. They allege that the Initiative and its implementing measures establish "a subtle, discriminatory scheme" based on religion in violation of the First and Fourteenth Amendments of the Federal Constitution, the religion clauses of the California Constitution, and various California state statutory provisions. (ECF No. 3 First Am.

333 F.Supp.3d 1012

Compl. ("FAC").) Plaintiffs further allege that the District's relationship with non-party Council on American-Islamic Relations1 ("CAIR") to address Islamophobia violates Plaintiffs' constitutional rights because Defendants "have entangled themselves with [a] religious organization." (FAC ¶ 2.) Given the parties' previous request to dismiss Plaintiffs' claim for nominal damages, the only relief Plaintiffs seek is injunctive and declaratory. (ECF Nos. 17, 19.)

Before the Court is Plaintiffs' motion for a preliminary injunction. (ECF No. 26.) Plaintiffs request this relief solely for the claims they assert pursuant to the No Preference and No Aid Clauses of the California Constitution and the First Amendment's Establishment Clause. (ECF No. 26-1 at 11–18.)2 In connection with these claims, Plaintiffs request the Court enjoin Defendants from: (1) "[i]mplementing and executing the Initiative as detailed in the Policy's ‘Action Steps’ or any similar Policy," (2) "[p]ermitting [CAIR], its employees, agents, and representatives to advance their organizational objectives within the District," and (3) "[a]dopting and implementing the CAIR Committee's ‘Islamophobia Toolkit’ and all related online resources, recommended books, and instructional materials, together with all such materials currently in use in the District." (ECF No. 26-1 at 21–22.)

Defendants oppose Plaintiffs' motion. (ECF Nos. 32, 55.) Because the parties previously requested dismissal of the District as a defendant (ECF Nos. 17, 19), the remaining Defendants in this case are District Board members Richard Barrera, Kevin Beiser, John Lee Evans, Cynthia Marten, Michael McQuary, and Sharon Whitehurst-Payne (collectively, "Defendants" or the "Board"). Among other arguments they raise, Defendants contend that one of the District's post-FAC actions has mooted Plaintiffs' claims, which they argue in turn means that Plaintiffs cannot show a likelihood of success on the merits or irreparable harm. (ECF No. 32 at 8–13; ECF No. 55 at 1–8.) CAIR-California ("CAIR" for the purposes of this Order) has filed an amicus curiae brief opposing Plaintiffs' motion based on the merits of Plaintiffs' claims, to which Plaintiffs have responded. (ECF Nos. 36, 50.)

Having considered the FAC, the preliminary injunction record and the briefing, the Court denies Plaintiffs' motion for a preliminary injunction in its entirety because Plaintiffs have failed to show that this extraordinary relief is warranted.


The "Initiative". On July 26, 2016, the Board approved a recommendation by two Board members to "take action to

333 F.Supp.3d 1013

direct the superintendent to bring back to the board a plan to address Islamophobia and the reports of bullying of Muslim students ... at a future date." (LiMandri Decl. ¶ 4 Ex. 2; FAC ¶ 30.) Plaintiffs refer to this Board action as the "Initiative." (ECF No. 26-1 at 2.)

The parties dispute the reasons for the Initiative's genesis. Defendants represent that they adopted the Initiative "[i]n the wake of the increased instances of Islamophobia following Donald Trump's election campaign." (ECF No. 32 at 2.) Defendants cite an article, which explains that "[h]ate crimes against American Muslims have soared to their highest levels since the aftermath of the Sept. 11, 2001 attacks, according to data compiled by researchers" and identifies statements by candidate Trump about Muslims as one source. (Id. at 2 n.1); see Eric Lichtblau, Hate Crimes Against American Muslims Most Since Post-9/11 Era ," N.Y. TIMES (Sept. 17, 2016), rise.html. The FAC also alleges that the Board relied on a CAIR California state-wide survey, Growing in Faith: California Muslim Youth Experiences with Bullying, Harassment & Religious Accommodation in Schools [hereinafter "CAIR Survey "].4 (FAC ¶¶ 36–39.) The survey details the experiences of surveyed California Muslim youth regarding religion-based bullying and harassment.5

In contrast, Plaintiffs believe that the Initiative's express focus on Islamophobia and anti-Muslim bullying masks the District's true goal to "singl[e] out a religious sect for favorable treatment" and "delegat[e] government power to a religious organization," i.e. , CAIR.6 (ECF No. 26-1 at 1; FAC ¶¶ 1–3.) For example, Plaintiffs point to the District's reported instances of bullying as insufficient to show "a Muslim bullying crisis even existed." (Id. at 3.) The

333 F.Supp.3d 1014

District's 2016 "Protected Class Report" for July 2016 through December 2016 reported seven incidents of religion-based bullying, which Plaintiffs characterize as showing a "a 0.006% crisis" based on the District's approximate 125,300 K-12 student enrollment as of May 19, 2017. (LiMandri Decl. ¶ 7 Ex 5; FAC ¶¶ 27–28). Plaintiffs further note that the District reported to the California Department of Education in 2015 and 2016 "just two instances related to Muslim students." (ECF No. 26 at 3; LiMandri Decl. ¶¶ 5–6, Exs. 3–4.) Lastly, Plaintiffs point to a pre-existing California state law requirement that California public school districts adopt policies that prohibit religiously-based "discrimination, harassment, intimidation, and bullying" to assert that the District already had an anti-bullying program in place. (ECF No. 26-1 at 3 (citing 5 Cal. Code Reg. § 4261); FAC ¶ 22.)

The "Action Steps" . In an April 4, 2017 presentation to the Board, Stanley Anjan, the Executive Director of the District's Family and Community Engagement Department ("FACE") "propos[ed] action steps for an anti-Muslim bullying initiative." (ECF No. 32-2 Anjan Decl. ¶¶ 2–3; see also LiMandri Decl. ¶ 7 Ex. 5 at 51; FAC ¶ 5.) Anjan identified three sets of "Action Steps" for the District7 :

333 F.Supp.3d 1015
 Action Steps
                (LiMandri Decl. ¶ 7 Ex. 5 at 55-57; Anjan Decl. ¶ 3 Ex. A at 8-10; FAC ¶¶ 53-55.)
                "Immediate • "Distribute a letter to staff and parents addressing Islamophobia and direct
                Action support"
                 • "Review district calendars to ensure Muslim holidays are recognized"
                 • "Include a link of supports on the district's `Report Bullying' page"
                 • "Provide resources and strategies to support students during the upcoming
                 month of Ramadan"
                 • "Continue the collaboration with community partners and district departments"
                "Action • "Review and vet materials related to Muslim culture and history at the
                steps: Instructional Media Center or in video libraries"
                Before the
                start of the • "Provide resources and materials for teachers on the History/Social Services
                2017-18 page"
                school • "Add information related to this topic in the Annual Employee Notifications
                year" (AP 6381)"
                 • "Explore and engage in formal partnerships with the Council on American-Islamic
                 Relations (CAIR)"
                "Steps • "Create a survey to measure knowledge and implementation of practice"
                Multiple • "Identify areas of prevention, intervention, and restoration": "Restorative
                Years" Practices" and "Trauma Informed Practices"
                 • "Provide a series of professional development opportunities for staff related to
                 awareness and advocacy for Muslim culture"
                 • "Provide practical tools for educators regarding Islamic religious practices and
                 accommodations in schools"

Defendants acknowledge that "the Board approved the plan in the presentation, and FACE was responsible for implementing the action...

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