What the Court SAID and DIDN’T SAY about Liberated Ethnic Studies

Much ado has been made about a recent court decision dismissing a challenge to what is known as the Liberated Ethnic Studies “LES” curriculum. LES supporters are hailing this as a big victory. 

First, the background on LES: “Liberated Ethnic Studies” is a term for the curriculum that was proposed and specifically rejected by Governor Newsom for being antisemitic. These materials were not permitted to be included in the model curriculum when the current Ethnic Studies model curriculum (not “Liberated”) was adopted. However, die hard LES proponents still cling to the rejected “Liberated” material and are finding ways to introduce these materials to the classroom through back door measures. As you can tell from their website, they are not teaching facts, they are activists trying to introduce propaganda.

But don’t lose faith after one battle. We’re in a long-term conflict against people trying to bring antisemitism into public schools. LES supporters are distorting the truth about what the court actually said and didn’t say.

The case that was just dismissed traces back to May 2022. While the fight over what the Ethnic Studies curriculum should teach was starting, a group of parents and teachers sued the Los Angeles Unified School District and other organizations for introducing material in schools that had just been officially determined to be illegal for its antisemitism. However, the court just dismissed this case, mostly on procedural grounds. Unfortunately, we have not yet been able to prevent schools from introducing biased curriculum despite it being illegal on multiple grounds. LES supporters are jumping for joy.

But the accolades they are giving themselves are overblown. This lawsuit was just one attempt and one theory to prevent the material from being introduced on the grounds that because it had already been rejected as antisemitic by Governor Newsom in 2019, it could not be introduced by others. This suit was dismissed at the trial court level, but the suit will be appealed at the 9th Circuit Court of Appeals. We don’t yet know what those arguments will look like, and the issue of keeping antisemitic materials out of classrooms is far from over.

LES Is Wrong to Celebrate Their Teaching of Anti-Zionist Material

LES Social Media posts appeared to celebrate their ability to bring anti-Zionist material into the classroom. But the case did nothing to establish that what they are doing is permitted. Just as their classroom material misinforms, they are trying to mislead people about the significance of this decision.

The LES Decision Was Procedural, Not Substantive, and will be Appealed

These claims from LES’ Instagram post are incorrect. Just because something is illegal, it doesn’t mean that we have a right to sue in court. Laws must specifically state that anyone from the public is allowed to sue. Further, there are procedural requirements that must be satisfied in our system, known as “standing,” that ensures that only the person who is directly injured by the case is the one who may sue. Probably for the students’ privacy, this case was brought in the name of parents. That means the decision only comments on the parents’ ability to sue on behalf of the students. The court’s decision was rather limited to the notion that parents do not satisfy the injury requirement for disagreeing with the curriculum. 

The court’s limited holding does not mean that it is legal for antisemitic material to be taught in schools. LES supporters are surely taking the wrong message from that. Jewish and Israeli students who are directly exposed to antisemitic material in class would be in a much different context than the one examined by this court. Student plaintiffs will indeed satisfy the standing requirements to challenge discriminatory material. 

This Case Does Not Legalize anti-Zionist Material

While the case was dismissed,  it does not mean that it “establishes” anything for LES supporters. The dismissal was purely based on one legal theory that can be adjusted in the future. There was no trial held in which LES prevailed. The truth is, this case, despite being on file for two years, was still at a relatively early stage, where the court was only considering the pleadings and not even considering evidence. A decision at this early stage of the case where evidence is not considered is less important than decisions where evidence has already been introduced at trial. People who worry that this case sets a “bad precedent” should understand that this decision only applies to this one legal theory presented here, which was largely that this material should be kept out of the classroom because that is what Governor Newsom determined when developing the Ethnic Studies curriculum.

Anti-Zionist discrimination will continue to be illegal in the United States. The court decision in August 2024 against the antisemitic UCLA encampments is one that considered all the evidence, and was raised in a proper context with standing, and will be a much more important decision to understand the law regarding anti-Zionist discrimination. See Frankel v. Regents of the Univ. of Cal., No. 2:24-cv-04702-MCS-PD, 2024 U.S. Dist. LEXIS 146433 * | 119 Fed. R. Serv. 3d (Callaghan) 640 | __ F.Supp.3d __ | 2024 WL 3811250 (C.D. Cal. Aug. 13, 2024). The notation with the “F. Supp.” and the blanks before and after means that this case is going to be published in the Federal Supplement (a real government law book) but it hasn’t been assigned a page number yet. 

In that case, Jewish students won an injunction (a huge victory at an early stage of a case) against being excluded from common areas of UCLA. UCLA tried to argue that it had “no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters.” But the court rejected that argument, indicating “under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion.” The court ordered that UCLA is “prohibited from knowingly allowing or facilitating the exclusion of Jewish students.” 

The most important thing people should know about this decision is that the court ordered “[f]or purposes of this order, all references to the exclusion of Jewish students shall include exclusion of Jewish students based on RELIGIOUS BELIEFS CONCERNING THE JEWISH STATE OF ISRAEL.” Id. at *22 (strong emphasis added). This decision was an incredible victory that essentially codified in caselaw the much sought after IHRA definition of antisemitism that recognizes singling out Israel for unfair treatment is antisemitic. Again, this decision will be published and is on the merits with evidence, important considerations for courts.

We Must Continue to Confront Antisemitic Material

To the extent teachers take the lesson from this lawsuit that they are permitted to bring anti-Zionist material (or antisemitic material of any kind) into the classroom, that will just encourage more lawsuits. Material that treats Jews and Israel in a bad light and different from all other groups violates the education code and Title VI. If pro-Israel speech is curtailed by school administrators, or if students are required to repeat propaganda in compelled speech, that violates the First Amendment.

We now need to be prepared to come forward whenever our brave students encounter discriminatory material or an incursion on speech. Many people focused on this federal case because federal cases are easier to find on Google, but there are many other suits in state and federal courts that are still working their way through the court system.

For instance, The Deborah Project, with six brave students as the plaintiffs, just sued a large school district in the Bay Area, Sequoia Union, for egregious and repeated acts of antisemitism, including refusal to disclose the curriculum on Israel and Palestine, a teacher telling Holocaust jokes, and tolerating antisemitic comments about Jewish students, among worse incidents. This case will be more revealing in how a federal court analyzes a school’s antisemitic conduct.

And in September, with a student whose initials are A.F. as the plaintiff, The Deborah Project sued members of the Berkeley School Board in the Superior Court of Alameda County directly on the merits to determine that the classroom material is antisemitic. This is the second lawsuit the Deborah Project currently has on file regarding Berkeley, the first being for failure to disclose the antisemitic curriculum to a Jewish father that officially requested to see it under public records laws.

After an antisemitic protest at Adas Torah synagogue in June 2024 in Los Angeles, Orthodox Jewish neighborhood resident Ronen Helmann brought suit against Code Pink, Palestinian Youth Movement, and the individuals responsible for blocking the synagogue entrance in violation of federal law. StandWithUs has also joined the case, but out of all the people affected, only one person, Mr. Helmann, has been willing to come forward with their real name. Understandably, people are being intimidated from coming forward, but enforcing the law requires us to do so.

These are just a few cases in which we are enforcing our rights. These cases will not be dismissed on procedural or standing grounds. Liberated Ethnic Studies presents a new challenge for the Jewish community to prevent antisemitic material and we won’t know exactly what strategies will be most effective until we try them. The legal system is subjective in some regards and procedural losses can happen. But for now, for our students who are experiencing this epidemic of antisemitic education, we must be as brave as possible in encouraging people to bring forward incidents of discrimination when they happen. In the meantime, we should continue to have faith in the American legal system that the courts will eventually succeed in getting illegal, antisemitic material out of the classroom.