Stunning 9th Circuit Win Revives Fight Against Liberated Ethnic Studies

This is a follow-up to our 2024 analysis, What the Court SAID and DIDN’T SAY about Liberated Ethnic Studies. Here is what changed on appeal.

On September 4, 2026, the Ninth Circuit handed The Deborah Project a substantial victory in Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, Nos. 24-7676 & 25-3436 (9th Cir. Sept. 4, 2026) (unpublished memorandum). The panel — Judges Lee, Bumatay, and Sung, who heard argument in Pasadena on May 20, 2026 — affirmed the dismissal of the operative complaint for lack of Article III standing, but reversed the district court’s refusal to allow another amendment and vacated both the anti-SLAPP order and the attorney’s fee award entered against the plaintiffs.

The bottom line: the case is alive, the plaintiffs get to plead again, and the fee judgment is gone. You can read the full memorandum here and follow every filing on our case page.

What we wrote in December 2024

When the district court dismissed this case, LES supporters celebrated. We wrote then about what the court said and didn’t say, and made four points:

• The dismissal was procedural, not substantive. It established nothing about whether anti-Zionist classroom material is lawful.
• The case would be appealed to the Ninth Circuit, and “we don’t yet know what those arguments will look like.”
• The holding was about standing — “the parents’ ability to sue on behalf of the students” — and “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.”
• “[P]rocedural losses can happen,” and the answer was to keep bringing cases with the right plaintiffs and the right records.

The Ninth Circuit has now confirmed every one of those points, and on the third it went further than we did. We said in 2024 that directly exposed students would satisfy standing. The panel held that direct exposure is not even required, so long as the plaintiff pleads a personally suffered harm causally linked to the curriculum’s use.

Three parts of the memorandum matter well beyond this case.

1. The claims are ripe

The district court had treated the case as premature because LAUSD never formally adopted the Consortium’s curriculum. The panel rejected that: “While the complaint does not allege that LAUSD has formally adopted the curriculum, it alleges that two LAUSD teachers are currently using the challenged curriculum in their classrooms. We thus disagree with the district court’s conclusion that the claims are unripe.”

That is not a small point. A recurring defense in curriculum litigation is that nothing has been adopted, so nothing is justiciable. The panel’s answer is that actual classroom use is enough to make the dispute a present one.

2. Standing failed on this complaint — but not on the theory the defendants wanted

The panel agreed that the plaintiffs had not pleaded injury-in-fact. The complaint “does not allege that the curriculum—despite being used in two classrooms—is being taught at any classroom or even school where the plaintiffs’ children attend or plaintiff-teachers work,” and the alleged harm — “the mere knowledge that the curriculum is being taught at two classrooms at LAUSD, which has over 100,000 high school students across dozens of schools—is too remote and speculative to constitute an injury-in-fact.”

But the panel then rejected the far broader rule the defendants have pressed in this and similar cases:

Our circuit’s standing precedent does not require the plaintiffs to allege that they or their children were directly exposed to antisemitic elements of the curriculum. But they must at least allege having personally suffered some harm plausibly attributable to the curriculum’s spread within the district or the plaintiffs’ schools—for example, that the plaintiffs have suffered an independent act of antisemitism causally linked to the curriculum’s use within LAUSD or the school.

That sentence is the most useful thing in the memorandum for Jewish families litigating curriculum cases. Direct exposure is not the price of admission to federal court. A downstream, causally connected harm — the bullying that follows the teaching — can supply the injury. The panel also explained why Parents Involved and Mahmoud v. Taylor did not carry the plaintiffs across the line here: those cases involved policies “formally adopted and defended by the defendants in court,” including, in Mahmoud, a board’s “clear and undisputed instructions” to expose children to the curriculum in the future.

The defect, in other words, was pleading, not doctrine.

3. Dismissal with prejudice was an abuse of discretion

Applying Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) — “[d]ismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment” — the panel held the plaintiffs had identified amendments that “could potentially cure the standing deficiencies,” including “that the challenged curriculum has proliferated in the two-plus years that have passed since the lawsuit was filed, and that the plaintiffs’ children have suffered related antisemitic acts at school (such as bullying).” The court noted that although the complaint had been amended before, “the previous amendments appear to be mostly technical in nature, and the district court has only once ruled on the standing issue.”

The panel added, in a footnote, that because the district court found no standing, “it should not have reached the merits of the plaintiffs’ claims,” and expressly declined to opine on the merits itself.

4. The anti-SLAPP order and the fee award are vacated

This is the part that changes the economics of ethnic-studies litigation in California federal courts. California’s anti-SLAPP statute “does not allow a court to both grant a defendant’s special motion to strike and a plaintiff’s request for leave to amend,” and, quoting Verizon Delaware, Inc. v. Covad Communications Co., 377 F.3d 1081, 1091 (9th Cir. 2004), striking a complaint under a state procedural rule and awarding remedies when the claims may be salvageable on amendment would “directly collide with Fed. R. Civ. Proc. 15(a)’s policy favoring liberal amendment.” Because leave to amend should have been granted, the strike order and the fee and cost award fall with it.

The panel then left a much larger question hanging. In footnote 2, it declined to decide “whether our circuit’s decision in United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999), in which we held that California’s anti-SLAPP attorney’s fees provision may apply in federal court, is clearly irreconcilable with the Supreme Court’s recent decision in Berk v. Choy, 607 U.S. 187 (2026).”

Anyone litigating a California civil rights case in federal court should read that footnote closely. The threat of a six-figure anti-SLAPP fee award has done more to deter these cases than any merits ruling, and the Ninth Circuit has now put on the record that the foundation of that threat may not survive Berk.

What happens next

The case returns to Judge Olguin for an amended complaint. On the panel’s own roadmap, that complaint needs to do two things the last one did not: show the curriculum’s spread since 2022, and connect specific antisemitic incidents suffered by these plaintiffs or their children to that spread.

An unpublished memorandum is not precedent under Ninth Circuit Rule 36-3. But its reasoning is available, and its reasoning says that Jewish families challenging what is taught in their children’s public schools do not have to prove their child sat in the specific classroom to get through the courthouse door — and that a district court cannot dismiss them with prejudice and then bill them for the privilege.

It also says something the community should hear plainly. The reason this complaint failed is that no one had come forward with the incident that connects the curriculum to a child. The reason it can now be fixed is that, in the two-plus years since it was filed, those incidents happened. Two years ago we asked families to come forward and document what their children experience at school. The Ninth Circuit has just explained, in as many words, why that is what wins these cases.

Mark L. Javitch is a civil rights and consumer protection attorney in San Mateo, California. He serves as local counsel with The Deborah Project in Fendel v. Berkeley Unified School District, an ethnic-studies case pending in Alameda County Superior Court.