Antisemitism Claims Against UC Berkeley Move Ahead in Part

In Louis D. Brandeis Center, Inc. v. Regents of the University of California, (ND CA, March 31, 2025), plaintiffs allege that UC Berkeley has discriminated against Jewish faculty and students. The California federal district court allowed plaintiffs' free exercise, equal protection and Title VI claims to move forward. However, it dismissed plaintiffs' Sec. 1981 claim for discriminatory refusal to enter contracts. The court said in part:

The FAC [First Amended Complaint] alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors....  The FAC says that these events were perpetrated by students who professed to oppose Zionism, but actually intended to discriminate against Jewish students and professors because they are Jewish....  The FAC also alleges that Berkeley failed or refused to enforce its anti-discrimination policies as to its Jewish students and faculty in response to these events.... The FAC also plausibly alleges that Berkeley was deliberately indifferent to the on-campus harassment and hostile environment.... Consequently, Brandeis’s claims under 42 U.S.C. § 1983 for violations of the Equal Protection and Free Exercise Clauses of the U.S. Constitution will go forward, as will the Title VI claim.  

It bears mention that the FAC repeatedly alleges that “Zionism is a central tenet of the Jewish faith.”...  This raises concerns about whether Brandeis intends to call upon the Court to determine the articles of faith of Judaism.  If so, a serious constitutional problem would arise....

The 42 U.S.C. § 1981 claim is dismissed.  The gist of this claim is that members of the plaintiff organizations who are legal academics cannot contract with certain Berkeley student organizations that adopted a bylaw barring invitations to individuals espousing Zionist beliefs....  Brandeis does not dispute it must show standing.... The complaint does not allege that any academic member has sought to contract with the organizations since adoption of the bylaw, been turned away on account of the bylaw, or has otherwise been put at a contractual disadvantage by the bylaw.

Diocese and Pregnancy Center Challenge Illinois Ban on Employment Discrimination Because of Reproductive Health Care Choices

Suit was filed last week in an Illinois federal district court by a Christian Pregnancy Care Center and a Catholic diocese challenging the requirement that they comply with recent amendments to the Illinois Human Rights Act that prohibit discrimination against employees based on their reproductive health care decisions. The complaint (full text) in Pregnancy Care Center of Rockford v. Bennett, (ND IL, filed 3/20/2025), alleges in part:

198. Because they wish to carry out their respective missions and spread their pro-life messages successfully, Plaintiffs hire and retain employees who avoid reproductive decisions that undermine their identity, mission, and message. For Plaintiffs, the credibility of their messengers is as important as the message. 

199. The Act’s Employment, Offensive Speech, and Notice Clauses severely burden Plaintiffs’ freedom of expressive association by forcing them to form associations and assemblies with employees whose reproductive decisions undermine their mission and message....

209. The Act substantially burdens Plaintiffs’ right to the free exercise of religion by prohibiting faith-based speech and conduct related to reproduction, interfering with their faith-based employment decisions, and forcing Plaintiffs to revise their statements of faith, positional statements, codes of conduct, employee handbooks, and other policy documents....

235. [The] right to religious (or “church”) autonomy safeguards a religious organization’s decision about which officers, board members, employees, and volunteers are best suited to advance its religious mission and purpose. 

236. This freedom extends to Plaintiffs’ ability to hire and employ only those who believe—and live out—the beliefs of their organizations about reproductive health decisions such as abortion, sterilization, and contraception....

259. The Act also restricts Plaintiffs’ right to free speech because it compels them to speak a message contrary to their beliefs not only to their current employees but also to prospective employees and the public in general....

281. Defendants’ application of the Act’s provisions about reproductive decisions to Plaintiffs’ religious speech and conduct violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Catholic Vote reports on the lawsuit. 

Court Enjoins Implementation of Ban on Transgender Individuals Serving in the Military

In Talbott v. United States, (D DC, March 18, 2025), the United States federal district court for the District of Columbia issued a preliminary injunction barring the military from implementing Executive Orders and military memoranda that exclude transgender persons from serving in the military. The injunction requires the military to maintain the pre-Trump status quo on military service by transgender individuals. Explaining its decision, the court's 79-page opinion said in part:

The Court agrees that “courts [are] ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have” and that “the military authorities [not courts] have been charged by the Executive and Legislative Branches with carrying out our Nation’s military policy.”... Often, courts accept “the reasoned, professional analysis of Congress and the Executive on matters strictly within the realm of military expertise.”...   

Defendants carry deference too far, however.  By “defer” they basically mean the Court must side with the military’s position, end-stop.  And they contend the Court must defer even if the judgment, as here, does not make sense....

The Court ... applies Bostock’s reasoning to analyze the Military Ban.  In doing so, it does not “import[] the Title VII test for liability,” ... into the equal protection guarantee of the Fifth Amendment.  Rather, it borrows Justice Gorsuch’s reasoning to conclude that transgender discrimination is a form of sex discrimination for purposes of the equal protection inquiry....

... [B]ecause the Military Ban targets transgender persons for disparate treatment, it creates an explicit sex-based classification that requires application of intermediate scrutiny. ...

The court also concluded that the Military Ban is subject to intermediate scrutiny because transgender persons should be considered a quasi-suspect class. The court went on:

Defendants have articulated important government objectives in military readiness, unit cohesion, and saving costs.  But the Fifth Amendment requires more than pointing to such “broadly formulated interests.”...  Defendants must show that the discriminatory Military Ban is in some way substantially related to the achievement of those objectives.  And they must do so without relying on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” ... They do not come close.  Plaintiffs are likely to succeed on their claim that the Military Ban fails intermediate scrutiny review.....

The Military Ban is soaked in animus and dripping with pretext.  Its language is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact.  Thus, even if the Court analyzed the Military Ban under rational basis review, it would fail....

The Court could stop here in its analysis and comfortably conclude that Plaintiffs are likely to succeed on their claim that the Military Ban is motivated by animus and is not tailored to meet its stated goals.  But, as they say, there is more, for the Military Ban does not stand alone.  President Trump has signed an executive order recognizing the existence of only two sexes; blocked schools from using federal funds to promote the idea that gender can be fluid; directed the State Department to stop issuing documents that allow a third “X” gender marker; changed references to “LGBTQI+” on government websites to “LGB,” erasing not just transgender persons, but intersex people as well; revoked the ability of transgender federal employees to receive gender-affirming care; and directed that all incarcerated transgender persons be denied medical treatments and be housed by birth sex, where they are nine times more susceptible to violence....

NPR reports on the decision.

Refusal To Amend Birth Certificate Did Not Violate Plaintiff's 1st or 14th Amendment Rights

In Malone-Bey v. Mississippi State Board of Health, (MS App, March 4, 2025), a Mississippi state appellate court held that plaintiff's religious free exercise, equal protection and due process rights were not violated when the State Board of Health refused to amend his birth certificate to designate his race as “white: Asiatic/Moor.” The court said in part:

[Plaintiff] asserts that “[t]he inability to recognize this information on [his] birth certificate impedes his full expression of his identity.”  He further asserts that the Board is “discriminating against [him] or placing undue burdens on him due to his religious beliefs or status” and has “denied [him] the ability to fulfill religious obligations and affirm his identity.”

These arguments are without merit.  The Board is in no way “discriminating against” Malone-Bey.  To the contrary, the Board’s approved Certificate of Live Birth does not identify the race, nationality, or religion of any child.  The Board has not treated Malone-Bey different from anyone else.  The Board has treated him just like everyone else....

“Just as the [State] may not insist that [Malone-Bey] engage in any set form of religious observance, so [Malone-Bey] may not demand that the [State] join in [his] chosen religious practices by” adding new categories of information to the State’s records....

Court Enjoins Cutoff of Funds to Institutions Offering Gender-Affirming Care to Minors

In PFLAG, Inc. v. Trump, (D MD, March 4, 2025), a Maryland federal district court issued a nationwide preliminary injunction against enforcement of provisions in two Executive Orders that threaten to cut off federal funding to medical institutions that offer gender-affirming care to individuals under 19 years of age.  The court found that plaintiffs are likely to succeed on three claims, saying in part:

Because the Executive Orders direct agencies to withhold funding on a condition that Congress has not authorized, the President has exceeded his authority. The Plaintiffs have thus sufficiently shown likelihood of success on the merits of their ultra vires claim that the Executive Orders violate the separation of powers....

Plaintiffs accurately note that the Executive Orders foist upon hospitals receiving federal funds an impossible choice: (I) keep providing medical care to transgender patients under the age of nineteen in compliance with the anti-discrimination statutes and risk losing federal funding under the Executive Orders, or (2) stop providing care on the basis of trans gender identity in violation of the statutes, but in compliance with the EOs. Because the challenged portions of the Executive Orders are facially discriminatory on the basis of transgender identity, and therefore sex under Kadel and Bostock, in violation of Section 1557 of the ACA and Section 1908 of the PHSA, the Court finds that Plaintiffs are likely to succeed on the merits of their ultra vires statutory claim....

Guided and bound by Fourth Circuit's analysis in Kadel, and with a barer record than the one before the Fourth Circuit there, the Court is compelled to find that the Executive Orders' effective ban on all gender-affirming care for those under nineteen by federally funded institutions is not substantially related to the important government interest of protecting children. As such, Plaintiffs are likely to succeed on the merits of their Equal Protection claim....

Last month, the court issued a nation-wide temporary restraining order in the case. (See prior posting.)  ACLU issued a press release announcing yesterday's decision.

Court Issues TRO Barring Cutoff of Funds to Institutions Offering Gender-Affirming Care to Minors

In PFLAG, Inc. v. Trump, (D MD, Feb. 14, 2025), a Maryland federal district court set out its reasons for issuing a nation-wide temporary restraining order barring enforcement of the sections of two Executive Orders that prohibit federal funding for institutions that provide gender affirming care for patients under 19 years of age. At issue are provisions in Executive Order 14168, titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government and in Executive Order 14187, titled Protecting Children from Chemical and Surgical Mutilation. The court said in part:

Defendants admit in the very first line of their response in opposition to the motion for a TRO that the President "issued two Executive Orders directing agencies to take steps, as permitted by law, to condition certain federal grant funding on his policy preferences."23 ECF 55, at 3. This is a clear violation of the Constitution as "attempt[s] [by the Executive Branch] to place new conditions on federal funds [are] an improper attempt to wield Congress's exclusive spending power and is a violation of the Constitution's separation of powers principles."....

Because the challenged portions of the Executive Orders are facially discriminatory on the basis of transgender identity, and therefore sex under Kadel and Bostock, in violation of Section 1557 of the ACA and Section 1908 of the PHSA, the Court finds that Plaintiffs are likely to succeed on the merits of their ultra vires statutory claim....

Defendants assert that the challenged portions of the Executive Orders are based on the important government interest of "protecting the physical and emotional well-being of youth."...  Defendants assert that the Orders are substantially related to this important government interest because "[ e ]vidence. abounds that treatments covered by the Protecting Children EO 'are dangerous and ineffective."'... Though Defendants might well have support for this argument, the en banc Fourth Circuit in Kadel rejected a similar claim by noting that "those criticisms do not support the notion that gender-dysphoria treatments are ineffective so much as still developing."... Plaintiffs are likely to succeed on the merits of their Equal Protection claim....

AP reports on the decision.

Evangelist Can Move Ahead with Free Speech Claim Against Officer Who Arrested Him at Pride Festival

In Cocchini v. City of Franklin, Tennessee, (MD TN, Feb. 6, 2025), a Tennessee federal district court held that plaintiff, a Christian evangelist, had successfully stated a claim for violation of his 1st Amendment free speech rights. Plaintiff was asked by a police officer to leave a Pride Festival after he began to share his Christian testimony with two women at a church booth.  When he refused to leave, he was arrested. He sued, contending that the police officer discriminated against him by impermissibly regulating his speech conducted in a public forum. The police office asserted a defense of qualified immunity. The court said in part:

Here, Cocchini has alleged facts plausibly demonstrating that the Park remained a public forum throughout Franklin Pride....

There are two competing stories for Cocchini’s exclusion from the Park.  Officer Spry says he removed Cocchini from the public forum, causing him to cease his peaceful invited religious speech, apparently for violating Tennessee’s criminal trespass law....  However, the Complaint alleges that Officer Spry told Cocchini on the day of his arrest, and under oath, that he arrested Cocchini because a Franklin Pride TN security event coordinator wanted him removed.....  Taking the allegations in the Complaint as true, Cocchini sufficiently asserts that the justification for his exclusion from the Park, and arrest, was based on the content of his speech....

If the arrest was to “avoid offense to gay, lesbian, or transgender individuals,” as the Complaint alleges, such an interest (compelling or not) is not narrowly tailored by arresting individuals like Cocchini who express religious views....

... [I]if as Cocchini alleges, Officer Spry arrested him “because of the content of his speech,” then he “acted in violation of the First Amendment in ways that should have been clear to a reasonable officer.” ... This is a disputed issue of fact such that “development of the factual record is [] necessary to decide whether [Officer Spry’s] actions violated clearly established law.” ...

The court however dismissed plaintiff's equal protection claim which was based only on the alleged violation of his 1st Amendment rights.

Differential School Bussing for Parochial School Students Does Not Violate Free Exercise or Equal Protection Clauses

In Swiech v. Board of Education for the Sylvania City School District, (OH App., Feb. 7, 2025), an Ohio state appellate court affirmed the dismissal of a suit brought by the mother of elementary school children. Plaintiff claimed that the hub-and-spoke bussing arrangement for transporting of children to Catholic elementary schools violates her free exercise and equal protection rights. Public school students were furnished direct home-to-school bus transportation. The court said in part:

The first step in analyzing an equal protection claim is determining the appropriate standard of review....  

... [B]ecause this case does not involve a fundamental right or a suspect class, rational basis review applies.

... [I]t is rational and reasonable to classify public school students separately from nonpublic and community school students based on the differences in how many students attend each school, where the students are located in relation to their school, and when the schools start and end....

... Swiech’s argument that she receives lesser governmental benefits as a consequence of the exercise of religion lacks nuance.  Swiech’s children receive different transportation not because she is exercising her religion, but because she chooses to send them to a nonpublic or community school.  All students residing in the School District who attend a nonpublic or community school are similarly transported regardless of whether they attend a religious or non-religious school. ...

In any event, we agree with the School District that its bussing plan does not have a coercive affect against Swiech in the practice of her religion.  While the bussing plan may impact Swiech’s and her children’s sleep schedules, work schedules, and medication schedules, it does not interfere with their ability to practice their religion.  Indeed, the School District’s bussing plan ensures that Swiech’s children are able to attend their chosen religious school on time every day.

U.S. Reverses Position in Transgender Case Already Argued Before Supreme Court

Last December, the U.S. Supreme Court heard oral arguments in United States v. Skrmetti. The case involves a challenge to a Tennessee statute prohibiting chemical, hormonal or surgical treatment of minors for gender dysphoria. The case began as a suit by a private party, but the United States then intervened and filed its own complaint challenging the constitutionality of the statute. After a decision by the 6th Circuit reversing a preliminary injunction against enforcement, both the United States and the private plaintiff filed petitions for certiorari. The Supreme Court granted review only in the United States' case. Now with a change of Administrations, the United States has changed its position and no longer challenges the Tennessee statute.  The United States on February 7 filed a letter (full text) with the Supreme Court, reading in part:

The Department has now determined that SB1 does not deny equal protection on account of sex or any other characteristic.  Accordingly, the new Administration would not have intervened to challenge SB1—let alone sought this Court’s review of the court of appeals’ decision reversing the preliminary injunction against SB1.

Nevertheless, the United States believes that the confluence of several factors counsels against seeking to dismiss its case in this Court.  The Court’s prompt resolution of the question presented will bear on many cases pending in the lower courts.  Since granting certiorari last June, the Court has received full briefing and heard oral argument, including from the private plaintiffs, who have participated in this Court as respondents supporting the United States at the merits stage and who remain adverse to the state respondents in a dispute that has not become moot.  Accordingly, the Court may resolve the question presented without either granting the private plaintiffs’ pending petition for a writ of certiorari, see L.W. v. Skrmetti, No. 23-466 (filed Nov. 1, 2023), or requesting further, likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit between the private plaintiffs and the state respondents.

AP reports on the government's action.

University Did Not Violate Constitution by Permitting Anti-Zionist Encampment

In Groveman v. Regents of the University of California, (ED CA, Feb. 4, 2025), a California federal district court dismissed a suit alleging that the University of California Davis participated in the denial of plaintiff's constitutional rights when it allowed a pro-Palestinian encampment to continue even though it violated University rules on camping and obtaining permits. Plaintiff who is Jewish and identifies as a Zionist was blocked by the encampment from walking through the campus. He was told that Zionists are not welcome and was struck by an umbrella. Rejecting plaintiff's equal protection claim, the court said in part:

Plaintiff’s allegations fall short of establishing even a causal connection between defendants’ actions and plaintiff’s exclusion from the encampment, let alone that defendants acted with discriminatory intent.... Nor does plaintiff allege any facts suggesting that the university treated Jewish individuals differently than the encampment participants; there is no indication that Jewish individuals sought to establish an encampment, or that if they had, the university would have rebuffed them or prevented them from engaging in comparable treatment of pro-Palestinian protestors....

Rejecting plaintiff's free exercise claim, the court said in part:

Plaintiff alleges that defendants “deprived [him] of the right to express his Jewish identity freely” by “allowing the encampment to thwart religious dialog[ue]” in violation of the Free Exercise Clause of the First Amendment....  It is not possible to draw a plausible inference that defendants’ actions (or inactions) had the effect of favoring or disfavoring any religion or burdening plaintiff’s religious exercise....

The court also concluded that defendants had qualified immunity. Plaintiff's claim under Title VI was dismissed for lack of standing because he was not connected with any University program that received federal funding. Finally, the court rejected plaintiff's Americans With Disabilities Act claim. While plaintiff had a mobility issue, the fact "that a single path preferred by plaintiff was not accessible does not plead a violation of Title II of the ADA."

9th Circuit: Hindu Out-of-Stater Lacks Standing to Challenge Ban on Caste Discrimination

In Bagal v. Sawant, (9th Cir., Jan. 21, 2025), the U.S. 9th Circuit Court of Appeals held that a practicing Hindu who lives in North Carolina lacks standing to challenge a Seattle, Washington Anti-Caste Discrimination Ordinance. The court said in part:

Appellant argues that the Ordinance violates the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment....

Appellant speculates that the Ordinance could be enforced against him on a future visit to Seattle for ordering a vegetarian meal or wearing a religious marker called a Mauli thread on his wrist.  But these activities are not prohibited by the Ordinance, and Appellant fails to demonstrate that engaging in them would subject him to a credible threat of prosecution....

Appellant argues that the Ordinance creates stigma toward the Hindu religion, which amounts to disapproval of Hinduism over other religions and causes Appellant to refrain from certain Hindu practices.... Appellant has offered no plausible connection between his decision to refrain from engaging in certain Hindu practices in North Carolina and a Seattle Ordinance that prohibits none of those activities....

Appellant has also not demonstrated that he has a geographical connection to the Ordinance sufficient for standing for an Establishment Clause claim. 

National Guard Officer Sues After Dismissal for His Religion-Based Anti-LGBTQ Views

Suit was filed last week in an Idaho federal district court by an Idaho National Guard officer who was removed from a command position that he had just assumed because of his Christian religious views on sexuality that he had expressed during his previous campaigns for mayor and state senator. The complaint (full text) in Worley v. Little, (D ID, filed 1/17/2025), reads in part:

74. The Investigating Officer stated, in his findings, that Major Worley had “well documented discriminatory views against the LGBTQ community” that “suggest an inability to uphold the values of equality, respect, and impartiality expected of a company commander.”...

75.... In addition to his unconstitutional and unconscionable findings as it relates to Major Worley’s religious beliefs, views, expression, and exercise, the Investigating Officer also recommended to Defendants that they institute a “No Christians in Command” Policy. ...

The complaint alleges that this violates plaintiff's free speech, free exercise and equal protection rights.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

University' Rescission of Agreement with Church Did Not Violate Equal Protection or Free Exercise Clauses

In Calvary Chapel Belfast v. University of Maine System, (D ME, Jan. 10, 2025), a Maine federal district court refused to issue a temporary restraining order requiring the University of Maine to move ahead with negotiations with Calvary Chapel for the sale to the Church of the University's satellite campus in Belfast, Maine, known as the Hutchinson Center. Originally the University awarded the Church the right to negotiate terms and conditions for the purchase. Competing bidders, as well as some in the community, objected to the award. The University rescinded the award and ultimately awarded the right to purchase to another bidder. The Church filed suit alleging Equal Protection and Free Exercise violations. Rejecting those claims, the court said in part:

The Church argues the comments of the public and the other bidders, combined with what the Church alleges were procedural anomalies in the System’s process, demonstrate the System made its decision to rescind its initial award to the Church because of the Church’s religious status and views, and therefore violated the Equal Protection Clause....

[T]he only evidence the Church produces that demonstrates religious bias comes wholly from parties outside the University of Maine System. However, ... rather than adopting the community’s animosity toward the Church, the System here specifically rejected such bias. The System, in its August 22, 2024 press release, responded to the comments expressing religious animosity as follows: “[t]he university cannot discriminate, including on the basis of religion. Doing so would be against the law and inconsistent with the university’s commitment to inclusion.”...

None of the Church’s cited authorities stand for the proposition that the Court can conclude solely from public opposition that the System violated the Equal Protection Clause for following its own stated procedures to rescind the award to the Church. The fact that there was religious animosity present in the community and even argued to the System as a basis for appeal cannot mean the System is locked into a decision that it determined would result in a substantial net financial loss....

The Church’s arguments that it will likely succeed on its Free Exercise Clause claim rely on the same arguments it makes in support of its Equal Protection Clause claim....

Suit Challenges Museum's Diversity Policy as Violative of Employee's Religious Beliefs

Suit was filed last week in a New York federal district court by an employee of the Genesee Country Museum who was fired from her managerial position because her religious beliefs were inconsistent with the Museum's Diversity, Equity, Acceptance and Inclusion Policy. The complaint (full text) in Berkemeir v. Genesee County Museum, (WD NY, filed 1/2/2025), alleges that plaintiff's dismissal violates her free exercise and free speech rights, the Equal Protection Clause, and Title VII of the 1964 Civil Rights Act as well as other statutes. The complaint specifically focuses on requirements to address individuals by their preferred pronouns, but also sets out broader objections, stating in part:

80. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that she is to “take no part in the unfruitful works of darkness,” but to “expose them.”... 

81. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that silence in the face of evil is evil itself....

84. Plaintiff also has the sincerely held religious belief that for her to fail to speak out against things she knows are wrong results in the eternal condemnation of her soul....

228. Plaintiff’s sincerely held religious beliefs that compelled her to view all people as created by God in His image and equally deserving of respect did not comport with Defendants’ newly minted program of requiring all employees to view white people as “born oppressors” and somehow undeserving of identical respect and treatment. 

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Good News Clubs Sue California School District for Access

Suit was filed yesterday in a California federal district court by Child Evangelism Fellowship alleging that a California school district has prevented Good News Clubs from meeting in district elementary schools. The complaint (full text) in Child Evangelism Fellowship NORCAL, Inc. v. Oakland Unified School District Board of Education, (ND CA, filed 12/11/2024), alleges in part:

1. For over two years, Defendant OUSD and its officials have unconstitutionally and impermissibly prohibited CEF from hosting its Good News Clubs in public elementary school facilities owned by OUSD. The Good News Club provides free moral and character training to students from a Christian viewpoint and strategically meets at public schools after school hours for the convenience of parents. CEF’s Good News Club has enriched the emotional, physical, and spiritual well-being of students across OUSD for over a decade. 

2. ... CEF was forced to temporarily end its Good News Club meetings in 2020 due to COVID-19 but sought to resume its meetings starting in January 2023. Despite having a long and storied history of providing after-school enrichment programs to students in OUSD, numerous schools within OUSD inexplicably denied the Good News Club access to use OUSD facilities while allowing numerous secular organizations and activities to resume meeting after school hours.  

3. CEF seeks a judgment declaring Defendants’ discriminatory use policies unconstitutional, both on their face and as applied, under the Free Speech, Establishment, and Free Exercise Clauses of the First Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. CEF also seeks preliminary and permanent injunctive relief ... together with damages....

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Teacher Sues After Being Suspended for Having Books With LGBTQ+ Characters in Her Classroom

 A third-grade teacher in the southern Ohio village of New Richmond filed suit last week in an Ohio federal district court seeking damages for the 3-day suspension imposed on her for having four books in her classroom's book collection that have LGBTQ+ characters in them.  The school claimed that the books violated the District's Policy 2240 on Controversial Issues in the Classroom. The complaint (full text) in Cahall v. New Richmond Exempted Village School District Board of Education, (SD OH, filed 12/2/2024), alleges in part:

12. Plaintiff Karen Cahall maintained these books in her classroom amongst over one hundred other books spanning a wide variety of subject matters in furtherance of her sincerely held moral and religious beliefs that that all children, including children who are LGBTQ+ or the children of parents who are LGBTQ+, deserve to be respected, accepted, and loved for who they are....

50. During the course of her employment with defendant New Richmond, other teachers, staff and administrators have publicly displayed insignias and symbols of their religious beliefs in the presence of students, including but not limited to Christian crosses worn as jewelry, that are more visible to students than the books identified herein, without any consequence....

70. New Richmond Board Policy No. 2240 is unconstitutionally vague ... because it fails to provide fair notice to plaintiff Karen Cahall and other teachers ... of what they can and cannot maintain in their classrooms....

81. By using New Richmond Board Policy No. 2240 to suspend plaintiff Karen Cahall ... based upon a perceived community objection to plaintiff Karen Cahall’s sincerely held moral and religious beliefs, defendant Tracey Miller unlawfully and with discriminatory intent determined that plaintiff Karen Cahall’s religious viewpoints and beliefs were unacceptable, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.....

87. By using New Richmond Board Policy No. 2240 to suspend plaintiff Karen Cahall ..., defendant Tracey Miller unlawfully and with discriminatory intent determined that plaintiff Karen Cahall’s moral and religious viewpoints and beliefs were unacceptable in comparison to the moral and religious viewpoints of others. in violation of the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution.

Cincinatti Enquirer reported on the lawsuit.

Supreme Court Will Hear Arguments Today on Tennesse Ban of Gender Affirming Medical Treatment for Minors

The U.S. Supreme Court this morning will hear oral arguments in United States v. Skrmetti. The case involves a challenge to Tennessee's ban on chemical, hormonal and surgical treatments of minors for gender dysphoria. In the case, the U.S. 6th Circuit Court of Appeals rejected Equal Protection and Due Process challenges to the law. A central issue in today's arguments will be whether transgender classifications trigger heightened scrutiny. SCOTUSblog has an extensive discussion of the issues in the case. More than 80 amicus briefs have been filed in the case. Links to all of them and additional pleadings in the case are available at the SCOTUSblog case page for the case.

Oral arguments will be streamed live at this link beginning at 10:00 AM. Argument audio will be archived at this link. A written transcript of the oral arguments will be available later today at this link.

Suit Challenging Anti-Zionist Proposed Curriculum Is Dismissed

In Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, (CD CA, Nov. 30, 2024), a California federal district court dismissed both for jurisdictional reasons and on the merits a suit by plaintiffs who were Jewish Zionists against a group that developed a set of teaching materials that the group hoped Los Angeles Public Schools would adopt. The court said in part:

According to plaintiffs, the challenged curriculum "denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]"... and is designed "to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]"... Plaintiffs allege there is "rank discrimination embedded in the LESMC," ... because the challenged curriculum, among other things, "includes statements that the existence of the State of Israel is based on ethnic cleansing and land theft, apartheid and genocide" and that "Zionism is distinct from Judaism."... Because the challenged curriculum contains anti-Zionist material, plaintiffs allege that the curriculum is antisemitic.,,,

The court held that plaintiffs' claims were not ripe for judicial review and that plaintiffs lacked standing to bring their claims. It went on to also reject plaintiffs' equal protection and free exercise challenges on additional grounds. It held first that the defendants other than the school district were not state actors for purposes of the 14th Amendment. It went on to hold:

... [I]t is clear that the [complaint] is a direct "attack on curricula" — and "absent evidence of unlawful intentional discrimination, parents are not entitled to bring Equal Protection claims challenging curriculum content."... In short, plaintiffs' equal protection claims under both the California and United States constitutions must be dismissed....

In effect, the only hardship plaintiffs allege is that the existence of the challenged curriculum — and its possible adoption — offends them. But mere offense is insufficient to allege a burden on religious exercise....

In short, plaintiffs' claim that the challenged curriculum violates the Free Exercise Clause because it is intended "to suppress public expression of, and public support for, Zionist beliefs and to prevent Zionists from acting on their sincerely held religious belief[,]" ... must be dismissed, as plaintiffs have not adequately alleged a substantial burden on their religious exercise or practice.

The court also rejected claims under Title VI and the California Education Code. It then concluded:

... [I]t must also be noted that significant First Amendment concerns underlie plaintiffs' claims and requested relief.... In effect, plaintiffs seek to litigate the propriety and legality of a potential curriculum with which they disagree. Their claims thus conflict with the First Amendment in several respects, and are largely barred on that basis as well.

Various state law claims were also stricken under California's anti=SLAPP statute.

Noticias Newswire reports on the decision.

Parents Sue California High School Alleging Long History of Tolerating Antisemitism

Suit was filed last week in a California federal district court by parents of six high school students in the Sequoia Union High School District charging the high school with tolerating antisemitism expressed by students and teachers.  The complaint (full text) in Kasle v. Puttin, (ND CA, filed 11/15/2024), alleges in part:

SUHSD has a long history of tolerating casual antisemitism on its campuses.  Students and faculty have openly joked about Nazis and the Holocaust, while certain teachers have peddled antisemitic falsehoods about Middle East history without facing consequences.  District leadership has consistently turned a blind eye to such behavior.  SUHSD’s antisemitism problem worsened significantly after October 7, 2023, when Hamas—a U.S.-designated terrorist organization—invaded southern Israel and then mutilated, raped, and murdered more than 1,200 people.  Although quick to address other global injustices, SUHSD remained conspicuously silent about this historic massacre of Jews, contradicting the District’s professed commitment to equity....

The 64-page complaint alleges violation of Title VI, of the 1st and 14th Amendments as well as of parallel provisions of California law and asks for an injunction in part:

prohibiting Defendants’ discriminatory and harassing treatment of Plaintiffs in violation of Plaintiffs’ constitutional and statutory rights; 

prohibiting the District, its employees, agents, and representatives from engaging in any form of antisemitic behavior or conduct, including, but not limited to, verbal, written, or physical actions that demean, harass, or discriminate against individuals based on their Jewish identity or their identification with and commitment to Israel;

ordering the District to adopt and implement a clear and comprehensive policy specifically addressing antisemitism, as defined by the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism....

It also asks the court to appoint a Special Master to monitor the district's implementation of policies against antisemitism. 

Ropes & Gray issued a press release announcing the filing of the lawsuit. 

Certiorari Denied in Challenge To West Virginia's Ban on Transgender Girls on Girls' Sports Teams

The U.S. Supreme Court yesterday denied review in West Virginia Secondary School Activities Commission v. B. P. J., (Docket No. 24-44, certiorari denied 11/18/2024). (Order List.)  In the case the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that the West Virginia Save Women's Sports Act violates Title IX on the facts of the case before it and remanded for further findings on whether the Act as applied to transgender girls violates the Equal Protection Clause.

UPDATE: The certiorari petition which the Court acted on here only raised the question of whether the Secondary School Activities Commission is a state actor. A cert. petition raising the Title IX and Equal Protection issues is still pending before the Court.