Case No. 17-cv-00635-CRB State Defendants’ Reply Re: Third Party’s 

Motion to Retain Confidentiality Designation

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AMY BISSON HOLLOWAY, State Bar. No. 163731

General Counsel

EDMUNDO R. AGUILAR, State Bar No. 136142 

Assistant General Counsel

TODD M. SMITH, State Bar No. 170798

Assistant General Counsel

THOMAS H. PROUTY, State Bar No. 238950

Deputy General Counsel

California Department of Education

1430 N Street, Suite 5319

Sacramento, California 95814

Telephone: 916-319-0860

Facsimile: 916-319-0155

tprouty@cde.ca.gov

Attorneys for the State Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

CALIFORNIA PARENTS FOR THE 

EQUALIZATION OF EDUCATIONAL 

MATERIALS, et al.,

Plaintiffs,

v.

TOM TORLAKSON, in his official capacity as 

State Superintendent of Public Instruction and 

Director of Education for the California Department 

of Education, et al.,

Defendants.

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Case No. 17-cv-00635-CRB

THE STATE DEFENDANTS’ REPLY RE: 

THIRD PARTY’S MOTION TO RETAIN 

CONFIDENTIAL DESIGNATION OF 

RECORDS

Hearing Date: August 16, 2018

Time: 11:00 a.m.

Courtroom: F (15th Floor)

Magistrate Judge Jacqueline Scott Corley

Case 3:17-cv-00635-CRB Document 150 Filed 07/03/18 Page 1 of 5
Case No. 17-cv-00635-CRB 1 State Defendants’ Reply Re: Third Party’s

Motion to Retain Confidentiality Designation

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I. INTRODUCTION

The State Defendants1 do not oppose Jonathan Kenoyer’s Motion to Retain Confidential 

Designation of Records (Dkt. 141) (the “Motion”). And if Plaintiffs’ Opposition had not argued that 

the subject records were relevant to the lone remaining issue in this case, then the State Defendants 

would have been content to sit this dispute out. However, Plaintiffs do argue relevance in their 

Opposition. (Opp. at 7:13-25.) This is problematic, because the Plaintiffs have been actively avoiding 

bringing a discovery dispute with the State Defendants involving relevance and the scope of discovery

(among other things) before the Court for several weeks – opting instead to issue more than a dozen 

subpoenas attempting to extract irrelevant documents from third parties who may be less attuned to the 

legal issue and the scope of discovery in this case. The State Defendants are concerned that Plaintiffs 

seek a ruling from the Court touching on relevance and the scope of discovery, without adequate 

briefing, and without hearing from the State Defendants. Plaintiffs’ theory about relevance and the 

scope of discovery in this case is wrong – and the only case that Plaintiffs have ever cited to support 

their theory (McCreary) actually strongly contradicts it.

II. THE SOLE LEGAL ISSUE IN THE CASE

Plaintiffs filed this lawsuit on February 8, 2017. The Complaint alleged claims under the Due 

Process Clause, Free Exercise Clause, Equal Protection Clause and Establishment Clause of the United 

States Constitution. The State Defendants moved to dismiss, and on July 13, 2017, the Court entered 

its Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss (“Dismissal Order”). 

(Dkt. 119.) The Dismissal Order dismissed Plaintiffs’ Due Process, Equal Protection and Free Exercise 

claims with prejudice. (Dkt. 119 at 4:25 – 5:4.) Analyzing the remaining Establishment Clause claim 

under the three-prong “Lemon test,” the Court rejected Plaintiffs’ claims based on alleged violations of 

 

1 The State Defendants are the following defendants, sued only in their official capacity: Tom 

Torlakson, in his official capacity as State Superintendent of Public Instruction and Director of 

Education for the California Department of Education (“CDE”); Tom Adams, in his official capacity as 

Deputy Superintendent of the Instruction and Learning Support Branch of the CDE; Stephanie 

Gregson, in her official capacity as Director of the Curriculum Frameworks and Instructional Resources 

Division of the CDE; and Michael Kirst, Ilene Straus, Sue Burr, Bruce Holaday, Feliza I. Ortiz-Licon, 

Patricia Ann Rucker, Nicolasa Sandoval, Ting L. Sun, and Trish Boyd Williams, each in their official 

capacity as a member of California’s State Board of Education.

Case 3:17-cv-00635-CRB Document 150 Filed 07/03/18 Page 2 of 5
Case No. 17-cv-00635-CRB 2 State Defendants’ Reply Re: Third Party’s

Motion to Retain Confidentiality Designation

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the first and third prongs test (i.e., secular purpose and excessive entanglement). (Dkt. 119 at 9:10 –

13:19.) That left only the second prong – whether the primary effect of the SBE’s adoption of the 

Standards and Framework was the message that the SBE disapproves of Hinduism. (Dkt. 119 at 13:20 

– 16:8.)

III. RELEVANCE AND THE SCOPE OF DISCOVERY

The scope of discovery only includes non-privileged matter that is “relevant to any party’s 

claim or defense” and “proportional to the needs of the case.” Fed. R. Civ. P. 26(b).

The “primary effect” prong presents one narrow, objective inquiry: whether the hypothetical 

reasonable observer in the community would conclude that the primary effect of the State Board of 

Education’s (“SBE”) adoption of history content standards in 1998 and/or a history curriculum 

framework in 2016 is the message that the state disapproves of Hinduism. (Dkt. 119 at 4:25 – 5:4, and 

9:10 – 16:8.) Undisclosed intent, non-public documents, and particular individuals’ lay or expert 

opinions are irrelevant. See, e.g., Alvarado v. City of San Jose, 94 F.3d 1223, 1232 (9th Cir. 1996) 

(recognizing that the reasonable observer is not an expert on esoteric matters and cannot “be turned into 

one by any publicity generated by plaintiff’s lawsuit.”); Lynch v. Donnelly, 465 U.S. 668, 691-92 

(1984) (O’Connor, concurring) (“What is crucial is that a government practice not have the effect of 

communicating a message of government endorsement or disapproval of religion. It is only practices 

having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or 

public perception, to status in the political community.”); California Parents for Equalization of 

Educational Materials v. Noonan, 600 F. Supp. 2d 1118 (E.D. Cal. 2009) (expert testimony not 

relevant or useful); McCreary County v. ACLU, 545 U.S. 844, 863 (2005) (“If someone in the 

government hides religious motive so well that the ‘objective observer, acquainted with the text, 

legislative history, and implementation of the statute,’ cannot see it, then without something more the 

government does not make a divisive announcement that in itself amounts to taking religious sides.”) 

Although the State Defendants have produced over eighteen-thousand (18,000+) pages of 

documents, plus recordings of relevant public meetings – (essentially everything that even the most 

attentive observer in the community could have observed) – Plaintiffs have been seeking private, non-

///

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Case No. 17-cv-00635-CRB 3 State Defendants’ Reply Re: Third Party’s

Motion to Retain Confidentiality Designation

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public communications that never became part of the mix of public information available to the 

reasonable observer.

Plaintiffs have never articulated the relevance of the private communications that they seek, 

other than through a general reference to the relevance of “history and context” discussed in McCreary 

County v. ACLU, 545 U.S. 844 (2005). (See Opp. at 7:19-22; see also Dkt. 134 at 4: Plaintiffs’ portion 

of the parties’ Joint Case Management Statement, citing McCreary.) However, the “history and 

context” considered in McCreary was the reasonably known and shared history of the community, not 

the previously undisclosed content of private communications uncovered by the plaintiffs only through 

post-lawsuit fishing expeditions. In fact, McCreary (which was primarily about the “secular purpose” 

prong) forcefully supports the State Defendants’ position. McCreary’s main point was that the secular 

purpose prong should not be abandoned as a hopeless attempt to discover state officials’ inner psyches, 

because it is properly determined only through examining “openly available data” such as the “text, 

legislative history, and implementation” of the law. 545 U.S. at 863. The phrase “history and context” 

was used later in the case only in rejecting the government’s secondary argument that the secular 

purpose inquiry should have been based only on its latest public enactment and display, which tried to 

cure problems with its earlier original and revised public enactments and displays. Id. at 866.

IV. HOWEVER THE COURT DISPOSES OF THE INSTANT MOTION, IT 

SHOULD BE MINDFUL OF HOW PLAINTIFFS MAY ATTEMPT TO 

USE ANY RULING IN CONNECTION WITH OTHER DISPUTES 

THEY HAVE DELAYED BRINGING TO THE COURT

It is better for the merits – and not tactics – to determine how disputes are resolved. The State 

Defendants are concerned that Plaintiffs seek to use a ruling on this motion to manipulate disputes with 

others that they have delayed bringing to the Court. (This concern was only heightened by Plaintiffs’ 

refusal to serve a copy of their sealed Opposition on the State Defendants’ counsel on the ground that 

the standard protective order entered in this case prohibited that, despite the fact that the State 

Defendants’ counsel had signed the protective order and received the underlying confidential 

documents from the producing party.)

Since January 2018, there has been a discovery dispute between Plaintiffs and the State 

Defendants involving relevance, the scope of discovery, undue burden, the legislative privilege and the 

Case 3:17-cv-00635-CRB Document 150 Filed 07/03/18 Page 4 of 5
Case No. 17-cv-00635-CRB 4 State Defendants’ Reply Re: Third Party’s

Motion to Retain Confidentiality Designation

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deliberative process privilege. After months of substantial meet and confer efforts, it was the State 

Defendants that finally filed a Notice of Discovery Dispute on April 25, 2018. (Dkt. 131.) That 

prompted the Court to issue an Order of Reference to Magistrate Judge on April 30, 2018. (Dkt. 132.) 

The parties summarized their dispute in a Joint Case Management Conference (Dkt. 134), and at the 

May 11th conference, Judge Breyer set this case for trial for December 10, 2018 – two-and-a-half 

months before either party had proposed. (See Dkt. 135 – text only entry). Initially, Plaintiffs seemed 

willing to submit the parties’ dispute through the prescribed 5-page joint letter process – advising on 

May 24 that Plaintiffs would be providing their portion on the joint letter “next week” and that they 

believed a favorable ruling would likely cause them to “seek additional time for discovery that will 

impact the trial date.” But Plaintiffs’ portion of the joint letter never came. On May 30th, the State 

Defendants advised that they were prepared to submit a joint letter, and they even sent over a template 

for the joint letter that day to expedite the process. However, Plaintiffs’ counsel replied that day: “I 

haven't been able to focus on this, although I know I need to very soon.” Five weeks later, Plaintiffs 

still have not moved on that dispute. Instead, they have issued a slew of subpoenas seeking documents 

from third parties, including several university professors. Thus, it appears that Plaintiffs have decided 

that it is more strategic to press their unsupported discovery positions against third parties (who may 

not understand the legal issue and scope of discovery in this case) than the State Defendants (who can 

present cogent and thoroughly researched arguments contrary to Plaintiffs’ positions). The State 

Defendants’ main concern is that Plaintiffs’ delay tactics do not enable it to twist any ruling on the 

instant motion as a precedential or generally applicable ruling on relevance and the scope of discovery 

based on one-sided briefing for a de facto victory on other disputes.

Dated: July 3, 2018 Respectfully submitted,

AMY BISSON HOLLOWAY

General Counsel

EDMUNDO R. AGUILAR

Assistant General Counsel

TODD M. SMITH

Assistant General Counsel

By: /s/ Thomas Prouty

THOMAS PROUTY

Deputy General Counsel

Attorneys for the State Defendants

Case 3:17-cv-00635-CRB Document 150 Filed 07/03/18 Page 5 of 5