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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CALIFORNIA PARENTS FOR the 

EQUALIZATION OF EDUCATION 

MATERIALS, et al.,

Plaintiffs,

v.

Tom TORLAKSON, et al.,

Defendants.

Case No. 17-00635 CRB (JSC)

ORDER RE: PLAINTIFF’S MOTION 

TO COMPEL

Re: Dkt. No. 198

Plaintiffs challenge the framework of the California public school curriculum for sixth 

grade students addressing Hinduism (“the Framework”). Following the district court’s rulings on 

Defendants’ motion to dismiss (Dkt. No. 119), and Plaintiff’s motion for leave to amend (Dkt. No. 

204), the sole claim remaining is Plaintiff’s Establishment Clause claim on the second prong of 

the Lemon test. Now pending before the Court is a discovery dispute joint letter brief regarding 

Plaintiffs’ request for certain electronic discovery. (Dkt. No. 198.) In particular, Plaintiffs seek all 

of Defendants’ records as to the Framework and Hinduism regardless of whether the public would 

have been aware of the records or their content. After carefully considering the parties’ letter brief 

and attached exhibits, as well as the history of this case, the Court denies Plaintiffs’ request. 

Plaintiffs have failed to show that the voluminous documents they seek tend to prove or disprove 

the claim remaining in this lawsuit. Further, any slight relevance is outweighed by the burden of 

production. 

DISCUSSION

The issue in Plaintiffs’ remaining Establishment Clause claim is whether the government 

action—the Framework addressing the Hindu religion—“has the principal or primary effect of 
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United States District Court

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advancing or inhibiting religion.” California Parents for the Equalization of Educational 

Materials (“CAPEEM”) v. Torlakson, 267 F. Supp. 3d 1218, 1230 (N.D. Cal. 2017). “Courts 

must analyze the primary effect from the perspective of an observer who is both informed and 

reasonable.” Id. In the elementary school context, such as here, “the primary effect prong of the 

Lemon test asks whether an ‘objective observer in the position of an elementary school student 

would perceive a message of . . . disapproval [of religion].” Id. Because Plaintiffs are challenging 

the content of the sixth grade curriculum, “the Court analyzes the second Lemon prong from the 

perspective of a reasonable sixth grader.” Id.

In connection with this claim, Defendants have produced all documents that were “ever

uploaded, published, publicly displayed, or otherwise made available for public observation,”

including audio and video recordings of the relevant public meetings. (Dkt. No. 198-9 at ¶ 3.) 

Defendants contend that this is all an objective observer could have perceived and thus no more is 

relevant, or at least reasonable to produce. Plaintiffs insist that Defendants must produce more. 

Rather than identify particular documents that they believe are relevant, however, Plaintiffs appear 

to contend that all documents responsive to their 14 document requests (Dkt. No. 198-1) should be 

produced, regardless of whether an objective observer could have been aware of the documents. 

The Court denies Plaintiffs’ demand.

The requested documents are not relevant to the claim at issue in this case. See Fed. R. 

Civ. P. 26(b)(1). For example, Request No. 4 seeks:

All electronically stored information relating to the Framework that includes one

or more of the following terms: Hindu, Hinduism, Christ, Christian, Christianity, Jesus, 

New Testament, Jew, Jews, Jewish, Judaism, Moses, Exodus, King David, timeline, time 

line, Islam, Muslim, Muslims, Muhammad, Islamic, Sikh, Sikhs, Sikhism, Religion, 

Religions, Religious, Aryan, caste, AIT, AMT, Witzel, Kenoyer, Indo-European, IndoEurasian, Steve Farmer, India, Indian, Indians, South Asian, South Asians, and SAFG.

(Dkt. No. 198-1 at 4.) Plaintiffs offer no explanation as to how this wide swath of electronic 

discovery tends to prove or disprove how an objective observer would perceive the Framework’s 

discussion of Hinduism if it was never publicly available. Instead, they broadly insist that it is 

relevant to the “history and context” of the challenged government action and therefore 

discoverable. (Dkt. No. 198 at 2 n.4) (citing McCreary County v. ACLU, 545 U.S. 844, 862 
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United States District Court

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(2005); Trunk v. City of San Diego, 629 F.3d 1099, 1118 (9th Cir. 2011)). The “specific sequence 

of events” referred to in McCreary, however, were “the traditional external signs that show up in 

the text, legislative history, and implementation of the statute, or comparable official act.” 

McCreary, 545 U.S. at 862 (emphasis added) (internal quotation marks and citation omitted). 

Plaintiffs have the “external” signs; they seek internal information. Nothing in McCreary supports 

their request. To the contrary, McCreary emphasized that the court’s inquiry on an Establishment 

Clause claim does not involve “psychoanalysis of a drafter’s heart of hearts.” Id. Similarly, in 

Trunk, the “history and setting” considered by the Ninth Circuit included the Memorial’s long 

history of religious use and symbolism—all publicly available facts. 629 F.3d at 1118-1120. 

Plaintiffs’ reliance on Jewish War Veterans of America Inc. v. Gates, 506 F. Supp. 2d 30 

(D.D.C. Sep. 18, 2007), fails to persuade this Court otherwise. That case was not limited to a 

Lemon test prong two Establishment Clause claim; instead, the “foremost” issue was prong one—

legislative purpose. Id. at 46. Here, in contrast, the district court has already ruled that the 

California framework has a secular purpose as a matter of law. CAPEEM, 267 F. Supp. 3d at

1228. Thus, discovery would have necessarily been broader in Jewish War Veterans. For 

example, the Jewish War Veterans court addressed whether particular emails were relevant to the 

excessive entanglement prong of the Lemon test. 506 F. Supp. 2d at 49. The district court here 

has ruled that there was no excessive entanglement. CAPEEM, 267 F. Supp. 3d at 1229-30. 

To justify their broad document requests, Plaintiffs have identified a few issues in the 

“history and context” of the Framework’s adoption. First, they contend Defendants told the public 

that they would select experts through the contracting process conducted by the California 

Department of Education, but instead chose to solicit handpicked professors who would 

supposedly provide reports as public comment. From that history and context, Plaintiffs contend 

that “[a] reasonable observer would question – and Plaintiffs are entitled to know – whether the 

process of choosing and consulting with experts behind the scenes was designed to manipulate the 

content of the Framework in a way that would deride Hinduism and not be subject to public 

scrutiny.” (Dkt. No. 198 at 3 (emphasis added).) Plaintiffs never explain and do not cite any 

authority as to why they “are entitled to know.” Further, regardless of whether the process was 

subjectively designed to manipulate the Framework’s content, the impression on the objective 
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observer would be the same.

Second, Plaintiffs complain that Defendants solicited input from the South Asian Faculty 

Group in violation of Defendants’ own deadlines and the regulations governing public comment. 

(Id.) Plaintiffs may make this argument to the district court, but again they still do not explain 

how reviewing documents addressing the solicitation of the Group would tend to prove or 

disprove the Framework’s effect on an objective observer who had no access or knowledge of the 

content of those documents. The same is true as to Plaintiffs’ emphasis that two members of the 

South Asian Faculty Group were also associated with the California History-Social Science 

Project, the Framework’s primary author. Plaintiffs’ inquiry is not relevant.

The Court is not ruling that records that were not publicly available are never discoverable 

in connection with a Lemon test prong two Establishment Clause claim. It is instead ruling that 

Plaintiffs have not identified any such records that are relevant and should be discoverable. This 

conclusion is further supported by the burden Plaintiffs’ request places on Defendants. (Dkt. No. 

198-9.) It is not reasonable, nor proportional to the needs of this narrowed case, to require 

Defendants to produce the requested documents in the hope that something useful may come up. 

Defendants are thus similarly not required to produce privilege logs for these documents.

This Order disposes of Docket No. 198.

Dated: November 13, 2018

JACQUELINE SCOTT CORLEY

United States Magistrate Judge