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Reply Brief in Support of Motion to Maintain Confidential Designation 

(17-cv-0635-CRB)

GESINA SEILER CARSON

Assistant Attorney General of Wisconsin

State Bar No. 1055162

Post Office Box 7857

Madison, Wisconsin 53707-7857

Telephone: (608) 266-1672

Fax: (608) 267-8906

E-mail: carsongs@doj.state.wi.us

MIGUEL A. NERI

Deputy Attorney General of California

State Bar No. 132875

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612-0550

Telephone: (510) 879-0755

Fax: (510) 622-2270

E-mail: Miguel.Neri@doj.ca.gov

Attorneys for Third Party Jonathan Kenoyer

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CALIFORNIA PARENTS FOR THE 

EQUALIZATION OF EDUCATIONAL 

MATERIALS, et al.,

Plaintiffs, Case No. 17-CV-0635-CRB

v. REPLY BRIEF IN SUPPORT OF

MOTION TO MAINTAIN 

CONFIDENTIAL DESIGNATION

TOM TORLAKSON, et al.,

Defendants.

Judge: Charles R. Breyer

Action Filed: June 14, 2018

REPLY BRIEF IN SUPPORT OF JONATHAN KENOYER’S MOTION TO RETAIN

CONFIDENTIAL DESIGNATION OF RECORDS PURSUANT TO STIPULATED 

PROTECTIVE ORDER (DKT. 130)

Case 3:17-cv-00635-CRB Document 149 Filed 07/03/18 Page 1 of 4
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Reply Brief in Support of Motion to Maintain Confidential Designation 

(17-cv-0635-CRB)

Plaintiffs served Third Party Jonathan Mark Kenoyer with a subpoena for documents. 

Kenoyer is a Professor of Anthropology at the University of Wisconsin (“UW”) who focuses on 

the Indus Civilization (Pakistan and India). The documents requested were for all communications 

among the South Asia Faculty Group (SAFG) relating to “Framework” and the California State 

Education Agency and Professor Kenoyer’s 2005 research paper entitled “Cultures and Traditions 

of the Indus Traditions.” UW ultimately produced 800+ documents in response and designated a 

portion of those documents “Confidential” pursuant to the Protective Order entered in this case 

(Dkt. 130.) Plaintiffs have challenged the confidential designation of 67 of these documents, which 

have been filed “Under Seal.” 

The 67 Confidential documents are communications among faculty. They are confidential 

and protected by academic freedom. Plaintiffs argue that the communications are political, made 

“by the professors to advance their partisan views and keep out the input of Hindus.” (Pl. Opp. Br. 

At 4.) This argument is without merit.

First, the mere fact that scholars are providing views in a textbook approval process does 

not equate to scholars taking sides in a partisan political process. Second, scholars seeking to 

persuade others regarding their research does not remove the scholarly component of these 

communications. Kenoyer has studied his topic of scholarship in a way that very few others have. 

When he draws conclusions, he does so because he believes those conclusions are supported by 

the archeological and anthropological evidence he has uncovered over decades of site work and 

study. It is Kenoyer’s duty as a faculty member to share his knowledge with fellow academics and 

beyond. The fact that he and other scholars want to share their conclusions effectively does not 

Case 3:17-cv-00635-CRB Document 149 Filed 07/03/18 Page 2 of 4
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Reply Brief in Support of Motion to Maintain Confidential Designation 

(17-cv-0635-CRB)

make what they are doing political or agenda-driven. Scholars may state and even advocate for 

their positions in the public sphere; this is a part of the public service component of their role. It 

certainly does not render their scholarly conclusions per se “political” simply because another 

person may disagree. Scholarship is not only new hypotheses and secret unpublished data guarded 

by universities and industry. Rather, communicating ideas to others is an important aspect of 

scholarship. And that is the process undertaken by these scholars engaged in the email 

correspondence at issue here. 

Kenoyer incorporates by reference all arguments made in his initial brief. To reiterate, 

Kenoyer is not aware of any possible benefit to the Plaintiffs in this litigation through the removal 

of the “Confidential” designation. The sole reason appears that Plaintiffs simply do not agree with 

the designation and want this Court’s permission to widely disseminate them. The additional fact 

that Plaintiffs maintain a website with a section devoted to posting documents and emails obtained 

from legal proceedings points to this ulterior motive. See http://capeem.org/legal-documents. This 

page contains emails from as far back as 2008. The potential for the chilling of scholarly 

collaboration significantly outweighs any possible benefit to this litigation from removal of the 

“Confidential” designation. 

The consequence of lifting the confidential designation of the records will result in the 

inability of faculty and their collaborators to communicate freely and make advancements in their 

respective fields. Kenoyer respectfully requests this Court grant his Motion and retain the 

“Confidential” designation of the records contained in Exhibit 2. 

Case 3:17-cv-00635-CRB Document 149 Filed 07/03/18 Page 3 of 4
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Reply Brief in Support of Motion to Maintain Confidential Designation 

(17-cv-0635-CRB)

Dated: July 3, 2018.

Respectfully submitted,

/s/Gesina S. Carson

GESINA SEILER CARSON

Assistant Attorney General

State Bar #1055162

Attorney for Third Party Jonathan Kenoyer

Case 3:17-cv-00635-CRB Document 149 Filed 07/03/18 Page 4 of 4