A FEDERAL JUDGE on Wednesday sharply questioned the attorney seeking a preliminary injunction to stop the enactment of an antisemitism law that the state Legislature passed in October.
While acknowledging “great respect” both for the public school teachers’ desire to address complex issues involving the Israeli-Palestinian conflict and the state’s challenge to ensure a safe environment without discrimination for Jewish students, U.S. District Court Judge Noël Wise did not issue a ruling during a hearing in San Jose.
Set to take effect on Jan. 1, Assembly Bill 715 would reinforce current anti-discrimination laws that ban biased instruction and professional development, inaccurate materials, and discriminatory school activities. It would also create an Office of Civil Rights and an Antisemitism Prevention Coordinator, who would develop antisemitism resources and strategies.
Advocated by the California Legislative Jewish Caucus with the support of other ethnic and racial caucuses, AB 715 responds to rising incidents of antisemitism in California schools and complaints by Jewish parents that their children have been subjected to a hostile environment fostered by teachers with ideological, one-sided views of the war in Gaza. The California Department of Education has verified some of the complaints; other complaints remain under investigation or are in court.
Contrasting complaint
Attorney Jenin Younes, the national legal director at the American-Arab Anti-Discrimination Committee, flipped the argument at the hearing, stating that AB 715’s failure to define antisemitism would chill discussion of the conflict, creating unconstitutional viewpoint discrimination and violating teachers’ First Amendment rights. It would also violate due process protections against sanctions imposed without transparent rules, she said.
“Teachers must have leeway to do their jobs to encourage open discourse that is important for creating a learning environment,” said Younes, who is representing four California public school teachers, the organization LA Educators for Justice in Palestine, and three public school students whose ability to learn fully would be restricted by the new law, the motion contends.
“Teachers must have leeway to do their jobs to encourage open discourse that is important for creating a learning environment.”
Attorney Jenin Younes, representing public schools
The state can set restrictions on curriculum, Younes said, “but the Supreme Court has never held that teachers are government mouthpieces,” she said. “A school board has the authority to prescribe curriculum but not to suppress views within that curriculum.”
But suppose a curriculum is silent on the war in Gaza, what can teachers teach? Wise asked.
“Teach multiple points of view. Human rights organizations say Israel is committing genocide; allow students to make their own interpretation,” Younes responded. “That is what learning is all about.”
Government’s speech prevails
Wise had fewer questions for Deputy Attorney General Andrew Edelstein, the defense attorney. He was concise and unambiguous in dismissing Younes’ First Amendment claims. Teachers have no basis for asserting First Amendment rights in the classroom, he said.
“Government speech is not bound by First Amendment rights over instruction and content,” Edelstein said. Government — whether the Legislature, the State Board of Education or local school boards — determines curriculum and instruction.
“Can a district require only a single viewpoint?” Wise asked.
“It is not a violation of teachers’ First Amendment right to do so,” Edelstein said. “There is no First Amendment right in the classroom. Chill is not an injury.”
“But teachers have legitimate and serious concerns,” Wise interjected. “Subjects will come up. Administrators are confused about directions. Teachers are searching for what to do.”
“The (Antisemitism Prevention) Coordinator will answer questions; meanwhile, the system is in place as to what teaching is discriminatory. Nothing in AB 715 changes the definition of discrimination that applied yesterday,” Edelstein said.
Biden’s antisemitism policy at issue
Wise also pressed Younes on that latter point. Her answer was the law’s reference to former President Joe Biden’s National Strategy to Counter Antisemitism in the preamble and another section.
The 2023 strategy includes the International Holocaust Remembrance Alliance’s definition of antisemitism. The definition cites examples of antisemitism: enduring anti-Jewish tropes, Holocaust denial, and applying a double standard to Israel while ignoring criticism of other nations.
By including the definition, Younes said, “the Biden strategy surreptitiously conflates anti-Zionism with antisemitism.”
But, Wise said, AB 715 contains no reference connecting anti-Zionism and antisemitism. The law refers to the Biden strategy only as “a basis” for helping the antisemitism coordinator identify and strategize antisemitism, she pointed out.
“There is a hot debate about what constitutes antisemitism,” Younes said. “It’s one option among many others. There’s a need for alternatives, too.”
Pro-Palestinian groups are likely to lobby to delete any reference to the Biden strategy from a bill with cleanup language for AB 715 that the authors promised to propose early in 2026. There’s no indication the authors will agree.
Battle over contrasting precedents
Younes and Edelstein each cited decisions of the U.S. Court of Appeals for the Ninth Circuit, which governs California courts, to support their cases.
Younes referred to the 2011 decision C.F. v. Capistrano Unified School District, which concluded that teachers should “foster critical thinking skills and develop their analytical abilities. … We must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.”
Edelstein pointed to Robert Downs v. Los Angeles Unified School District, which affirmed the government’s authority to determine the limits of a teacher’s speech in school. In that 2000 decision, the court ruled that the district could require a high school teacher to take down his bulletin board condemning LGBT conduct as immoral while the school encouraged other bulletin boards celebrating gay pride.
Wise will have to review these and other cases cited in briefs for precedent to guide her ruling. And she will have to weigh whose rights, Jewish students or their teachers, most need protecting.
“You’ve given me a lot to think about,” she told the attorneys.
This story originally appeared in EdSource.
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