Reply Brief — California Parents for the Equalization of Educational Materials, Petitioner v. Tom Torlakson, et al.

No. 20-1137

IN THE

Supreme Court of the United States

___________

CALIFORNIA PARENTS FOR THE EQUALIZATION OF

EDUCATIONAL MATERIALS; VISHNUKUMAR THUMATI,

individually and as parent and next friend of P.T. and

N.T.; and SHAILESH SHILWANT, individually and as

parent and next friend of P.S. and P.S.S.,

Petitioners,

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.,

Respondents.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

___________

REPLY BRIEF FOR PETITIONERS

___________

April 1, 2021

CARTER G. PHILLIPS*

PAUL J. ZIDLICKY

J. MANUEL VALLE

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioners

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTRODUCTION .................................................

1

I. THE DECISION BELOW IMPLICATES A

CIRCUIT SPLIT OVER WHETHER THE

FREE EXERCISE CLAUSE REQUIRES

THAT RELIGIOUS DISCRIMINATION

“SUBSTANTIALLY BURDEN” RELIGIOUS

EXERCISE ....................................................

3

A. The Circuits Are Divided On The

Question Presented ...................................

3

B. The Ninth Circuit’s “Substantial Burden”

Requirement Conflicts With This Court’s

Decisions....................................................

6

II. THIS CASE IS AN IDEAL VEHICLE FOR

RESOLVING THE CIRCUIT CONFLICT ...

8

CONCLUSION .....................................................

12

(i)

ii

CASES

TABLE OF AUTHORITIES

Page

Altman v. Bedford Cent. Sch. Dist., 245 F.3d

49 (2d Cir. 2001) .........................................

6

Am. Family Ass’n, Inc. v. City & Cty. of San

Francisco, 277 F.3d 1114 (9th Cir. 2002)...

3

Anspach ex rel. Anspach v. City of Philadelphia, 503 F.3d 256 (3d Cir. 2007) ..............

5

Brown v. Borough of Mahaffey, 35 F.3d 846

(3d Cir. 1994) .............................................. 4, 5

Butts v. Martin, 877 F.3d 571 (5th Cir.

2017) ...........................................................

6

Espinoza v. Mont. Dep’t of Revenue, 140 S.

Ct. 2246 (2020) ...........................................

6

Espinoza v. Mont. Dep’t of Revenue, 435 P.3d

603 (Mont. 2018), rev’d, 140 S. Ct. 2246

(2020) ..........................................................

7

Gladson v. Iowa Dep’t of Corr., 551 F.3d 825

(8th Cir. 2009) ............................................

6

Hartmann v. Stone, 68 F.3d 973 (6th Cir.

1995) ...........................................................

4

Masterpiece Cakeshop, Ltd. v. Colo. C.R.

Comm’n, 138 S. Ct. 1719 (2018) ................ 8, 10

O’Lone v. Estate of Shabazz, 482 U.S. 342

(1987) ..........................................................

6

Roberts v. Neace, 958 F.3d 409 (6th Cir.

2020) ...........................................................

5

Tenafly Eruv Ass’n, Inc. v. Borough of

Tenafly, 309 F.3d 144 (3d Cir. 2002) .........

4

Trinity Lutheran Church of Columbia, Inc.

v. Comer, 137 S. Ct. 2012 (2017) ............... 7, 9

Turner v. Safley, 482 U.S. 78 (1987).............

6

Vernon v. City of Los Angeles, 27 F.3d 1385

(9th Cir. 1994) ............................................

3

KDM ex rel. WJM v. Reedsport Sch. Dist.,

196 F.3d 1046 (9th Cir. 1999) ....................

3

INTRODUCTION

Petitioners previously demonstrated that there is a

deep circuit conflict over whether the Free Exercise

Clause permits the government to discriminate

against religion so long as it does not impose a “substantial burden,” that is, a burden that directly prevents religious worship. Pet. 15-21. This case implicates that conflict and warrants this Court’s review because the court of appeals affirmed dismissal of Petitioners’ Free Exercise claim based on the application

of Ninth Circuit precedent imposing a “substantial

burden” requirement—a legal standard expressly rejected by the Third and Sixth Circuits and foreclosed

by this Court’s precedent. Id. at 22-23, 24-26.

Respondents insist that there is no circuit split, no

conflict with this Court’s decisions, no burden (substantial or otherwise) present or alleged, and no deviation from neutrality. But they are wrong on every

point. First, Respondents misconstrue decisions rejecting the “substantial burden” test as requiring it implicitly, Opp. 23-27, and ignore the Third and Sixth

Circuits’ holdings that Article III injury is all Free Exercise plaintiffs must allege to challenge State action

targeting religion. Respondents also ignore the Ninth

Circuit’s “substantial burden” precedent that the decision below applied in rejecting Petitioners’ claim.

Second, with regard to this Court’s decisions, Respondents do not meaningfully address that the holding in Trinity Lutheran is irreconcilable with the

Ninth Circuit’s “substantial burden” requirement.

Opp. 33. If a showing of direct obstruction of religious

worship were required to state a Free Exercise claim,

then Trinity Lutheran and this Court’s subsequent decision in Espinoza were wrongly decided.

2

Third, Respondents’ argument that there is no “burden” here, Opp. 31, merely incorporates their—and the

Ninth Circuit’s—erroneous view that the Free Exercise Clause does not forbid government action that indirectly burdens Free Exercise. Pet. 18-19. The legitimacy of this “substantial burden” requirement is the

question presented here.

Finally, Respondents are wrong that the district

court and the court of appeals found the challenged

Standards and Framework to be “neutral.” Opp. 31.

Both courts sidestepped the neutrality question by rejecting Petitioners’ Free Exercise claim based solely on

the threshold “substantial burden” issue. Nor can Respondents credibly defend the religious “neutrality” of

requiring Hindu children to learn and recite that their

religion derives from a racist theory and espouses the

moral horror of the caste system as an article of their

individual faith. Instead, Respondents simply ignore

the “confusion and shame,” the “psychological harm …

and alienation,” their actions have inflicted on those

children, and, ultimately, leave the question the children ask unanswered: “Why did you have to embarrass

us and humiliate us?” ER1428-29.

This case remains an ideal vehicle to resolve the conflict among the courts of appeals and the conflict between the decision below and this Court’s Free Exercise decisions. The petition should be granted.

3

I. THE DECISION BELOW IMPLICATES A

CIRCUIT SPLIT OVER WHETHER THE

FREE EXERCISE CLAUSE REQUIRES

THAT

RELIGIOUS

DISCRIMINATION

“SUBSTANTIALLY BURDEN” RELIGIOUS

EXERCISE.

A. The Circuits Are Divided On The Question Presented.

Petitioners previously showed that the Ninth Circuit’s “substantial burden” framework conflicts with

decisions of the Third and Sixth Circuits. Pet. 15-21.

To argue otherwise, Respondents misread—or ignore—the relevant cases.

First, in claiming that there is no circuit split, Opp.

23, Respondents ignore the Ninth Circuit precedent at

the heart of the circuit conflict—as well as the decisions that acknowledge that conflict. Indeed, Respondents completely ignore Vernon v. City of Los Angeles,

27 F.3d 1385 (9th Cir. 1994) and American Family

Ass’n, Inc. v. City & County of San Francisco, 277 F.3d

1114 (9th Cir. 2002), notwithstanding that the application of those two cases was the basis for the district

court’s and court of appeals’ rejection of Petitioners’

Free Exercise claim. Pet. 22; see also Pet. App. 15a,

75a-77a. Nor do Respondents acknowledge the Ninth

Circuit decision expressly recognizing that Circuit’s

disagreement with the Third and Sixth Circuits. See

KDM ex rel. WJM v. Reedsport Sch. Dist., 196 F.3d

1046, 1054 (9th Cir. 1999) (Kleinfeld, J., dissenting).

Respondents cannot avoid the circuit conflict by wishing away the decisions that present and highlight that

conflict.

Second, Respondents disregard the holdings of the

Third and Sixth Circuit decisions that have rejected

the Ninth Circuit’s “substantial burden” requirement.

4

They ignore, for example, that both the Third and the

Sixth Circuits expressly held that when the government discriminates against religion, plaintiffs need allege only an Article III injury, see Tenafly Eruv Ass’n,

Inc. v. Borough of Tenafly, 309 F.3d 144, 170 (3d Cir.

2002); Hartmann v. Stone, 68 F.3d 973, 979 n.4 (6th

Cir. 1995)—a requirement Petitioners plainly satisfy.

See Pet. 22. Respondents likewise fail to address or explain why the “substantial burden” test they defend

would not, as the Third Circuit has held, “make petty

harassment of religious institutions and exercise immune from the protection of the First Amendment.”

Brown v. Borough of Mahaffey, 35 F.3d 846, 849-50 (3d

Cir. 1994).

Third, instead of distinguishing these holdings, Respondents cherry-pick dicta to argue that (i) these circuits would, in fact, “require a substantial burden

analysis in this case,” Opp. 23-24, or, more broadly,

(ii) those courts somehow implicitly require a “substantial burden”—i.e., an actual obstruction of “religiously motivated conduct,” id. at 24-26. Neither claim

withstands scrutiny.

On the first point, Respondents contend that the

Third Circuit in Brown held that the “substantial burden” test was “necessary” “to place logical limits” on

Free Exercise whenever “the state is not infringing directly on religious exercise.” Opp. 23 (emphasis added).

What Brown actually says is that “[a] burden test is

only necessary to place logical limits on free exercise

rights in relation to laws or actions designed to achieve

legitimate, secular purposes” and that “government

actions intentionally discriminating against religious

exercise a fortiori serve no legitimate purpose.” Brown,

35 F.3d at 850 (emphasis added). Thus, under Brown,

5

California’s discrimination against the Hindu faith requires no burden analysis at all—let alone the “substantial burden” required by the decision below.

Nor is there any merit to the argument that the

Third and Sixth Circuits apply something akin to the

“substantial burden” test. Respondents seize on these

courts’ references to religious “conduct” to argue that

the Third and Sixth Circuits “incorporated an actual

‘burden on religious conduct’ requirement into [their]

‘neutral and generally applicable’ analysis.” Opp. 2526. But the category of religiously neutral laws cannot

include laws that would require school children to

learn derogatory descriptions of their religion. Moreover, the Third and Sixth Circuits suggest no such approach is legitimate. 1 While they sometimes refer to

discrimination against religious “conduct,” they also

refer generally to “non-neutral government actions”

and the “intentional targeting” of religion, Brown, 35

F.3d at 849-50, and they affirm that “[f]aith-based discrimination can come in many forms,” Roberts v.

Neace, 958 F.3d 409, 413 (6th Cir. 2020) (per curiam).

Finally, Respondents’ treatment of decisions from

other circuits is unavailing. They misinterpret some

1 Respondents’ argument that Anspach ex rel. Anspach v. City

of Philadelphia, analyzes religious discrimination under a “substantial burden” standard, Opp. 25, is incorrect. 503 F.3d 256, 272

(3d Cir. 2007). Anspach did not involve discrimination on the basis of religion because the defendants were unaware of the plaintiff’s religious objections to the contraceptive drugs they administered. Id.

6

cases, 2 and cite others that are inapplicable. 3 But at

bottom, their survey of circuit decisions reinforces that

the conflict presents a recurring, outcome-determinative issue under the Free Exercise Clause.

B. The Ninth Circuit’s “Substantial Burden”

Requirement Conflicts With This Court’s

Decisions.

Respondents’ refusal to address the Ninth Circuit’s

decisions in American Family and Vernon is particularly significant because—like the decision below—

those decisions are irreconcilable with this Court’s

Free Exercise precedent. This Court’s decisions hold

that “[t]he Free Exercise Clause protects against even

‘indirect coercion.’” Espinoza v. Mont. Dep’t of Revenue,

2 Respondents misread Altman v. Bedford Central School Dis-

trict, which limits the “substantial burden” analysis to neutral,

generally applicable laws, and does not require any threshold obstruction of religious practice to trigger strict scrutiny. 245 F.3d

49, 79-80 (2d Cir. 2001). In Altman, the Second Circuit held that

the Earth Day celebration at issue did not violate the student

plaintiffs’ Free Exercise rights because students were not “required to attend” the ceremonies or listen to the speeches. Id.

Here, of course, Hindu students are required to learn California’s

disparaging treatment of Hinduism.

3 A number of the cases Respondents cite in support of a “substantial burden” test involve Free Exercise claims in the prison

context, where courts apply a unique standard of review. See, e.g.,

Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 831-33 (8th Cir.

2009) (analyzing Free Exercise challenge under Turner v. Safley,

482 U.S. 78, 89 (1987) and O’Lone v. Estate of Shabazz, 482 U.S.

342, 349-50 (1987)). Notably, although the prison context is sui

generis, courts have split over whether a “substantial burden”

analysis is appropriate there as well. See, e.g., Butts v. Martin,

877 F.3d 571, 585-86 (5th Cir. 2017) (rejecting “substantial burden” requirement). Thus, assuming the prison cases are relevant,

they simply reinforce the conflict and heighten the need for this

Court’s review.

7

140 S. Ct. 2246, 2256-57 (2020) (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct.

2012, 2022 (2017)).

Indeed, all of the circuit court decisions Respondents

rely upon to argue that “the other Circuits are in accord” with the Ninth Circuit’s “substantial burden”

analysis, Opp. 28, either predate Trinity Lutheran or

ignore it. Here, Respondents’ two-sentence analysis,

id. at 33, merely parrots the decision below by limiting

Trinity Lutheran to its facts. Respondents cannot and

do not dispute that Trinity Lutheran rejected the argument that the government does not impose a “meaningful[] burden” on Free Exercise if it has “not prohibit[ed] the Church from engaging in any religious

conduct or otherwise exercising its religious rights.”

Trinity Lutheran, 137 S. Ct. at 2022. The argument

squarely rejected in Trinity Lutheran is the cornerstone for Respondents’ defense of the decision below.

Espinoza, moreover, reaffirmed Trinity Lutheran on

this point. It rejected the argument for affirming the

Montana Supreme Court’s decision that a “ban on sectarian aid” was constitutional because it “does not in

any way interfere with or otherwise substantially burden the preexisting First Amendment right of parents

to send their children to religiously-affiliated schools.”

Espinoza v. Mont. Dep’t of Revenue, 435 P.3d 603, 624

(Mont. 2018) (Sandefur, J., concurring) (emphasis

added). The rationale Espinoza implicitly rejected mirrors the district court’s analysis here. See Pet. App.

76a (ruling that there was no “substantial burden” if

8

parents were not “in any way barred from instructing

their children on religion at home”). 4

Thus, in contrast to the decisions of the Ninth Circuit, this Court’s cases confirm that“[t]he Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.” Id. (quoting Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 534 (1993)). And, as discussed below, the disparagement of Hinduism in the Standards and Framework is far from “subtle.”

II. THIS CASE IS AN IDEAL VEHICLE FOR RESOLVING THE CIRCUIT CONFLICT.

Because the Ninth Circuit dismissed Petitioners’

Free Exercise claim based solely on the application of

its “substantial burden” standard, this case is an ideal

vehicle for resolving the circuit conflict over whether

that standard is appropriate. Pet. 22-23. Respondents’

counterpoints are meritless.

First, Respondents contend that this case cannot resolve the circuit split because “no law or other regulatory government conduct is involved.” Opp. 30-31. This

argument is wrong on multiple levels. To begin with,

the Standards and Framework are state “law,” which

school districts are not free to ignore, and which have

a concrete impact on Petitioners and their children.

Moreover, Respondents’ argument presumes that the

Free Exercise Clause protects only against “direct government restrictions or penalties on religious conduct

4 Even if Masterpiece Cakeshop might have involved a more direct form of coercion, Opp. 34-35, it too made clear that “the government … cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that

passes judgment upon or presupposes the illegitimacy of religious

beliefs and practices.” Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (emphasis added).

9

or belief,” id., but that view is refuted by this Court’s

cases.

Second, Respondents claim that this case is a poor

vehicle because “Petitioners did not allege any burden

on their religious exercise.” Opp. 31 (emphasis added).

That is wrong. Petitioners have consistently alleged

the same burden on their Free Exercise of Religion

that this Court recognized in Trinity Lutheran. See

ER2680-84

(Original

Complaint);

ER1426-29

(Amended Complaint). As Petitioners have explained,

for Hindu children “not to be penalized in their exam

results and grades, they must disavow their religious

beliefs,” ER1429, and they “suffer psychological harm,

including humiliation and alienation, and receive an

inferior education as a direct result [of] [Respondents’]

denigration of Hinduism,” ER2683. Respondents cannot credibly contest that forcing Hindu children to

memorize and be tested on a derogatory depiction of

their faith is less burdensome and coercive than the

risk of “a few extra scraped knees.” Trinity Lutheran,

137 S. Ct. at 2024-25.

More to the point, Respondents’ no-burden argument is circular, incorrectly presuming again that the

Free Exercise Clause protects only against the direct

obstruction of religious practices. Cf. Pet. App. 15a

(ruling that Petitioners “failed to allege any burden on

their religious exercise or practice” as “required by our

decisions in American Family and Vernon” (citations

omitted)).

Third, contrary to Respondents’ argument, Opp. 31,

neither the district court nor the court of appeals ruled

that the Standards and Framework were neutral toward Hinduism. Rather, they dismissed the Free Exercise claim on the “threshold” substantial burden

10

question. See Pet. App. 76a-77a (district court); id. at

15a-17a (court of appeals). 5

Nor would a finding of neutrality, on a motion to dismiss, be tenable. Respondents have no answer for why

substantial changes were made to accommodate Judaism—e.g., the removal of the Good Samaritan parable—and Islam, Pet. 9-10, while equal solicitude was

not shown to Hinduism. 6 Likewise, Respondents do

not address the Standards’ use of the slur “Brahmanism,” and they admit that the Standards and Framework inextricably link the caste system with Hindu belief. They defend this derogatory treatment—which no

other religion faces—by arguing that Petitioners have

not identified “any gratuitous, overtly hostile or obviously false statements about Hinduism.” Opp. 11. That

is emphatically not the case. For example, the Frame-

5 To be sure, the courts below analyzed the Standards and the

Framework under the Establishment Clause and asked what an

“objective, reasonable observer” would consider the “principal or

primary effect” of the Framework and Standards. Pet. App. 21a.

That analysis, however, is distinct from the “neutrality” inquiry

required by this Court’s Free Exercise precedents, which are at

issue before this Court. E.g., Masterpiece Cakeshop, 138 S. Ct. at

1731.

6 Respondents’ assertion regarding the “generally positive” response to the Standards and Framework, Opp. 17, is made possible only by omitting the contrary statements from the articles

they cite. See, e.g., SER128-29 (“We only wish they had shown the

same empathy when discussing further changes on the presentation of Hinduism.”); SER140 (emphasizing the need to “continue

to fight against Hinduphobia and correct biases and stereotypes

about Hindus and Indians in the textbooks”). That the revised

Framework is less disparaging of Hinduism than it might have

been—e.g., by removal of a comparison with American chattel

slavery, Opp. 7—is cold comfort to the parents of Hindu children

subject to the humiliation spawned by the Framework and Standards.

11

work identifies the caste system as intrinsic to Hinduism, id. at 11-12, when Petitioners have consistently

alleged and shown that it is not. See, e.g., ER2676

(Original Complaint) (“The Framework … unfairly attributes the caste system to Hinduism ….” (emphasis

added)); id. (“The Framework also fails to note that the

caste system … has not existed among Hindus of Indonesia and Fiji.”); see also Temples’ Amici Br. 4 (explaining that caste “is not intrinsic to the Hindu tradition”).

As for the Aryan Invasion Theory highlighted in the

Standards, Respondents reply that this is just a “theory” and that students will be able to “examin[e]

whether and how new evidence supports the theory.”

Opp. 12. But for no other religion is any such theory

adduced to explain the origins of its beliefs. To the contrary, the beliefs of Judaism, Christianity, Islam, Buddhism, Jainism, and Sikhism are described as originating not with a racist theory but with religious figures like Abraham, Jesus of Nazareth, Muhammad,

Buddha, Mahavira, and Guru Nanak. Respondents

likewise err in saying that Petitioners challenge any

suggestion that Hinduism has “developed and

evolved.” Id. at 9. Rather, Petitioners challenge the degrading assertion that Hinduism developed or evolved

from a caste system overseen by “Brahmins.” Pet. App.

120a-122a. 7

Equally irrelevant is the emphasis Respondents

place on the fact that students do not read the Stand7 On this point, Respondents’ survey of the Framework’s positive comments regarding ancient India and negative comments

regarding other cultures, Opp. 14-15, is irrelevant. This is a case

about religion—not ethnography or geography—and it is what

the Standards and the Framework have to say about the origins,

beliefs, and scriptures of the Hindu religion that matters.

12

ards and Framework. The Standards and the Framework control what the students do read. 8 Pet. 6;

ER146. This is why textbooks derived from the Standards and Framework treat the “caste system” and “the

Aryan Invasions” as “central” to Hinduism—and why

Hindu children are forced to participate in caste-system role-playing activities. Pet. 13; ER1428-29

(“[W]hen we were taught about Hinduism, I felt a mixture of confusion and shame and even felt like not

wanting to be a Hindu.”).

CONCLUSION

For these reasons, and those set forth in the petition,

the petition should be granted.

Respectfully submitted,

April 1, 2021

CARTER G. PHILLIPS*

PAUL J. ZIDLICKY

J. MANUEL VALLE

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioners

* Counsel of Record

8 As amici explain, moreover, the Standards and Framework

control what students read not only in California but nationwide.

See Temples’ Amici Br. 18-20 (describing how Standards- and

Framework-aligned curricula are sold to school districts across

the country).