On or about January 22, 2026, Respondent … posted a video on her TikTok account in which she wished a gruesome birth injury on the White House press secretary, Karoline Leavitt, while she was pregnant and awaiting the birth of her child[:]
As a labor and delivery nurse, it gives me great joy to wish Karoline Leavitt a fourth-degree tear. I hope that you f***ing rip from bow to stern and never s**t normally again, you c**t [redaction in the judge's recommended order]….
Respondent identified herself in the Video as a labor and delivery nurse but made no mention of her employer Baptist Health and was unable to testify as to why she included her profession in the Video. Perhaps it was to lend credence to the fact she knew exactly what impact a "fourth-degree tear" could have on Ms. Leavitt.
Respondent's testimony was that she was so frustrated and disgusted with the current administration in Washington, D.C., that her way of expressing it, lending her expertise in exactly what she was hoping happened to a complete stranger to her, was to wish a fourth-degree tear on President Trump's press secretary….
[Another] experienced advanced registered nurse practitioner and a registered nurse … testified that "a fourth-degree tear is the worst tear that can potentially happen during the birth process." It is so severe that, if occurring, the patient would have to have anywhere from a spinal anesthetic to general anesthesia to have the repair performed in an operating room. There can even be additional surgery required down the road to make further repairs to the affected area….
Defendant's playing "the KRS-One song entitled 'Sound of da Police' at a high and disruptive volume from her vehicle while simultaneously directing offensive, suggestive, and threatening remarks toward the complainant near the complainant's home" "may reasonably be interpreted as intended to alarm, annoy, threaten, or harass."
From N.Y. (Town of Patterson) Justice Court judge Michael Caruso in People v. Lando, decided in April:
This prosecution … [is for] Harassment in the Second Degree in violation of Penal Law § 240.26(3), which is a violation [i.e., a petty offense punishable by no more than 15 days in jail -EV].
The complainant alleges, based upon personal knowledge, that on May 30, 2025, at approximately 5:30 p.m., Defendant stopped her vehicle in front of the complainant's driveway and played music at an excessive volume, causing annoyance and alarm. The complainant further alleges that the music included the phrase "it's the sound of the police," and that this conduct, as a whole, was undertaken in response to the complainant's prior report to law enforcement concerning Defendant's alleged excessive noise. According to the information, Defendant then backed up her vehicle and shouted to the complainant, "Why don't you call them [the police] for me being too loud." …
The supporting deposition alleges that on May 29, 2025, an individual identified as "Frank" drove past the complainant's residence and shouted vulgar and offensive language, including "Fucking faggot!" It further alleges that, later that same day, the same individual parked his vehicle in the roadway, thereby obstructing the complainant's wife from operating her vehicle, while staring at her and her daughter.
The supporting deposition further alleges that on May 30, 2025, the same individual again drove past the complainant's residence, shouting additional vulgar and offensive remarks, including "Gay fuck," directed at the complainant. It is also alleged that Defendant engaged in a course of conduct over a time period, including parking her vehicle conspicuously near the complainant's residence for extended periods with the windows down while playing loud music, specifically the song "Sound of da Police" by KRS-One, and operating her vehicle at excessive speeds along the roadway….
The court denied defendant's motion to dismiss the prosecution. It concluded that defendant's alleged conduct could qualify as second-degree harassment, defined as "engag[ing] in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." And the court concluded that the defendant wasn't protected by the First Amendment:
I've noticed a quirk on the Supreme Court's docket. Often, an order from a Justice will be entered before the notation for reply briefs, even though the reply briefs were filed before the order.
Such is the case with Hoskins v. Von Glahn, which concerned Missouri's congressional maps.
The reply briefs were filed in the early hours of Tuesday, September 8. Then, around 6:00 in the evening, Circuit Justice Kavanaugh denied the order in chambers. Yet, on the docket, Kavanaugh's order appears before the reply briefs.
If you were to just look at this docket, you might think that the reply briefs were filed after the Circuit Justice order, which would make no sense.
I'm not sure why they are sorted like this. Perhaps the Justice's order always takes precedence in a given day?
ABA Standard 206 should have never been adopted. Law school deans rushed it through the process in the wake of George Floyd's death. There was no evidence this standard was necessary or would actually improve race relations. Now, barely six years later, the ABA Council has repealed the standard during an emergency meeting.
What was the rationale for repealing the standard? The Council chair said nothing about the emptiness of Standard 206. Instead the sole reason offered was survival:
"The council believes that national accreditation of law schools is in the best interests of law students, the legal profession and the public, and we can best serve in this role with continued recognition by state supreme courts and the Department of Education," said Melissa Hart, the council's chair, in a statement. "Repealing Standard 206 was necessary to preserve recognition by a growing number of state courts, as well as the department."
The vote was 10-6, with one abstention (a real profile in courage).
Will this action matter? I doubt it. Law schools will still voluntarily comply with the ABA's former Standard through various DEI initiatives. And I doubt the Education Department will care much that this rule was repealed at the barrel of a gun. Nothing stops the ABA from reimposing the same of substantially similar rule in three years.
If only the ABA had listened while there was still a chance. The end is nearer.
In our polarized, paranoid politics, the speech of public employees has produced political controversies across multiple fronts. The culture wars that have entangled the nation's classrooms directly implicate the speech rights of educators. The war over the regulatory and administrative state directly implicates the rights and political activity of civil servants. Labor conflict within the public sector directly implicates the speech rights of both unions and union members. And the speech acts of public employees—tweeting a political opinion, blowing the whistle on official misconduct, or challenging a policy decision—easily become sites of political controversy, conspiracy theorization, and partisan conflict.
Each of these domains and developments has been the subject of deep debate in many fields of academic inquiry. But they have not been treated as instances of a broader problem: how a modern, bureaucratized democracy should manage the speech of its government employees. The issues are complex, requiring the balancing of competing democratic values: transparency versus autonomy; delegation versus supervision; objectivity versus diversity; tolerance of debate and disagreement versus the need to reach some form of functional consensus for collective governance to continue. They require parsing the intersection of First Amendment law, administrative law, labor law, democratic theory, and the brute science of American political contestation. It is no surprise that the law, philosophy, and politics of public employee speech are fraught and unsettled.
Magistrate Judge rejects plaintiff's theory that, because President Trump has claimed he was the rightful winner in 2020, he was therefore ineligible in 2024.
From today's Findings and Recommendation by Magistrate Judge Jeremy Peterson in Wilson v. Trump:
Plaintiff's sole claim is that defendant has violated the Twenty-Second Amendment. This amendment states that "[n]o person shall be elected to the office of the President more than twice."
As I previously stated in recommending that plaintiff's motion for a TRO be denied, "Trump was elected President in 2016 and 2024. In 2020, Joe Biden was elected President." Defendant states as much in his motion to dismiss.
Plaintiff's only argument in opposition is that because defendant has claimed that he "won the 2020 election," then defendant was elected President in 2020. However, as defendant acknowledges, he has made "public statements expressing disagreement with, criticism of, [and] skepticism about the 2020 election." Such statements do not support the finding that defendant was elected President in 2020. On the contrary, Joe Biden was elected in 2020 and served that presidential term.
President Donald Trump is trying to force states to severely curtail mail voting for the fall election by requiring the US Postal Service to refuse to deliver mail ballots unless states meet various onerous requirements. This plan is an affront to both federalism and the separation of powers. The Constitution grants state governments default authority over election administration, subject to override by Congress, when it comes to procedural rules for federal elections. Trump is seeking to usurp these powers.
Numerous state governments and private organizations challenged Trump's executive order in court. The Supreme Court overturned an initial district court injunction blocking the policy, ruling - on procedural grounds - that the plaintiff states had filed their case prematurely (before the US Postal Service had issued a rule implementing Trump's order). While the Supreme Court's reasoning was dubious, it also - for reasons pointed out by Georgetown law Prof. Steve Vladeck - had little effect. Even before the Court had issued its decision, USPS did issue a final rule, and federal district court Judge Indira Talwani issued a new ruling blocking the order, soon thereafter. The Trump Administration has asked the Supreme Court to block the new order. The Justices would do well to say "no" to Trump.
The Elections Clause of the Constitution gives states primary authority over "The Times, Places and Manner of holding Elections for Senators and Representatives," subject to Congress' power to modify these rules by legislation. As Judge Talwani points out, "The Constitution does not grant the President any specific powers over elections." And, as she explains in detail later in her opinion, no federal statute gives the president the power to use the Postal Service to massively restructure state mail-in ballot rules. USPS does have authority to make rules necessary for the delivery of mail. But there is no power to use that as leverage to force changes in state election laws.
Judge Talwani further points out that the sweeping power claimed by Trump here runs afoul of the "major questions doctrine," which requires Congress to speak clearly when delegating authority over major political and economic issues to the executive:
The Supreme Court has made clear that, where "the Government claim[s] broad, expansive power on an uncertain statutory basis[,]" a reviewing court may rely on the general principle that Congress does not delegate "'highly consequential power' through ambiguous language." Learning Resources v. Trump, 607 U.S. 229, 242–43 (2026) (plurality opinion) (quoting West Virginia v. EPA, 597 U.S. 697, 723–24 (2022)). Few of Congress's powers are more consequential than its supervisory authority to regulate elections, because voting is "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
As I have previously explained, the Learning Resources tariff case cited by Judge Talwani (which I helped litigate) builds on previous "major questions" precedent.
The power to use USPS to restructure mail voting is pretty clearly a major one. Eight states allow all elections to be held entirely by mail, and others do with respect to many categories of voters. As Judge Talwani outlines in detail, the administration's new rules requiring states to use special envelope and ballot designs approved by USPS and to input all voters' information into a USPS-run portal, would severely disrupt election administration. They may well be impossible to implement in time to mail out ballots for the upcoming November elections (many states have already printed ballots, and are in the process of sending them out). All told, many millions of votes are likely to be be affected. Moreover, if this order is upheld, the same reasoning could be used to impose even more sweeping changes to mail-in voting in the future.
Trump claims the plan is needed to combat voter fraud. But there is no evidence of large-scale fraud in mail-in voting, or even that fraud in this type of voting is more common than with in-person voting. Trump's claims of fraud are likely part of his more general campaign to cast doubt on election results that go against him and the GOP, and to justify his attempts at illegal interference with elections. And, as my Cato Institute colleague Walter Olson points out, Trump has admitted that part of his motivation for attacking mail-in voting is to reduce Democratic turnout and bolster Republicans' election chances. In recent years, Democratic voters have been more likely to vote by mail than Republican ones - ironically, in large part because of Trump's own bogus claims that mail voting is somehow prone to fraud.
There is good reason for the constitutional allocation of power over elections, which largely excludes the president. No one person should have broad authority over election administration, because such power can easily be abused for partisan ends. This consideration also bolsters the rule for giving states primary responsibility over election administration, thus making it more difficult for the majority party in Congress to skew election rules in its favor, nationwide. In order to do so, they at least have to enact specific legislation, which can often be difficult.
Ironically, in recent decades liberal Democrats were primarily the ones who sought to expand federal control over elections, hoping that doing so would make the system more efficient and expand access to voting. Prominent election law scholar Rick Hasen - long a leading advocate of election law centralization - recently indicated that Trump's abuses have led him to rethink that position. I myself long had a more or less neutral view on this issue, believing that decentralized federalism has much less value in this field than in most others. Trump has led me to rethink my views, as well.
There are still plausible arguments for increased federal control over elections. For example, one can argue that Congress should improve election administration in states notorious for taking too long to count ballots. But any such shift must be made as the Constitution requires: through specific legislation enacted by Congress. It cannot be left up to the whims of any one person, including the president.
On June 12, 1994, Nicole Brown Simpson and Ron Goldman were murdered. Five days later, O.J. Simpson took the LAPD on a low-speed car chase in a Ford Bronco. At the time, I was almost ten years old. All I remember about the initial crime was that the car chase coincided with the NBA Finals Game. The New York Knicks were playing against the Houston Rockets. I remember asking my parents who O.J. Simpson was. I had never heard of O.J. Simpson the football player, though I knew his character from the classic Naked Gun trilogy. (Don't even get me started on the sacrilegious remake.)
Yet, over the next year, everyone in America--even kids--became familiar with the trial. I remember hearing about Judge Lance Ito, Johnnie Cochrane, Marcia Clark, and Kato Kaelin. Years later, when I first heard of the Cato Institute, I thought it had something to do with O.J. Conversely, I learned about Kim Kardashian long before I knew who Robert Kardashian was.
The verdict was handed down on October 3, 1995. I remember the moment very clearly. I was in my 6th Grade Social Studies class, and our teacher, Mr. Segalowitz announced the verdict in class. (I presume he had heard it on the radio.) It seemed obvious to eleven-year old Josh that the jury got it wrong, but I knew nothing about the law to even say why.
Needless to say, views on the O.J. Simpson verdict split sharply across racial lines. I found an old CNN poll with these numbers:
Regardless of the verdict, most whites believe Simpson was guilty of murder; most African-Americans say he was innocent. Two-thirds of all African-Americans think that there was a conspiracy to frame Simpson for the murders; six in 10 whites don't believe in such a conspiracy.
And both groups suspect that racial issues continue to tint the other group's view of the case. Sixty percent of all whites believe that blacks who think Simpson is innocent hold that view mostly because of Simpson's race. Among African-Americans, 58 percent think that whites who maintain Simpson is guilty feel that way mostly based on Simpson's race.
Another CNN poll asked if the jury did the right thing: 88% of blacks said yes while 59% of whites said no.
Another poll from the Washington Post offered similar numbers:
The survey found that America remains divided sharply along racial lines over the Simpson verdicts. Eight out of 10 blacks interviewed said they agreed with the decision, including 66 percent who expressed strong approval of the verdicts. But 55 percent of all whites interviewed said they disapproved of the jury's decision, including 40 percent who said they strongly disapproved.
Blacks and whites also differed in their perceptions of whether, regardless of the verdict, Simpson actually killed his ex-wife, Nicole Brown Simpson, and her friend, Ronald L. Goldman. Seven in 10 blacks expressed confidence that Simpson did not kill the pair -- and an identical proportion of whites said he probably did.
Overall, the survey suggests that in the court of public opinion, the jury is perhaps hopelessly deadlocked: Eight in 10 blacks say justice was done in the Simpson case -- and two out of three whites disagree.
Three decades later, I'm not sure the views of the O.J. trial have changed very much. This Family Guy clip sums things up:
Some readers may have seen Lenore Skenazy's Reason article about how local authorities in Williamsburg, Virginia prosecuted Karyann Parkinson because she decided to let her five-year-old son walk by himself to collect goose feathers by a pond in a gated community. There is more to the story, but not anything that makes the government's actions seem any more reasonable.
I was at Ms. Parkinson's trial. She is a former student and neighbor. On this basis The Free Press asked for my thoughts on her prosecution and conviction. My article begins:
On a sunny day in June, Karyann Parkinson made a fateful choice that could affect her life for years to come: She let her 5-year-old son, Sam, walk alone to a neighborhood pond to collect goose feathers.
Nothing happened to Sam, at least not physically. But for her choice, Parkinson was charged with contributing to the delinquency of a minor, a first-degree misdemeanor in Virginia. In August, she was convicted by a local judge after a bench trial in the Williamsburg Juvenile & Domestic Relations District Court and given a six-month suspended jail sentence.
Knowing Parkinson—a then-neighbor and former student—and having attended the trial, it seems she was punished less for making a debatable parenting choice and more for refusing to come to heel when questioned about her decision. It's not so much that she let Sam collect goose feathers so much as that she did not genuflect to the proper authorities. That makes the case no less of an outrage. Parkinson has found herself in every parents' nightmare—hence why it made national news. So how, exactly, can a mother be given a suspended jail sentence for simply letting her son go for a walk?
My article concludes:
Parenting involves myriad difficult choices, not the least of which is determining when each child is capable of taking independent steps. Here there is a risk of allowing too much as well as of allowing too little. If a parent is too permissive, they risk seeing their child coming into danger. If a parent is not permissive enough, on the other hand, they risk stunting a child's development, including of their fortitude and resilience. Failure to allow and encourage greater independence at an earlier age no doubt contributes to the rise of anxiety and other mood disorders, particularly among children of middle- and upper-class families. Finding the right balance necessarily involves some degree of trial and error, as it is impossible to know whether, with a given child, a particular decision was overprotective or not protective enough until after the fact. On top of that, parents will weigh the balance differently, both for themselves as well as for children with varying capabilities.
Parents understandably agonize over such choices, acutely aware of the consequence of a wrong decision. This is enough for them to worry about. They should not have to worry about government officials second-guessing their choices or threatening criminal charges if a given cop or prosecutor determines a given choice was too permissive. One can conclude Parkinson was too permissive with Sam without thinking her decision was criminal.
Parkinson has appealed the judgment against her. And under Virginia law, she is entitled to a jury. A lone local district court judge was convinced debatable parenting choices could be subject to criminal sanction. We will see if a jury of Parkinson's peers agree.
Last Friday, the en banc U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of a lawsuit filed by residents of Jackson, Mississippi, claiming that the city violated their constitutional rights by allowing the city's drinking water to become contaminated by lead and by falsely claiming the water remained safe to drink. By a 10-5 vote, the full court concluded in Sterling v. City of Jacksonthat there are no clearly established rights to clean drinking water or to accurate information from public officials under the Fourteenth Amendment.
Judge Englehardt wrote for the majority. His opinion begins:
For decades, the Supreme Court has cautioned lower courts to "exercise the utmost care whenever we are asked to break new ground" in the realm of substantive due process. Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 240 (2022) (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Yet Plaintiffs, residential subscribers to the municipally supplied water service in Jackson, Mississippi, seek recognition of two new constitutional rights lacking any foundation in the history and tradition of our Nation—the right to be free from exposure to contaminated water and the right to accurate information from public officials. The Due Process Clause cannot, for the first time today, provide redress for Plaintiffs' alleged injuries, absent any historical basis for doing so.
Because Plaintiffs' injuries are not constitutionally cognizable, the district court's dismissal of their 42 U.S.C. § 1983 claims is AFFIRMED. The Constitution does not provide redress for every governmental wrongdoing. Rather, the remedy for Plaintiffs' injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies. And Plaintiffs have not been left to go at it alone. The State of Mississippi and federal government have worked for years, and continue today, to improve the City of Jackson's drinking water quality through regulations, investigations, and compliance plans. These already-established-and-undertaken avenues are the proper course for rectifying the lead contamination. We will not expand the Fourteenth Amendment to create novel theories of constitutional liability.
The court readily acknowledged that this decision is in conflict with cases from the U.S. Court of Appeals for the Sixth Circuit, such as Guertin v. Michigan (6th Cir. 2019), but was unpersuaded by the Sixth Circuit panel's analysis in that case. From FN 5 of Sterling:
In Guertin v. Michigan, 912 F.3d 907, 920–21 (6th Cir. 2019), the Sixth Circuit held that plaintiffs plausibly alleged that public officials' actions during the Flint Water Crisis violated plaintiffs' right to bodily integrity. We are not bound, nor persuaded, by Guertin. The Sixth Circuit surveyed bodily-integrity precedent and found the right "indispensable," a "first among equals," with an "impressive constitutional pedigree." Guertin, 912 F.3d at 918–19 (internal quotation marks and citation omitted). We do not disagree that the right to bodily integrity is an important right. It is because the right to autonomy over one's person is so fundamental to our liberty that we are reluctant to weaken the right by applying it to conduct that would not have violated the Constitution when the Fourteenth Amendment was adopted. Guertin does not persuade us that Defendants' conduct resulting in Plaintiffs' exposure to contaminated water implicates the right to bodily integrity.
The split between Sterling and Guertin (and another Sixth Circuit case, Mitchell v. City of Benton Harbor from 2025), would seem to create an opportunity for Supreme Court review. On the other hand, it is difficult to see the Supreme Court being any more sympathetic to the plaintiffs' claims here than was the Fifth Circuit.
Judge Haynes dissented, joined by four other judges, largely on the grounds that it is premature to dismiss the plaintiffs' claims. In this posture, Judge Haynes argued, the plaintiffs should be at least entitled to pursue discovery given the plausibility of their claims.
My latest installment at SCOTUSBlog proposes a number of six-member rules: a super-majority should be able to achieve certain substantive ends. Here is a summary:
With the Deep-6, six members of the court could vote to deny a petition immediately and end all further deliberations.
With the Skip-6, if, after briefing, it becomes clear to six justices that the case is easy to resolve, oral arguments can be skipped.
With the Refer-6, six justices, at any point, can vote to refer any pending matter to the full court.
With the Release-6, for any matter, six justices can force the release of a judgment immediately.
With the Stop-6, if any six members of the bench agree, the chief justice could terminate an individual justice's seriatim round.
I will have one more installment in my series on Supreme Court reform next week. Then, a new series will begin on the evolution of a constitutional law casebook.
From Apelbaum v. Lambert, decided Friday by Judge Robert White (E.D. Mich.):
Yaacov Apelbaum and his cybersecurity firm, XRVision, Ltd. (Plaintiffs), commenced this diversity breach of contract and defamation action against attorney Stephanie Lynn Lambert [the case caption calls her Stefanie Lynn Lambert], her law office {collectively referred to as the Lambert Defendants}, and Bill Bachenberg, after the parties allegedly contracted for Plaintiffs to investigate potential fraud during the 2020 general election….
Following the 2020 election, the Lambert Defendants, with financial assistance and partial direction from Bachenberg, promoted various claims of election fraud, including through lawsuits challenging election results. Pursuant to these efforts, the Lambert Defendants pursued various election fraud investigations, and they hired Plaintiffs to conduct forensic analyses of election results and/or procedures in Michigan and Pennsylvania. As particularly relevant here, the parties in March 2022 "entered into an agreement for Plaintiffs to perform a forensic analysis of Fulton County, Pennsylvania's elections systems, in exchange for $200,000." The parties later expanded the scope of Plaintiffs' analysis "for an additional fee of $350,000."
Plaintiffs allegedly performed their obligations of this agreement, but after they found and reported no evidence of election fraud in June 2022, Defendants never paid them as agreed. Further, the Lambert Defendants also allegedly started a defamation campaign against Plaintiffs around August 2022 to dissuade the Pennsylvania Senate, among others, from doing business with Plaintiffs. According to Plaintiffs, they had at the time finalized negotiations with the Pennsylvania Senate to perform a forensic analysis of the whole state's election system, but Lambert Defendants' conduct caused the Pennsylvania Senate to terminate this relationship….
The court allowed plaintiffs' defamation claims against the Lambert defendants to go forward (because of Bachenberg's settlement agreement with the parties, the claims against Bachenberg weren't considered). The defamation allegations were basically this:
From Friday's decision in Flannery v. Eckenwiler by D.C. Circuit Judge Bradley Garcia, joined by Judges Cornelia Pillard and Michelle Childs; as usual, note that in these cases dealing with motions to dismiss, the court focuses on the facts as plausibly alleged by the plaintiff—there has been no factfinding on what the facts actually are:
Eric Flannery owns and operates The Big Board, a Washington, D.C. bar and restaurant. When the District imposed masking and proof-of-vaccination requirements due to the COVID-19 pandemic, Flannery publicly criticized those policies and The Big Board refused to comply with them. Months after the District lifted the requirements, Advisory Neighborhood Commission 6C (ANC 6C) formally opposed renewal of The Big Board's liquor license. Flannery and The Big Board sued, alleging that the members of the Commission violated the First Amendment by opposing the renewal in retaliation for Flannery's public criticism and his restaurant's noncompliance with the District's policies.
The court concluded that "The Big Board's refusal to comply with the orders was not expressive conduct protected by the First Amendment," so not renewing his license based solely on such refusal would have been constitutional:
The Supreme Court has "rejected the view that conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Rumsfeld v. FAIR (2006). Instead, we must ask whether, in context, the conduct is "inherently expressive." … [When] observers would have "no way of knowing" whether conduct is communicative without additional "explanatory speech," that is strong evidence that the conduct is not "inherently expressive."
The district court had thrown out the case with no opportunity to file an amended complaint; the Ninth Circuit agrees that plaintiffs lacked standing to bring the claim, but allows them to refile an amended complaint to "cure the standing deficiencies" (if they can).
This case arises from an ethnic studies model curriculum for high school classrooms developed and championed by the Liberated Ethnic Studies Model Curriculum Consortium (the Consortium), an advocacy group. The proposed curriculum has not been formally proposed to nor adopted by the Los Angeles Unified School District (LAUSD). But the plaintiffs—who are Jewish parents with children enrolled in LAUSD and teachers within that district—claim that at least two teachers are informally using the curriculum, which allegedly promotes anti-Zionist and antisemitic ideals. The plaintiffs also allege that the Consortium, along with the LAUSD public school teachers' union and individuals affiliated with these organizations, wield informal influence over district-wide curricular offerings. The plaintiffs sued, asserting civil rights claims under federal and state law. The district court dismissed with prejudice for insufficiency of the pleadings….
The court agreed that the plaintiffs lacked standing:
Absent more concrete allegations, the plaintiffs have not shown that they personally suffered the harm of religious or racial discrimination. The complaint does not allege that the curriculum—despite being used in two classrooms—is being taught at any classroom or even school where the plaintiffs' children attend or plaintiff-teachers work. The alleged harm—the mere knowledge that the curriculum is being taught at two classrooms at LAUSD, which has over 100,000 high school students across dozens of schools—is too remote and speculative to constitute an injury-in-fact.
Our circuit's standing precedent does not require the plaintiffs to allege that they or their children were directly exposed to antisemitic elements of the curriculum. But they must at least allege having personally suffered some harm plausibly attributable to the curriculum's spread within the district or the plaintiffs' schools—for example, that the plaintiffs have suffered an independent act of antisemitism causally linked to the curriculum's use within LAUSD or the school…. [Nor do they] offer … facts that would suggest inevitable or likely exposure to the curriculum (or its harmful effects)….
But the court concluded that plaintiffs should have been given leave to file an amended Complaint:
