Final California Ruling in the Textbook Case
Posted by: "Steve Farmer"
Date: Fri Sep 1, 2006 8:56 pm (PDT)
Dear List,
I just returned from Sacramento, where I attended the whole of the
latest hearing on the California textbook case. I drove up with one of
the many Hindu activists and one of the volunteer attorneys who
have been instrumental at every step in helping defeat the Hindutva-backed Vedic Foundation (VF), Hindu Education Foundation (HEF), and most importantly the Hindu American Foundation (HAF), who filed the legal case.
As in previous legal hearings we've attended, there were oddly enough
no VF, HEF, or HAF supporters in the courtroom, so far as we could tell
-- only their non-Hindu attorneys. (One person whom we couldn't
identify was there taking notes; he may possibly have been a reporter
or someone from their camp.)
The day before, California Superior Court Judge Marlette had issued a
tentative ruling on the case, which on all issues involving textbook
contents supported the State of California's position and rejected
HAF's. The Judge ruled for HAF on one strictly procedural issue; but as
noted below, this finding does not pertain to the contents of the
textbooks but only to updating written administrative procedures
relevant to future adoption hearings.
The purpose of the hearing today was to hear oral arguments from both
sides on the tentative ruling before making it final. Both sides talked
about 1/2 hour. At the end, the tentative ruling was upheld by Judge
Marlette without change.
Michael's earlier report, based on my quick telephone call to him when
the hearing ending some hours ago, is essentially correct. Here is a
little more detail on what actually happened in the courtroom:
- On one procedural issue unrelated to textbook contents, Judge
Marlette found that the State Board of Education and Department of
Education had failed to update its written regulations for textbook
adoption procedures under the current California Administrative
Procedure Act (APA) but had instead followed earlier written
guidelines. He therefore ordered SBE/CDE to update these regulations
for future adoption hearings, but also ruled against HAF's request that
the current textbooks be set aside.
In the oral arguments today, the HAF attorney, Deborah Caplan, argued
that due to that procedural failure that the current textbooks should
be set aside while the written regulations were updated. The Judge
ruled against her. The result is that the Judge ruled that SBE/CDE must
update their written regulations to conform with the current APA, but
that will have no effect on the current textbook case.
- On all substantial issues involving the contents of the textbooks --
the only issue of real interest so far as we're concerned -- Judge
Marlette ruled against HAF and for the State. His judgment on the
historical issues is quite clear and detailed. Rather than just giving
highlights of this part of the ruling, I quote it below in full,
without any omissions.
As Michael noted earlier in his briefer post, on every single
historical issue that VF, HEF, and later HAF raised -- The Aryan
question, caste issues, representations of women or Hindu theology in
the textbooks -- the Judge ruled against HAF's contentions. His ruling
should eventually as well have a major impact on the CAPEEM Federal
case, which was far more amateurish than the HAF case to start with.
I can note that Judge Marlette was so clear on this part of the ruling
-- as you can see for yourself below -- that Deborah Caplan (the HAF
attorney) didn't challenge the Judge on even one part of this ruling.
She even apologized to the Judge at one point for inadvertently
misrepresenting some of the edits in the textbooks.
Many hundreds of thousands of dollars were spent over the last year by
Hindutva groups to try to push their political agenda on California,
with an eye on future textbooks in India. It should be noted that we
defeated them purely using volunteers.
The substantial part of the Judge's ruling follows.
Best,
Steve
****************
The Court has reviewed the content of the challenged textbooks by
reading in their entirety the excerpts of the texts that the parties
have submitted in their requests for judicial notice. On the basis of
that review, the Court finds that the challenged texts comply with the
applicable legal standards as set forth above.
Petitioners claim that there are a number of significant inaccuracies
in the challenged texts, such as the listing of the "Major Hindu
Deities", the identification of a particular Hindu deity in a picture
caption, and the translation of certain words, among others.
(Petitioners' description of the claimed inaccuracies is found in their
opening brief at page 38:10-39:20.) The Court finds that petitioners
have not demonstrated that respondent's approval of the challenged
texts should be invalidated on this basis. A review of the evidence
submitted by respondent in its request for judicial notice and
supporting declarations demonstrates that that there is substantial
evidence to show that where actual errors were involved (for example,
in the description of how the Hindi language is written, or in the
statement that a person with bad karma may be reborn as an insect), the
inaccuracies have been corrected in the final versions of the texts.
In other cases, such as the list of major Hindu deities, the
description of a certain text as the "most sacred" in the Hindu
tradition, or the translation of the word "namaste", there is not any
gross inaccuracy, but at most a difference of emphasis or opinion. And
in some cases, such as the claimed failure to describe the overlap
between Hindu and Buddhist teachings, the textbooks in general appear
to acknowledge this overlap sufficiently to prevent any gross
inaccuracy from being found.
More generally, petitioners argue that the texts are inaccurate in
their description of Hindu theology. The argument focuses on the use
in some of the texts of the terminology "gods and goddesses" instead of
terms such as the actual Hindu terms "devi" and "devata" or even
"various forms of the Divine", which petitioners contend is a more
accurate way to describe Hindu religious belief. Beyond that,
petitioners charge that some of the texts do not adequately state that
a significant current of Hindu belief sees all deities as
manifestations of a single absolute divinity, or recognize that there
are many forms of Hindu belief. Petitioners' contentions on this point
are not persuasive. At most, they have demonstrated that there may be
differing English words that could be used to describe the
manifestations of the divine in Hindu religious belief, but not that
the words chosen in any particular textbook are grossly inaccurate. On
the remaining points, petitioners similarly have not demonstrated that
the textbooks' description of Hindu theology are grossly inaccurate.
Indeed, a review of the content of the books demonstrates that several
of the books explicitly acknowledge that most Hindus see the various
deities as manifestations of the absolute divinity, and recognize the
diversity of belief in the Hindu religious tradition. It is true that
the books do not explore these topics in great scholarly detail, but
there is no legal requirement that such a level of detail be contained
in grade-school school textbooks. In the Court's view, the books
broadly and accurately describe the outlines of Hindu religious belief,
which is all the law requires.
Petitioners also argue that the books are inaccurate in their
treatment of the so-called "Aryan invasion" or "Aryan migration"
theories, which are cited in the descriptions of the history of
civilization in India, and, in particular, in the description of the
origins of Hindu culture and religion. Petitioners argue that the
Aryan invasion or migration theories are the subject of debate among
scholars in the field, and that such debate should be acknowledged
explicitly in the books. This argument is not persuasive, at least not
in terms of demonstrating that the textbooks are grossly inaccurate on
this point. First, it appears from the evidence submitted by
respondent that the publishers of the challenged textbooks have in fact
been directed to recognize the ultimate uncertainty of these theories,
at least in general terms.
More fundamentally, even if such direction had not been given, the
texts would not be invalid for that reason. While some scholars may
question the Aryan invasion or migration theories, there is no showing
that such theories are not widely or even generally accepted at this
point, such that presenting them without significant qualification
would be grossly inaccurate. The law does not appear to require
sixth-grade textbooks to include disclaimers or outline the scope of
scholarly debate on historical issues. Moreover, as respondents have
pointed out, the History-Social Science Content Standards for
California Public Schools specifically require sixth-grade students to
study and recognize the significance of the Aryan invasions of India.
Those standards are not challenged in this action. At some point, the
state of historical research and the scholarly consensus in the field
may change to the point where it would no longer be accurate to refer
to a viable Aryan invasion or migration theory in a discussion of
ancient Indian culture. Petitioners have not demonstrated that such a
condition exists now. The Court therefore does not find that the
references to Aryan invasions or migrations make the textbooks grossly
inaccurate or otherwise in violation of law.
Going beyond areas of alleged inaccuracy in the texts, petitioners
argue that the texts violate legal requirements because their
descriptions and depictions of the Hindu religion are not neutral, but
tend to portray the Hindu religion in a negative light or even as
inferior to other religions. This argument is based on several
different charges, for example, that many of the texts unfairly or even
improperly highlight certain features of Hindu religious belief, such
as the belief in numerous deities; or that the texts give undue
emphasis to features of ancient Indian social structure, such as the
caste system and the status of women relative to men; or that the texts
do not utilize illustrative material such as pictures or selections
from texts in as positive a manner for the Hindu religion as they do
for other religions. In this area, petitioners' argument is not based
on alleged inaccuracies in specific facts, but on the overall "read" of
the passages regarding the Hindu religion, evaluated in their entire
context by themselves and in comparison with those on other religions.
As noted above, the applicable standard states that materials on
religious subject matter must remain neutral, must not advocate one
religion over another, and must not include derogatory language about a
religion or use examples from sacred texts or other religious
literature that are derogatory, accusatory or instill prejudice against
other religions or those who believe in other religions. Having
reviewed all of the selections from the challenged textbooks that have
been put before it by the parties, the Court finds that the manner in
which the books treat the Hindu religion does not violate this
standard. The various texts appear to the Court on their face to be
dispassionate and neutral with regard to religion, objectively
describing the features of the Hindu religion and others without
overtly or covertly "taking sides" with one over another. Moreover,
the Court finds nothing in the way of derogatory language or examples
from sacred texts or other religious literature that could be
classified as derogatory, accusatory or that would instill prejudice
against the Hindu religion or its faithful.
It is true, of course, that the texts do include significant
discussion of the caste system. Such discussion does not, however, by
itself cause any of the texts to violate the law. The caste system is
a historical reality, and indisputably was a significant feature of
ancient Indian society. Nothing in the applicable standards requires
textbook writers to ignore a historical reality of such significant
dimension, even if studying it might engender certain negative
reactions in students. Indeed, it appears to the Court that to omit
treatment of the caste system from the teaching of ancient Indian
history would itself be grossly inaccurate.
The real issue, therefore, is whether the caste system is presented as
such a central or essential feature of Hindu religious belief, or in
some way as the creation of Hindu religious belief, such that the texts
become, in effect, derogatory or even accusatory, or instill prejudice
against Hindu religion and believers. The Court finds that none of the
challenged texts have descended to such a level. While the texts do
state, in one way or another, that Hindu religion generally accepted
the caste system (a claim that petitioner have not demonstrated to be
grossly inaccurate, even if it was not true for all Hindu people at all
times), the texts also seem to take pains to describe the origins of
the caste system in terms of a social construct that developed as the
result of the Aryan invasions or migrations, rather than as primarily a
Hindu religious belief per se. Indeed, passages can be found within
the texts that attempt to present a measured, balanced view of the
caste system, some going so far as to suggest that it may have had
certain benefits at certain times. Even in the passages that imply
criticism of the caste system (such as the passage in the MacMillan
McGraw/Hill text in which the girl reflects on the „unfairness of it
all‰), the focus is not overtly on the Hindu religion as bearing the
responsibility for the caste system, but on the effects of that system
on the people of India, which even petitioners apparently would concede
were not generally positive, especially for those in less-favored
castes. Just as the regulation does not require textbooks to ignore
unpleasant historical realities, it does not require them to present
such realities in an unnaturally positive light. Moreover, nothing in
the challenged texts uses the discussion of the caste system as a
take-off point for comparing Hinduism unfavorably with other religions,
or for advocating other religions over Hinduism. In this respect, the
texts therefore have satisfied the requirement of neutrality.
The Court reaches a similar conclusion with regard to the texts'
discussion of the status of women in ancient Indian society, and their
description of Hindu religious belief in numerous deities as multiple
aspects of the absolute divinity. These discussions appear on their
face to be neutral, objective, dispassionate, factually accurate, not
derogatory or accusatory in their tone, and not such as would instill
prejudice against the Hindu religion or believers. Such passages are
descriptive and do not advocate certain religions over others. On all
of these points, the possibility, or even probability, that some
students might react negatively, based on their own religious,
political or social beliefs, to what they read in these books does not
make the books legally invalid. The law does not insure against
negative reactions or prejudices, it merely requires that the textbooks
not instill them. The challenged books meet that requirement.
Petitioners' contention that the textbooks have the effect of
comparing the Hindu religion unfavorably to other religions is also
unpersuasive. Where the books describe the development of Buddhism,
for example, as in part a reaction against certain Hindu beliefs and
practices, they do so in an objective and dispassionate manner that has
not been demonstrated to be historically inaccurate. Moreover, the
books also appear to accept the idea that Buddhist teachings reflected
and accepted many Hindu ideas. Nothing in this discussion appears to
the Court to violate the applicable standard discussed above.
Similarly, petitioners have not persuaded the Court that the textbooks
tend to favor religions such as Christianity or Judaism over Hinduism
based on the content of the texts themselves, or on the choice of
illustrative materials such as pictures and selections from sacred
writings. The fact that the discussion of Christianity and Judaism is
longer than that of Hinduism, or that one religion or another is
illustrated by more pictures (or, allegedly, more attractive pictures)
or by an allegedly more appealing choice of textual excerpts, by itself
does not establish a violation of the applicable legal standards. As
noted above, the essential inquiry is whether the texts appear to be
neutral. In this case, the Court finds that they are, and thus do not
violate the applicable standards.
Based on the foregoing, the Court finds that petitioners have not
demonstrated that the challenged textbooks violate applicable legal
standards. The relief that will be granted in this matter therefore
shall not include an order that a writ of mandate issue requiring
respondent to rescind its approval of the challenged texts or take
steps to remove them from use.
*************
End of verbatim transcript of this part of the ruling.
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