On Sept. 27, U. S. District Court Judge Robert M. Dow, Jr., entered an order asking plaintiff Stacy Deemar and the School District 65 defendants to submit additional information and legal authorities to assist the court in deciding the defendants’ motion to dismiss the complaint.

District 65’s Joseph E. Hill Early Childhood Education Center Credit: Adina Keeling

The suit, which was filed on June 29 by Deemar, is a 34-page complaint against the District 65 School Board; Devon Horton in his official capacity as Superintendent of the district, LaTarsha Green in her official capacity as deputy superintendent, and Stacy Beardsley in her official capacity as assistant superintendent of curriculum and instruction.

The complaint is brought under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 to prohibit District 65 “from treating individuals differently because of their race.”

It alleges, in part, “Throughout its curriculum and programming, District 65 promotes and reinforces a view of race essentialism that divides Americans into oppressor and oppressed based solely on their skin color.

“District 65 sets up a dichotomy between white and non-white races that depicts whiteness as inherently racist and a tool of oppression. In furtherance of this ideology, District 65 employs ‘affinity groups,’ whereby it segregates faculty members and students into groups on the basis of race.”

The plaintiff is a drama teacher in District 65 and has been a teacher in the district since 2002. The complaint alleges that she identifies as white.

On Aug. 30, the District 65 defendants filed a motion to dismiss the complaint. Defendants argued that the plaintiff lacks standing to bring the claims because the complaint fails to allege that she suffered injury traceable to District 65’s equity programs, and because she lacks standing to vindicate the rights of students.

The memorandum argues that the complaint fails to state an actionable claim under the Equal Protection clause or Title VI because plaintiff’s claims do not fall within the zone of interests that Title VI protects, and because she was not the intended beneficiary of the District’s educational programming.

The memorandum also argues that the complaint does not allege the existence of a hostile work environment.

The plaintiff filed a response to the motion to dismiss on Oct. 20, 2021, and the District 65 defendants filed a reply on Nov. 24, 2021.

Court’s order

On Sept. 27, 2022, Judge Dow entered an order that focused on one aspect of the case. He said the District 65 defendants “argue that Plaintiff’s theory of standing – that ‘the District’s equity initiatives are ‘stigmatizing racial classifications’ and unlawfully discriminate against her as a white person – ‘raises serious First Amendment concerns by threatening to chill discussion and debate about the ongoing role that race plays in our society generally and within education specifically.’ (citing Monteiro v Tempe Union High School Dist., 158 F.3d 1022, 1032 (9th Cir. 1998).”

Dow said that the plaintiff had not had an opportunity to respond to defendants’ First Amendment argument because it was raised in the defendants’ reply brief. He asked the parties to file supplemental briefs on the issue and specifically asked them to address at least the following questions:

  1. “Is either party aware of any case other than Monteiro in which the court addressed the viability of an equal protection hostile environment claim challenging a school’s curriculum?
  2. “In Monteiro … the Ninth Circuit ‘consider[ed] whether the assignment of material deemed to have educational value by school authorities may in itself serve as the basis for an injunction by a court or an award of damages, when the challenge to the material is founded on its message or the language it employs.’ Id. at 1028. The Court ‘answer[ed] that question in the negative, even when the works are accused of being racist in whole or in part.’ Id. However, the court did not ‘suggest that racist actions on the part of teachers implementing a curriculum could not comprise discriminatory conduct for the purposes of Title VI or the Fourteenth Amendment’ or ‘preclude the prosecution of actions alleging that schools have pursued policies that serve to promote racist attitudes among their students, or have sought to indoctrinate their young charges with racist concepts.’ Id. At 1032. Rather, the court believed that it was ‘simply not the role of courts to serve as literary censors or to make judgments as to whether reading particular books does students more harm than good.’ Id.

     a) “Is Monteiro consistent with the law of this circuit?

     b) “Does Monteiro draw an appropriate dividing line between conduct that is protected by the First Amendment and conduct that may violate equal protection?

     c) “If the Court concludes that Defendants’ mere act of assigning reading materials that Plaintiff finds offensive – including the ‘Courageous Conversation’ program, ‘White fragility’, ‘Not My Idea: A Book about Whiteness (Ordinary Terrible Things)’, and ‘Drama of Color’ – does not violate equal protection, what factual support remains for Plaintiff’s equal protection hostile environment claim?”

  • “In Sherman v. Community Consol. School Dist. 21, 980 F.2d 437, 439 (7th Cir. 1992), the Seventh Circuit held that ‘schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate’ and rejected the notion that ‘a pupil who objects to the content of the Pledge may prevent teachers and other pupils from reciting it in his presence.’ Id at 439. The court of appeals also recognized that government ‘retains the right to set the curriculum in its own schools and insist that those who cannot accept the result exercise their right under Pierce v. Society of Sisters, 268 U.S. 510 (1925), and select private education at their own expense.’ Id. Does Sherman place any limits on the Court’s authority to order the injunctive relief that Plaintiff requests or otherwise limit Plaintiff’s action?

4. “Is either party aware of any case (from any circuit) considering the viability of a hostile education environment claim brought by a teacher under either Title VI or the Equal Protection Clause?”

Dow gave the plaintiff until Oct. 19 to file a supplemental brief, and the District 65 defendants until Nov. 9 to respond. The court did not set a date to rule on the motion.

Larry Gavin

Larry Gavin was a co-founder of the Evanston RoundTable in 1998 and assisted in its conversion to a non-profit in 2021. He has received many journalism awards for his articles on education, housing and...

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  1. If you look at the D65 list of bills from last month, you can see the legal services for this come in at around $15-$20,000 per month (although, maybe this was just the month of June and may have included other cases) What a massive waste of money for a District that is looking at a 2024-25 budgetary crisis. All for what? The right to lecture the teachers that they are racist? The other side of this case is clearly well-funded by right wing causes, which will have no problem contributing to our bankruptcy. Everyone involved here sucks and the kids will suffer.