A school district in north suburban Evanston has asked a federal judge to toss a lawsuit brought by a white middle school teacher that accuses the district of violating her rights by pressing “anti-racism” curriculum, as the school district has alternately claimed the lawsuit threatens the alleged First Amendment freedoms of public educators to discuss race-related topics.
A federal judge hearing the case has set that motion to dismiss aside, for now, however, as he seeks more arguments from both sides on the actual legal basis underlying the school district’s First Amendment claims.
For nearly a year and a half, attorneys for Evanston/Skokie School District 65 have sought to dismiss the lawsuit brought by educator Stacy Deemar.
Deemar filed the lawsuit in June 2021, taking aim at District 65’s implementation of new teacher training programs and new curriculum in recent years, purportedly to promote “anti-racism” in classrooms.
District 65 operates 18 schools, with more than 8,000 students from preschool to eighth grade.
According to court documents, Deemar has worked at the district since 2002, and is considered a part time faculty member.
The lawsuit names as defendants various District 65 administrators, identified as Superintendent Devon Horton, Deputy Superintendent Latarsha Green, and Assistant Superintendent of Curriculum and Instruction Stacy Beardsley.
The complaint asserts the curriculum and training programs create a hostile educational work and learning environment which encourages racism and discrimination among students and staff, directed at white people.
In the complaint and other supporting filed documents, Deemar has asserted District 65’s anti-racism programs and curriculum remind her and others at the school that they are white, “on a daily basis,” while at the same time assigning “exclusively negative characteristics to whiteness, such as racism, oppression, and evil.”
She claims District 65’s programs violate her rights to equal protection under the U.S. Constitution’s 14th Amendment, while also illegally discriminating against her on the basis of race.
District 65 responded in late 2021 with filings supporting a motion to dismiss the case. Among other claims, the school district asserted Deemar should not be allowed to sue because she can’t demonstrate she was actually personally harmed by the policies and programs.
District 65 further claimed Deemar’s filings have misrepresented its programs and curriculum, and their purposes, allegedly to rectify racial inequities and disparities among students.
The district asserted Deemar’s lawsuits “is a blatant attempt to use the federal courts for the improper purpose of challenging curriculum that Deemar, and others, disagree with for political and/or philosophical reasons.”
The district asserts this amounts to attempt to silence discussions by educators and among educators about race and “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.”
In support of this claim, the district cited a 1998 decision from the U.S. Ninth Circuit Court of Appeals in the case docketed as Monteiro v Tempe Union High School District.
The Ninth Circuit court sits in San Francisco and covers federal courts in California, Arizona and other western states.
In the Monteiro case, originating out of Arizona, the parents of a student sued the high school district over its use of literary works which include racial slurs and other profanity, asserting forcing Black students to read such works created a racially hostile educational environment.
The court, however, sided with the school district. The court determined, in part, that allowing such lawsuits to continue would lead to a “significant chilling effect on a school district’s willingness to assign books with themes, characters, snippets of dialogue, or words that might offend the sensibilities of any number of persons or groups.”
That Ninth Circuit decision is not binding on courts in Illinois, which is under the Seventh Circuit Court of Appeals, along with federal courts in Wisconsin and Indiana.
District 65, however, argued the reasoning underlying that decision should apply in defeating Deemar’s claims.
U.S. District Judge Robert M. Dow Jr. has not yet ruled on the motion to dismiss.
Rather, nearly 10 months after District 65 moved to dismiss, Dow asked both sides to weigh in on the question of how much weight the Monteiro decision should carry in this case.
Further, Judge Dow asked the parties to weigh in on whether a different case, this time from the Seventh Circuit, should apply. In that 1992 decision, known as Sherman v Community Consolidated School District 21, the Seventh Circuit judges ruled, while schools can’t force students to recite the Pledge of Allegiance, those students can’t stop teachers from leading the Pledge, nor stop others from reciting the Pledge in their presence.
Further, the Seventh Circuit ruled government “retains the right to set curriculum in its own schools and insist that those who cannot accept the result exercise their right … (to) select private education at their own expense.”
Neither of the decision appeared to directly address how a school district’s policies, programs and curriculum choices might create a hostile environment for district employees, like Deemar, who assert their equal protection rights have been violated.
Judge Dow has asked the parties to specifically weigh in on whether the Sherman case limits his ability to block Deemar’s claims.
And the judge seemed to indicate he was having difficulty finding any other similar cases anywhere else in the country, as he asked lawyers for both sides if they were aware of any other cases, like Deemar’s, asserting hostile educational environment claims brought by teachers.
The judge asked for both sides to complete their competing briefs on the questions by Nov. 9.
Deemar is represented by attorneys Kimberly S. Hermann, B. H. Boucek, and Celia H. O’Leary, of the Southeastern Legal Foundation, of Roswell, Ga.; and by attorneys Whitman H. Brisky and Terry S. Lu, of the firm of Mauck & Baker, of Chicago.
District 65 and its officials are represented by attorneys Nicki B. Bazer, Michael A. Warner and R. Jason Patterson, of the firm Franczek P.C., of Chicago.