E.M. v. California Department of Education

Opinion

1 2 3 6 7 E.M.,1 et al., Case No. 24-cv-07397-NW

8 Plaintiffs, ORDER GRANTING MOTIONS TO 9 v. DISMISS

10 CALIFORNIA DEPARTMENT OF Re: ECF No. 22, 27, 36, 47 EDUCATION, et al., 11 Defendants.

12 13 Before the Court are motions to dismiss filed by University Preparatory Academy 14 (“UPA”), David Porter, Rachel Juliano, Alisha Hill, and Lucas Kelleher (“UPA Individual 15 Defendants”) (collectively “the UPA Defendants”), ECF No. 27; the California Department of 16 Education (“CDE”) and State Superintendent of Public Instruction Tony Thurmond in his 17 individual capacity (collectively “the State Defendants”), ECF No. 22; Santa Clara County Office 18 of Education (“SCCOE”) and Santa Clara County Board of Education (“SCCBOE”) (collectively 19 “the Santa Clara Defendants”), ECF No. 36; and Dr. Mary Ann Dewan, ECF No. 47. Having duly 20 considered the parties’ written submissions, the Court GRANTS the motions and DISMISSES the 21 complaint with partial leave to amend. 22 23 24 25 26 1 Rule 5.2(a)(3) of the Federal Rules of Civil Procedure requires minors to be identified by initials 27 in court filings. Although Plaintiffs’ complaint identifies the minor child at the center of this case 2 A. Factual History2 3 In the fall of 2023, E.M. began seventh grade at a new school, University Preparatory 4 Academy in Santa Clara. Compl. ¶¶ 36, 37. Because UPA is a charter school, it is overseen by 5 SCCOE through its Charter Schools Department, though CDE is ultimately responsible for the 6 school. Id. ¶ 24. E.M. has many close family members that live in Israel and speaks Hebrew 7 when she is at her home in San Jose. Id. ¶ 5. She identifies as Jewish and Israeli-American. Id. 8 ¶¶ 5, 38. 9 On Saturday, October 7, 2023, Hamas attacked Israel, leading to significant violence and 10 civilian casualties. Id. ¶¶ 41-52. In the wake of the attack, the complaint alleges that E.M. 11 experienced a hostile environment at school. See generally id. ¶¶ 53-73. Among other incidents, 12 E.M. experienced the following episodes of harassment: 13 • On October 9, E.M.’s history teacher forced her to read a passage about past peaceful relations between Palestinians and Jews, which was humiliating for 14 her, even though E.M. was visibly upset and asked to be excused to “get control of herself.” Id. ¶ 54. 15 • On October 10, two Muslim classmates confronted E.M., accusing Jews of 16 being terrorists and claiming her family lived on stolen land. Id. ¶ 55. Later that week, those same girls showed E.M. a threatening Instagram post and 17 spread rumors that “White [E.M.]’s family are terrorists.” Id. ¶ 57. 18 • On October 16, two different classmates began chasing E.M. around the school when they heard her speaking Hebrew on a phone call while yelling “[w]e want 19 you to die.” Id. ¶ 59. 20 • On October 18, E.M.’s two Muslim classmates accused E.M. of being a terrorist. Id. ¶ 61. 21 • On November 13, some of E.M.’s classmates refused to call her by name and 22 instead began addressing her simply as “Jew.” Id. ¶ 65. 23 • On December 5, E.M.’s two Muslim classmates learned that someone had “snitched” on them and indicated they would injure whoever that person was. 24 Id. ¶ 70. 25 26 27 1 During this period of harassment, E.M. was afraid for her safety. Id. ¶ 73. Within a week 2 of the October 7 attack, E.M.’s social circle diminished significantly, and she was subjected to 3 rumors and derogatory comments that went on for months. Id. ¶¶ 56-73. 4 After the first week of harassment, E.M.’s parents attempted to discuss E.M.’s issues with 5 school administrators. Id. ¶ 58. Over the following months, E.M.’s parents met with UPA Dean 6 of Student Services Dr. Alisha Hill, Executive Director David Porter, seventh grade counselor 7 Rachel Juliano, and Director of Student Services Lucas Kellher. Id. ¶¶ 58, 60-63, 66-69, 72. 8 Though the family provided resources to combat antisemitism, the school did not implement any 9 measures or take any action against the harassment aimed at Jewish or Israeli students. Id. ¶¶ 63, 10 67-72. Ultimately, the family decided to withdraw E.M. from UPA after the holiday break, citing 11 ongoing fear for her safety and lack of support from the school. Id. ¶ 74. As a result of the 12 harassment and the school’s inaction, E.M. and her family experienced significant emotional 13 distress. Id. ¶ 107. 14 Following E.M.’s withdrawal from UPA, she attended a public meeting of the SCCBOE 15 and SCCOE to speak in opposition to a resolution blaming Israel for the conflict in Gaza disguised 16 as a resolution promoting “peace and safety” for children. Id. ¶ 83. E.M. was the only public- 17 school student to speak to the Board with actual experience concerning the toxic antisemitic and 18 anti-Zionist atmosphere at a school within the County’s jurisdiction. Id. ¶ 88. Defendants Mary 19 Ann Dewan and Jessica Bonduris worked for the SCCOE and served as the Santa Clara County 20 Superintendent and Associate Superintendent respectively. Id. ¶ 28-29. 21 On January 22, E.M.’s mother submitted a formal Uniform Complaint Procedures (“UCP”) 22 complaint with SCCOE, explaining that both she and E.M. had spoken at the recent School Board 23 meeting about the issues they were facing. Id. ¶ 91. Though SCCOE policy required the district 24 to resolve the UCP complaint within 60 days, SCCOE’s response took 113 days and only then 25 after a spokesperson for the Bay Area Jewish Committee reached out to SCCOE superintendent 26 Mary Ann Dewan directly. Id. ¶ 92-94. In their response, SCCOE insisted that the complaint was 27 not within the scope of their oversight over UPA and suggested E.M.’s parents reach out to CDE, 1 Executive Director Porter and asked for a response by July 13; Porter never responded and CDE 2 never followed up. Id. ¶¶ 95-96. 3 As alleged in the complaint, the CDE, SCCOE, and SCCBOE all failed to take any action 4 against the harassment aimed at Jewish or Israeli students and never attempted to address possible 5 tension or safety concerns of such students in the aftermath of October 7. Id. ¶ 75-78. The school 6 itself failed to address either the harassment experienced by E.M. and her family, or to promote 7 any healthy and respectful way of dealing with the Gaza-Israel conflict at school. Id. ¶ 78. 8 B. Procedural History 9 E.M. filed the instant complaint on October 23, 2024 alleging sixteen causes of action 10 against different combinations of Defendants. The Court has attempted to identify Plaintiff’s 11 claims and the Defendants associated with those claims, in the table appended to this order. All 12 Defendants except Bonduris filed motions to dismiss.3 See ECF Nos. 22, 27, 36, & 47. 14 A. Motion to Dismiss 15 To survive a motion to dismiss, a complaint must contain at minimum “a short and plain 16 statement of the claim showing that the pleader is entitled to relief” and “a demand for the relief 17 sought.” Fed. R. Civ. P. 8. The complaint must clearly establish the claims and parties such that a 18 defendant would have “no difficulty in responding to the claims with an answer and/or with a Rule 19 12(b)(6) motion to dismiss.” Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131–32 20 (9th Cir. 2008). 21 Federal Rule of Civil Procedure 12(b)(6) is designed to “test[ ] the legal sufficiency of a 22 claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for 23 failure to state a claim can be based on either (1) the lack of a cognizable legal theory or (2) 24 insufficient facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 25 696, 699 (9th Cir. 1990). When analyzing a complaint under Rule 12(b)(6), the well-pled factual 26

27 3 The Court reminds the parties that Court ordered deadlines and briefing schedules may only be 1 allegations are taken as true and construed in the light most favorable to the nonmoving party. 2 Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual 3 allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), 4 and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera 5 Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). 7 A. Plaintiffs Currently Lack Standing to Bring Suit 8 All three Plaintiffs in this suit fail to sufficiently allege that they have the requisite standing 9 to sustain this action. “In the absence of standing, a federal court lacks subject matter jurisdiction 10 over the suit.” Righthaven LLC v. Hoehn, 716 F.3d 1166, 1172 (9th Cir. 2013) (quotations 11 omitted). Plaintiffs must ameliorate the issues addressed om this Order if they choose to bring an 12 amended complaint. 13 1. Elisa Schweizer and Shai Miller 14 To establish Article III standing to sue, “a plaintiff must demonstrate (i) that she has 15 suffered or likely will suffer an injury in fact, (ii) that the injury likely was caused or will be 16 caused by the defendant, and (iii) that the injury likely would be redressed by the requested 17 judicial relief.” Food and Drug Admin. v. All. for Hippocratic Medicine, 602 U.S. 367, 380 18 (2024). An injury in fact must be “concrete, particularized, and actual or imminent.” TransUnion 19 LLC v. Ramirez, 594 U.S. 413, 423 (2021). “[P]laintiffs must demonstrate standing for each claim 20 that they press against each defendant, and for each form of relief that they seek.” Murthy v. 21 Missouri, 603 U.S. 43, 61 (2024) (internal quotation marks omitted). 22 Because the complaint is silent as to whether certain Plaintiffs bring only a subset of 23 claims, the Court assumes that E.M.’s parents allege each claim on behalf of themselves and their 24 own injuries. But, even assuming E.M.’s parents can sufficiently allege any personal injury 25 attributable to Defendants, many of the complaint’s claims preclude parental injury as a matter of 26 law. See, e.g., Posey v. San Francisco Unified Sch. Dist., No. 23-CV-02626-JSC, 2023 WL 27 8420895, at *2 (N.D. Cal. Dec. 4, 2023) (“As a threshold matter, Parent Plaintiffs cannot bring a 1 Glass v. Hillsboro School Dist. 1J, 142 F.Supp.2d 1286 (D. Or. 2001) (parents not injured where 2 claim for negligence related to child’s discrimination at school). 3 As to the remaining claims, E.M.’s parents fail to allege an injury in fact that is concrete or 4 particularized. In every cause of action, there is only a single vague and conclusory injury alleged: 5 “significant emotional distress as well as the financial obligations attendant upon putting E.M. in 6 private school.” See, e.g., Compl. ¶ 126, 129. “A conclusory allegation of emotional distress, 7 without more, is insufficient to state a claim.” Obot v. Wells Fargo Bank, N.A., No. C11-00566 8 HRL, 2011 WL 5243773, at *3 (N.D. Cal. Nov. 2, 2011). Likewise, “while economic detriment 9 and loss of opportunity can be legally cognizable harms, Plaintiffs’ generalized and cursory 10 descriptions of these harms do not sufficiently set out a concrete injury.” Physicians Comm. for 11 Responsible Med. v. Vilsack, No. 21-CV-03088-RS, 2023 WL 1873084, at *8 (N.D. Cal. Feb. 9, 12 2023) (internal citation omitted). 13 2. E.M. 14 “A minor . . . who does not have a duly appointed representative may sue by a next friend 15 or by a guardian ad litem.” Fed. R. Civ. P. 17(c)(2). The court “must appoint a guardian ad litem - 16 or issue another appropriate order - to protect a minor or incompetent person who is” otherwise 17 unrepresented. Id. District courts have “a special duty to safeguard the interests of minor 18 plaintiffs.” See Robidoux v. Rosengren, 638 F.3d 1177, 1179 (9th Cir. 2011). 19 E.M. is a minor and may only bring suit if a guardian ad litem has been appointed to 20 represent her interests. See Cal. Fam. Code § 6502. No adult has petitioned the Court to serve as 21 E.M.’s guardian ad litem, though it appears E.M.’s parents may intend to seek that role. See Pls’ 22 Opp’n to CDE & UPA Mots., ECF No. 31 at 2 n.1. While “natural bonds of affection” generally 23 “lead parents to act in the best interests of their children,” the Court must consider whether the 24 interests of a minor plaintiff and potential guardian ad litem diverge, even if that potential 25 guardian ad litem is a parent. Troxel v. Granville, 530 U.S. 57 (2000); Cal. Civ. Proc. Code 26 § 372(b)(1). The general practice in the Northern District is to require a petition for appointment 27 of a guardian ad litem to ensure both the minor’s interests are being met, and to ensure that there is 1 not a conflict between the minor and the guardian ad litem. Until a guardian ad litem has been 2 appointed for E.M. in this matter, the Court cannot adjudicate E.M.’s claims. 3 B. Overarching Complaint Deficiencies 4 As currently drafted, Plaintiffs’ complaint has a fatal flaw: it fails to make a “short and 5 plain statement of the claim[s] showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 6 Though Plaintiffs filed a 55-page complaint, Plaintiffs never sufficiently identify how the specific 7 Defendants violated the various laws underpinning Plaintiffs’ claims. A successful complaint is 8 clear as to which counts are brought against which Defendants, the elements of those counts, and 9 how each of those Defendants meets those elements. Plaintiffs fail to provide the relevant and 10 applicable standards of proof for many of their claims, and where they do, they struggle to apply 11 those standards to their own allegations. 12 For example, three of plaintiffs sixteen counts are brought under 42 U.S.C. § 1983. To 13 establish a § 1983 claim, a plaintiff must show that the defendants, acting under color of state law, 14 discriminated against the plaintiff as a member of an identifiable class and that the discrimination 15 was intentional” or resulted from deliberate indifference. Flores v. Morgan Hill Unified Sch. 16 Dist., 324 F.3d 1130, 1134–35 (9th Cir. 2003). “As an initial matter, section 1983 plainly requires 17 that there be an actual connection or link between the actions of the defendants and the deprivation 18 alleged to have been suffered by [p]laintiff.” Thomas v. Fresno City Coll., No. 115-CV-00826- 19 DAD-BAM, 2016 WL 1572739, at *5 (E.D. Cal. Apr. 19, 2016) (citing Monell v. Dep’t of Soc. 20 Servs., 436 U.S. 658 (1978)). In other words, plaintiff must allege that a “deliberate or affirmative 21 act or omission of the defendant caused the deprivation of plaintiff’s constitutional rights.” 22 Stevenson v. Koskey, 877 F.2d 1435, 1439 (9th Cir. 1989). Nevertheless, here Plaintiffs allege 23 certain Defendants acted with “deliberate indifference” without providing any of the context 24 provided above to root their allegations in the law. 25 All three § 1983 claims—which allege the deprivation of rights under the Equal Protection 26 Clause (Count II), the Free Exercise Clause (Count VI), and E.M.’s right to free speech (Count 27 IV)—are brought against Dewan and Bonduris (among others), plus Thurmond for Count II. But 1 E.M. and her complaints, preluding any possibility that Dewan, Bonduris, or Thurmond caused the 2 deprivation of rights that prompted her to leave UPA. Moreover, Plaintiffs’ allegations are 3 insufficiently vague and conclusory. Bonduris and Thurmond are never mentioned in the body of 4 facts provided in the complaint, and Dewan is mentioned only once in passing. Further, the Court 5 will not consider conclusory allegations that are repeated, to the word, from one count to another, 6 without particular facts that are associated with the alleged conduct and liability of individual 7 defendants. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) 8 The absence of specific allegations directly linking each Defendant to Plaintiffs’ injuries 9 undermines Plaintiffs’ complaint. Though portions of the complaint are detailed (particularly 10 regarding the events that were occurring outside the United States), the specifics are primarily 11 limited to E.M., her troubling experiences with her classmates, the relevant political climate that 12 inspired the alleged bullying, and her parents efforts to intervene on E.M.’s behalf. Without 13 question, some of this context is necessary, and it demonstrates the depth of concern and anguish 14 that E.M.’s parents felt in the face of E.M.’s bullying. These, however, are not the details that can 15 sustain an action brought against school administrators and government agencies, even if they give 16 color as to why Plaintiffs interacted with Defendants in the first place. Any amended complaint 17 must allege with specificity what actions (or lack of action) each Defendant took, how those 18 particular actions caused each Plaintiff’s alleged injuries, and the legal basis that gives rise to a 19 remedy for each Plaintiffs’ harm. The remedy requested must bear a relationship to Plaintiffs’ 20 injuries, and it should be clear why each Defendant is responsible for the remedy requested by 21 Plaintiffs. 22 C. Specific Complaint Deficiencies 23 Of Plaintiff’s sixteen causes of action, four of them are incompatible with the facts 24 Plaintiffs allege. Likewise, several other causes of action are incompatible as brought against 25 specific defendants. In other words, Plaintiffs cannot amend their complaint to cure these 26 incompatibilities without fundamentally altering the story that the complaint alleges. 27 1 1. Count X: Cal. Gov. Code § 11135 2 Plaintiffs’ claim under California Government Code § 11135 fails because Plaintiffs do not 3 request equitable relief. Cal. Gov’t Code § 11135; id. § 11139 (claim under § 11135 can only be 4 enforced through “a civil action for equitable relief.”). “[W]hile the statutory scheme that includes 5 section 11135 creates a private right of action, it does not contemplate an action for damages.” 6 Steshenko v. Foothill-de Anza Cmty. Coll. Dist., No. H049871, 2023 WL 4753441, at *9 (Cal. Ct. 7 App. July 26, 2023). Because E.M. has already withdrawn from UPA, Plaintiffs cannot 8 demonstrate any future harm that injunctive relief might redress. See Muhmoud v. City of San 9 Jose, No. 20-CV-08808-EJD, 2024 WL 2883509, at *5 (N.D. Cal. June 6, 2024) (“Without any 10 allegations of continuing, present adverse effects, Plaintiff lacks standing to pursue equitable 11 relief.”). Accordingly, this claim is DISMISSED WITH PREJUDICE as to all Defendants. 12 2. Count XI: Cal. Civil Code § 51, Unruh Civil Rights Act 13 Count XI fails because public schools, their employees, and government actors are not 14 covered by the Unruh Act. The statute entitles “[a]ll persons within the jurisdiction of this state[,] 15 . . . no matter what their . . . race, color, religion, ancestry, national origin[,] . . . are entitled to the 16 full and equal accommodations . . . in all business establishments of every kind whatsoever.” Cal. 17 Civ. Code § 51(b) (emphasis added). Public schools are not business establishments for the 18 purposes of the Unruh Act when they are “acting to fulfill their educational role.” Brennon B. v. 19 Super. Ct., 13 Cal. 5th 662, 675 (2022). This is so because “[t]he task of educating students does 20 not involve regularly conducting business transactions with the public, or receiving ‘financial 21 benefits from regular business transactions;’ nor does it involve ‘operating in a capacity that is the 22 functional equivalent of a commercial enterprise.’” Id. (quoting Warfield, 10 Cal. 4th at 621). 23 UPA, like all charter schools in California, is legally a public school. N.F. by & through Flyte v. 24 Antioch Unified Sch. Dist., No. 21-16260, 2022 WL 1125645, at *1 (9th Cir. Apr. 15, 2022). 25 Accordingly, Count XI is DISMISSED WITH PREJUDICE as to all Defendants. 26 3. Count XII: Cal. Civil Code § 51.7, Ralph Civil Rights Act of 1976 27 Count XII fails because Plaintiffs do not allege that Defendants acted (or threatened to act) 1 applicable. The act, “provides that all persons within California have the right to be free from any 2 violence, or intimidation by threat of violence, committed against the person on account of race.” 3 Knapps v. City of Oakland, 647 F. Supp. 2d 1129, 1167 (N.D. Cal. 2009), amended in part, No. C 05- 4 02935 MEJ, 2009 WL 10736653 (N.D. Cal. Sept. 8, 2009) (citing Cal. Civ. Code § 51.7(a)). The 5 elements of a Ralph Act claim are: “(1) the defendant threatened or committed violent acts against the 6 plaintiff; (2) the defendant was motivated by his perception of plaintiff’s race; (3) the plaintiff was 7 harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.” Id. 8 (citing Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 880–81 (2007)). 9 Defendants, all school administrators, institutions, or their supervising bodies, did not 10 threaten or commit violent acts against E.M. or her parents. It is not sufficient to merely allege 11 that Defendants perpetuated an “atmosphere of intimidation with threats of violence.” See Pls’ 12 Opp’n to CDE & UPA Mots. Plaintiffs cited cases on this point are inapposite or inapt. See 13 Gabrielle A. v. Cnty. of Orange, 10 Cal. App. 5th 1268, 1291 (2017), as modified (Apr. 18, 2017) 14 (plaintiffs failed to allege a violent act where defendants had merely “conspired” against them); 15 Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1289-1290 (9th Cir. 2001) 16 (plaintiffs alleged a violation where defendant company employed both plaintiff and violent co- 17 worker for three years). Accordingly, Count XII is DISMISSED WITH PREJUDICE as to all 18 Defendants. 19 4. Count XIII: Cal. Civil Code § 52.1, Tom Bane Civil Rights Act 20 Count XIII fails for similar reasons. “The California Bane Act creates a cause of action against 21 a person if that person ‘interferes by threat, intimidation, or coercion . . . with the exercise or enjoyment 22 by any individual or individuals of rights secured by the Constitution or laws of the United States.’ ” 23 Sandoval v. County of Sonoma, 912 F.3d 509, 519 (9th Cir. 2018) (citing Cal. Civ. Code § 52.1). 24 In order to state a claim under the Bane Act, Plaintiffs must allege “(1) interference with or 25 attempted interference with a state or federal constitutional or legal right, and [that] (2) the 26 interference or attempted interference was by threats, intimidation, or coercion.” Hernandez v. 27 City of San Jose, 241 F. Supp. 3d 959, 980–81 (N.D. Cal. 2017), aff’d in part, dismissed in part, 1 897 F.3d 1125 (9th Cir. 2018) (quoting Allen v. City of Sacramento, 234 Cal.App.4th 41, 67 2 (2015)). “Threats, intimidation, and coercion all involve affirmative acts.” 3 Plaintiffs’ allegations are predicated on the Defendants’ failure to act, not any affirmative 4 act. Since Plaintiffs allege only that Defendants failed to act rather than a specific act to deprive 5 E.M. of her or her parents’ constitutional rights, they certainly do not allege that Defendants did so 6 through “threats, intimidation, or coercion.” Accordingly, Count XIII is DISMISSED WITH 7 PREJUDICE as to all Defendants. 8 5. Claims Inapplicable to Certain Defendants 9 a. California Department of Education – State Law and Common Law Claims 10 Plaintiffs’ state law claims against CDE are not viable. Pursuant to the Eleventh 11 Amendment to the Constitution, “[t]he Judicial power of the United States shall not be construed 12 to extend to any suit in law or equity, commenced or prosecuted against one of the United States 13 by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. 14 XI. “Longstanding Supreme Court precedent has interpreted this Amendment to immunize states 15 from suit in federal court by citizens and noncitizens alike.” Kohn v. State Bar of Cal., 87 F.4th 16 1021, 1025 (9th Cir. 2023) (en banc) (citations omitted). The protections of the Amendment 17 extend to state agencies like CDE and cover all but a limited set of federal and state claims. 4 See 18 id. at 1026; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). As a result, the 19 Court DISMISSES Plaintiffs’ state law claims against CDE WITHOUT LEAVE TO AMEND. 20 For a similar reason, the Court dismisses the negligence claim (Count XVI) as brought 21 against CDE. See Compl. ¶ 233. Negligence is a common law tort, and California law is clear 22 that public entities are “not liable for an injury,” “[e]xcept as otherwise provided by statute.” Cal. 23 Gov’t Code § 815; Nozzi v. Hous. Auth. of City of Los Angeles, 806 F.3d 1178, 1200 (9th Cir. 24 2015) (“California has abolished common law tort liability for public entities.”). Because Plaintiff 25 26 4 One exception is when Congress abrogates state sovereign immunity for claims brought under a 27 specific statute. 42 U.S.C. § 2000d-7, for example, specifically abrogated the states’ Eleventh ] cannot bring common law claims against CDE, the negligence claim against CDE must also be 2 || DISMISSED WITHOUT LEAVE TO AMEND. 3 b. Individual Defendants 4 Plaintiffs bring Count IX against all Defendants alleging violations of California Education 5 Code § 220. See Compl. § 181. That provision prohibits “discrimination on the basis of . . . race 6 || or ethnicity [or] religion ...in any program or activity conducted by an educational institution 7 || that receives, or benefits from, state financial assistance.” Cal. Educ. Code § 220 (emphasis 8 added). Under § 210.3, an “[e]ducational institution” is defined as a school or any administrating 9 || agency for public elementary or secondary schools. Cal. Educ. Code § 210.3. In short, an 10 individual cannot be an educational institution and therefore cannot be held liable under § 220. 11 || Donovan v. Poway Unified Sch. Dist., 167 Cal. App. 4th 567, 584 n.3 (2008). Accordingly, Count 12 || IX against the individual Defendants is DISMISSED WITHOUT LEAVE TO AMEND. 13 |} IV. CONCLUSION 14 For the reasons stated above, Defendants’ motions are GRANTED. Plaintiffs may amend 3 15 || the non-futile portions of their complaint consistent with the directives of this order. Any a 16 || amended complaint is due within 21 days of this order. 2 17 IT IS SO ORDERED. 18 || Dated: July 8, 2025 19 Mh Noél Wise 20 United States District Judge 21 22 23 24 25 26 27 28

Case 5:24-cv-07397-NW Document 54 Filed 07/08/25 Page 13 of 13 V. APPENDIX UPA Ind. SCCOE/ Count Cause of Action UPA CDE SSPI Dewan Bonduris Defs SCCBOE 1 42 U.S.C. § 1981 x x Freedom To Contract 2 42 U.S.C. § 1983 x x x x x Equal Protection Clause 3 Cal. Const. Art. I, § 7(a) x x x x x Equal Protection Clause 4 42 U.S.C. § 1983 x x x x Freedom of Speech 5 Cal. Const. Art. I, § 2(a) x x x x Freedom of Speech 6 42 U.S.C. § 1983 x x x x Free Exercise Clause 7 Cal. Const. Art. I, § 4 x x x x Free Exercise Clause 8 42 U.S.C. § 2000d et. seq. x x x Civil Rights Act of 1964, Title VI Cal. Educ. Code § 220 9 x x x x x x x Prohibition of Discrimination Cal. Gov. Code § 11135 10 x x x x x x x Prohibition of Discrimination 11 Cal. Civil Code § 51 x x x x x Unruh Civil Rights Act 12 Cal. Civil Code § 51.7 x x x x x Ralph Civil Rights Act of 1976 Cal. Civil Code § 52.1 13 x x x x x x x Tom Bane Civil Rights Act 14 Cal. Bus. and Prof. Code § 17200 x x Unfair Competition 15 Breach of Contract x Negligence/Negligent Infliction 16 x x x x x x x of Emotional Distress