Citations
- 333 F. Supp. 3d 1003
Full opinion text
Hon. Cynthia Bashant, United States District Judge
This case stems from the San Diego Unified School District's (the "District") decision in July 2016 to develop an Anti-Islamophobia Initiative (the "Initiative") to address Islamophobia and anti-Muslim bullying and the District's decision in April 2017 to adopt implementing "Action Steps."
Plaintiffs are two organizations-Citizens for Quality Education San Diego ("CQESD") and San Diego Asian Americans for Equality Foundation ("SDAAEF")-and six parents of students in the District-Scott Hasson, Chaoyin He, Xuexun Hu, Kevin and Melissa Steel, and Jose Velazquez (collectively, "Plaintiffs"). Plaintiffs claim that the Initiative is a pretext to establish the District's preference for Islam and Muslim students. They allege that the Initiative and its implementing measures establish "a subtle, discriminatory scheme" based on religion in violation of the First and Fourteenth Amendments of the Federal Constitution, the religion clauses of the California Constitution, and various California state statutory provisions. (ECF No. 3 First Am.
Compl. ("FAC").) Plaintiffs further allege that the District's relationship with non-party Council on American-Islamic Relations ("CAIR") to address Islamophobia violates Plaintiffs' constitutional rights because Defendants "have entangled themselves with [a] religious organization." (FAC ¶ 2.) Given the parties' previous request to dismiss Plaintiffs' claim for nominal damages, the only relief Plaintiffs seek is injunctive and declaratory. (ECF Nos. 17, 19.)
Before the Court is Plaintiffs' motion for a preliminary injunction. (ECF No. 26.) Plaintiffs request this relief solely for the claims they assert pursuant to the No Preference and No Aid Clauses of the California Constitution and the First Amendment's Establishment Clause. (ECF No. 26-1 at 11-18.) In connection with these claims, Plaintiffs request the Court enjoin Defendants from: (1) "[i]mplementing and executing the Initiative as detailed in the Policy's 'Action Steps' or any similar Policy," (2) "[p]ermitting [CAIR], its employees, agents, and representatives to advance their organizational objectives within the District," and (3) "[a]dopting and implementing the CAIR Committee's 'Islamophobia Toolkit' and all related online resources, recommended books, and instructional materials, together with all such materials currently in use in the District." (ECF No. 26-1 at 21-22.)
Defendants oppose Plaintiffs' motion. (ECF Nos. 32, 55.) Because the parties previously requested dismissal of the District as a defendant (ECF Nos. 17, 19), the remaining Defendants in this case are District Board members Richard Barrera, Kevin Beiser, John Lee Evans, Cynthia Marten, Michael McQuary, and Sharon Whitehurst-Payne (collectively, "Defendants" or the "Board"). Among other arguments they raise, Defendants contend that one of the District's post-FAC actions has mooted Plaintiffs' claims, which they argue in turn means that Plaintiffs cannot show a likelihood of success on the merits or irreparable harm. (ECF No. 32 at 8-13; ECF No. 55 at 1-8.) CAIR-California ("CAIR" for the purposes of this Order) has filed an amicus curiae brief opposing Plaintiffs' motion based on the merits of Plaintiffs' claims, to which Plaintiffs have responded. (ECF Nos. 36, 50.)
Having considered the FAC, the preliminary injunction record and the briefing, the Court denies Plaintiffs' motion for a preliminary injunction in its entirety because Plaintiffs have failed to show that this extraordinary relief is warranted.
BACKGROUND
The "Initiative". On July 26, 2016, the Board approved a recommendation by two Board members to "take action to direct the superintendent to bring back to the board a plan to address Islamophobia and the reports of bullying of Muslim students ... at a future date." (LiMandri Decl. ¶ 4 Ex. 2; FAC ¶ 30.) Plaintiffs refer to this Board action as the "Initiative." (ECF No. 26-1 at 2.)
The parties dispute the reasons for the Initiative's genesis. Defendants represent that they adopted the Initiative "[i]n the wake of the increased instances of Islamophobia following Donald Trump's election campaign." (ECF No. 32 at 2.) Defendants cite an article, which explains that "[h]ate crimes against American Muslims have soared to their highest levels since the aftermath of the Sept. 11, 2001 attacks, according to data compiled by researchers" and identifies statements by candidate Trump about Muslims as one source. (Id. at 2 n.1); see Eric Lichtblau, Hate Crimes Against American Muslims Most Since Post-9/11 Era ," N.Y. TIMES (Sept. 17, 2016), https://www.nytimes.com/2016/09/18/us/politics/hate-crimes-american-muslims rise.html. The FAC also alleges that the Board relied on a CAIR California state-wide survey, Growing in Faith: California Muslim Youth Experiences with Bullying, Harassment & Religious Accommodation in Schools [hereinafter "CAIR Survey "]. (FAC ¶¶ 36-39.) The survey details the experiences of surveyed California Muslim youth regarding religion-based bullying and harassment.
In contrast, Plaintiffs believe that the Initiative's express focus on Islamophobia and anti-Muslim bullying masks the District's true goal to "singl[e] out a religious sect for favorable treatment" and "delegat[e] government power to a religious organization," i.e. , CAIR. (ECF No. 26-1 at 1; FAC ¶¶ 1-3.) For example, Plaintiffs point to the District's reported instances of bullying as insufficient to show "a Muslim bullying crisis even existed." (Id. at 3.) The District's 2016 "Protected Class Report" for July 2016 through December 2016 reported seven incidents of religion-based bullying, which Plaintiffs characterize as showing a "a 0.006% crisis" based on the District's approximate 125,300 K-12 student enrollment as of May 19, 2017. (LiMandri Decl. ¶ 7 Ex 5; FAC ¶¶ 27-28). Plaintiffs further note that the District reported to the California Department of Education in 2015 and 2016 "just two instances related to Muslim students." (ECF No. 26 at 3; LiMandri Decl. ¶¶ 5-6, Exs. 3-4.) Lastly, Plaintiffs point to a pre-existing California state law requirement that California public school districts adopt policies that prohibit religiously-based "discrimination, harassment, intimidation, and bullying" to assert that the District already had an anti-bullying program in place. (ECF No. 26-1 at 3 (citing 5 Cal. Code Reg. § 4261); FAC ¶ 22.)
The "Action Steps" . In an April 4, 2017 presentation to the Board, Stanley Anjan, the Executive Director of the District's Family and Community Engagement Department ("FACE") "propos[ed] action steps for an anti-Muslim bullying initiative." (ECF No. 32-2 Anjan Decl. ¶¶ 2-3; see also LiMandri Decl. ¶ 7 Ex. 5 at 51; FAC ¶ 5.) Anjan identified three sets of "Action Steps" for the District :
Action Steps (LiMandri Decl. ¶ 7 Ex. 5 at 55-57; Anjan Decl. ¶ 3 Ex. A at 8-10; FAC ¶¶ 53-55.) "Immediate • "Distribute a letter to staff and parents addressing Islamophobia and direct Action support" Steps" • "Review district calendars to ensure Muslim holidays are recognized" • "Include a link of supports on the district's `Report Bullying' page" • "Provide resources and strategies to support students during the upcoming month of Ramadan" • "Continue the collaboration with community partners and district departments" "Action • "Review and vet materials related to Muslim culture and history at the steps: Instructional Media Center or in video libraries" Before the start of the • "Provide resources and materials for teachers on the History/Social Services 2017-18 page" school • "Add information related to this topic in the Annual Employee Notifications year" (AP 6381)" • "Explore and engage in formal partnerships with the Council on American-Islamic Relations (CAIR)" "Steps • "Create a survey to measure knowledge and implementation of practice" Over Multiple • "Identify areas of prevention, intervention, and restoration": "Restorative Years" Practices" and "Trauma Informed Practices" • "Provide a series of professional development opportunities for staff related to awareness and advocacy for Muslim culture" • "Provide practical tools for educators regarding Islamic religious practices and accommodations in schools"
Defendants acknowledge that "the Board approved the plan in the presentation, and FACE was responsible for implementing the action steps." (Anjan Decl. ¶ 3.) Plaintiffs refer to the Action Steps as "the Initiative's official policies and procedures[.]" (FAC ¶ 52; ECF No. 26-1 at 3 (labelling Action Steps as the "Policy".)
Plaintiffs speculate that the Action Steps are the "polished product of months of close collaboration between" the District and CAIR, but their speculation is not credibly supported. (ECF No. 26-1 at 3.) Plaintiffs' derive support for this speculation from notes of a September 26, 2016 CAIR meeting attended by some District officials, including Defendant Superintendent Marten. (See LiMandri Decl. ¶ 8 Ex. 6.) The topics of the meeting included resources for teachers, professional development, curriculum, reporting bullying, and metrics to assess progress. (Id. ) Beyond this document, the evidence otherwise shows that CAIR provided suggestions to the District and otherwise lacked information on aspects of the District's implementation plan. The District in fact notes that although CAIR "has been very generous in offering its time, advice and guidance to the district on ways to prevent bullying against Muslim students ... [t]he District's anti-bullying program has been developed and implemented by District staff ." (LiMandri Decl. ¶ 25 Ex. 23 (emphasis added).) Plaintiffs do not provide evidence controverting this.
For example, in the week before the Action Steps were announced, Mohebi, CAIR-San Diego's Executive Director, emailed Linda Trousdale, a District employee, about the April 4, 2017 Board meeting. (LiMandri Decl. ¶ 24 Ex. 22.) Mohebi expressed his concern that "we have not discussed details of an MOU, partnership, or any understanding" and noted that he had shared comments on the proposed presentation. (Id. ) Defendant Marten responded: "[w]hile the details for the implementation of these plans are currently being developed, one thing is clear: you, and your organization-CAIR are key partners in any of our next steps. I look forward to continuing to partner with you in our next steps." (Id. )
Shortly after announcing the Action Steps, District officials explored purchasing several CAIR-recommended third party books for the District's Intercultural Materials Center ("IMC"). (LiMandri Decl. ¶ 28 Ex. 26; Woehler Decl. ¶ 3.) Pursuant to California Education Code § 60040 and District procedures, the District's Instructional Resources and Materials Department ("IRMD") vetted suggested books. (Woehler Decl. ¶ 3 Exs. B, C.) Valerie Shields, a CAIR member, sent Anjan a $1,236.54 Barnes & Noble price quote for the anticipated purchase of several books, the titles of which included "Does My Head Look Big in This ?", "I'm New Here ", and "Lailah's Lunchbox: A Ramadan Story ." (LiMandri Decl. ¶ 30 Ex. 28; Woehler Decl. ¶ 4.) A District employee subsequently purchased the books using an IRMD procurement card with the costs covered by a budget code whose funds derive from payments by a third party recycling company for old books the District recycles. (Woehler Decl. ¶¶ 3-4.) Books were then distributed at "trainings with school librarians during the week of May 8, 2017," but without Anjan's authorization. (Id. ¶ 4; Anjan Decl. ¶ 4.)
The Aftermath. The Action Steps and perceptions about the extent of CAIR's alleged involvement in developing them were viewed unfavorably by some. During April 2017 Board meetings, several parents and local community members "presented their concerns" that the Action Steps showed "Defendants' favoritism and preference for a particular religious group" and that Defendants had a "sustained and detailed relationship with a controversial advocacy organization." (FAC ¶ 58.) In an April 27, 2017 letter, Plaintiffs' counsel told the Board "that the [ ] Initiative raises serious constitutional questions," "the policies, practices, and procedures associated with the [ ] Initiative were presently insufficient to prevent civil rights violations," and "recommended that Defendants rescind the prior vote that approved the [ ] Initiative." (Id. ¶¶ 59-60.)
These negative reactions affected the District. On May 12, 2017, Anjan directed Steven Woehler, a District employee, to "retrieve all distributed [CAIR-recommended] books from school librarians."
(Woehler Decl. ¶ 4; Anjan Decl. ¶ 4.) On May 17, 2017, Anjan "informed CAIR that SDUSD was putting a pause on any further actions pursuant to the April 4, 2017 Board meeting while SDUSD made the determination as to how best to move forward with the CAIR relationship." (Anjan Decl. ¶ 5.) Shortly thereafter, Plaintiffs filed the Complaint on May 22, 2017 and the FAC on June 28, 2017, seeking to enjoin Defendants from "enacting, implementing, and enforcing" the Initiative and "engaging in any partnership or associations whatsoever with" CAIR. (ECF Nos. 1, 3.)
The Revised Policy. "In the wake of backlash from certain community members and this lawsuit" (ECF No. 32 at 3) and after the FAC was filed, Defendant Superintendent Marten moved the Board to adopt a new "plan" to "address[ ] tolerance" on July 25, 2017. (Anjan Decl. ¶ 6 Exs. E, F; ECF No. 32-6 Villegas Decl. ¶ 3; LiMandri Decl. ¶ 32 Ex. 30.) The Board meeting agenda identified this plan as "E. STUDENT INSTRUCTIONAL MATTERS. 2. Revised 7/25/17: Addressing Tolerance Through the Comprehensive School Counseling and Guidance Plan." (Anjan Decl. ¶ 6 Exs. E, F; LiMandri Decl. ¶ 32 Ex. 30.) Plaintiffs call this action the Revised Policy.
The Revised Policy acknowledges that the purpose of the Board's April 4, 2017 "plan to address the bullying of Muslim students" was "to raise awareness of the issue of anti-Muslim bullying, ensure that District staff are aware of and sensitive to the issue, and to assure our Muslim community that their children will given [sic] the same protection from bullying as other students in the District." (LiMandri Decl. ¶ 32 Ex. 30.) Under the Revised Policy, however, "the Board affirms its commitment to ensure our schools are safe for all students and that the District will not tolerate the bullying of any students; and clarifies that our Muslim students will be treated equally with respect to bullying." (Id. ) In this manner, the Revised Policy articulates guiding principles for how the District will address Islamophobia and anti-Muslim bullying, which are absent from the Action Steps. The Revised Policy continues:
• A calendar of observances to be created shall include holidays of all faiths for the purpose of enhancing mutual understanding and respect among the various religious, ethnic and cultural groups, and to assist staff to be sensitive to such holidays in the scheduling of events.
• Staff have not been assigned specifically to address the bullying of students of any single religion; rather, the District's anti-bullying program is developed to comprehensively address the issue of bullying of all students through the No Place for Hate program.
• The District's instructional materials are and will continue to be consistent with state standards which address all major world religions in the context of world history and culture.
• While students are entitled under federal law to form student clubs focused on religion; however, District policy (consistent with federal law) prohibits staff from promoting any such club and that remains unchanged.
(Id. (bulleting added).) Several of these items are consistent with the Action Steps and the Revised Policy is largely silent on the Board's approach to several Action Steps. But, in a stark departure from a prior Action Step, the Revised Policy commands that "staff is redirected from forming a formal partnership with CAIR to forming an intercultural committee which shall include representatives of all faiths and cultures and which shall provide input to District staff on issues of cultural sensitivities and the individual needs of various subgroups within our diverse community." (Id. )
Plaintiffs believe the Revised Policy's statement regarding the District's potential formal partnership with CAIR was a farce because of a communication prior to the Board's announcement. Two hours before the Board publicly announced the Revised Policy, CAIR member Linda Williams sent District employees a "1st DRAFT" for "[c]reating a Toolkit of online resources for Addressing Islamophobia." (LiMandri Decl. ¶ 33 Ex. 31.) Noting that the CAIR Committee which compiled the resources "is comprised of a large number of interfaith, intercultural community volunteers," Williams characterized the resources as "only the very beginnings of what could grow into a robust 'Toolkit' for Teachers, Counselors, and Administrators." (Id. ) The resources included: CAIR's 2013 and 2015 reports on anti-Muslim bullying, suggested book lists for addressing Islamophobia, "compassionate comprehension" exercises for students, information on restorative justice and conflict resolution techniques, and information for teachers about childhood trauma. (Id. )
Contrary to Plaintiffs' view, the Revised Policy clearly alters CAIR's relationship with the District, including by CAIR's own account. On July 28, 2017, Williams contacted the Board. She acknowledged "the challenges and stress created by the backlash to the Board 4-4-17 vote to address Islamophobia and the bullying of Muslim students-and especially the ensuring threats and lawsuit." (LiMandri Decl. ¶ 35 Ex. 33.) Yet, she noted that, "[w]e are still quite incredulous that no one connected with CAIR or our Committee ... to give us a respectful, timely notice that Board action item E.2 included specific reference to the District's relationship with CAIR, changing that relationship in dramatic though unspecified ways." (Id. ) Williams expressed that "the following list of Action Steps are still in effect. Our Committee has worked diligently to assist the District in Implementation; however, instead of being supported and ... appreciated, our efforts have actually been undone/reversed by District Staff[.] Please let us know what the next steps are-and when they will be taken-to follow through with what the Board voted unanimously to do on 4-4-17." (Id. ) Williams further noted that CAIR was requesting a restorative justice circle with the District. (Id. )
Post-Revised Policy. In the wake of the Revised Policy, the CAIR-recommended, District-vetted books "were subsequently incorporated into a Multicultural Text Set that covered a variety of culture and identity groups to support SDUSD's goal of providing a supportive environment for all students that values diversity." (Woehler Decl. ¶ 5; Anjan Decl. ¶ 4.) The books appear to have been redistributed to District libraries by November 2017. (LiMandri Supp. Decl. ¶ 3 Ex. 53.) Accordingly, Plaintiffs contend that "school library shelves are stocked with CAIR books." (ECF No. 26-1 at 8.)
On November 1, 2017, the District entered into a formal partnership with the Anti-Defamation League ("ADL") to implement the No Place for Hate program.
(Villegas Decl. ¶ 3 Ex. J.) The program "is a strong anti-bullying effort that highlights and fosters positive school environments, climates, and cultures for all students" and "does not emphasize any one religion[.]" (Id. ¶ 3.) The District has not entered into a formal partnership with and "has not implemented any program, curriculum, or materials created by CAIR[.]" (ECF No. 32 at 7; Anjan Decl. ¶ 12; Santos Decl. ¶ 7; Villegas Decl. ¶ 5.)
The District also established the Intercultural Relations Community Council ("IRCC"), which is overseen by the Youth and Family Advocacy Department and District staff. (ECF No. 32-4 Santos Decl. ¶¶ 2-3, 8; Anjan Decl. ¶ 7.) The IRCC first met on January 22, 2018, to "hav[e] an open dialogue with community members and local organizations regarding safe and inclusive school environments for all students." (Santos Decl. ¶ 3; Anjan Decl. ¶ 7 Ex. H.) Organizations present included the San Diego LGBT Community Center, San Diego Youth Services, the Southern California American Indian Resource Center, and Social Advocates for Youth San Diego. (Anjan Decl. ¶ 7.) Attendees expressed excitement about using the IRCC to focus on diversity and social justice. (LiMandri Supp. Decl. ¶ 18 Ex. 68.) Additional meetings were held on March 29 and May 21, 2018. (Santos Decl. ¶ 3 Ex. I.)
Interactions between the District and CAIR. The District and CAIR have interacted since the Board adopted the Revised Policy. First, as a follow-up to the previously suggested "toolkit" resources, Williams provided an updated list of resources on August 9, 2017 "to be reviewed/vetted by SDUSD Curriculum Department," noting that "[w]e are glad to support the District's efforts in this way[.]" (LiMandri Decl. ¶ 36 Ex. 34.) Another CAIR member, Lallia Allali, suggested additional books on addressing Islamophobia-several of which were the books the District purchased in May 2017. (Id. ; see also LiMandri Decl. ¶ 38 Ex. 36) Williams followed up with District staff about the suggested resources on September 28, 2017. (LiMandri Supp. Decl. ¶ 7 Ex. 57.) Plaintiffs label all the materials Allali and Williams suggested as "the District's New 'Islamophobia Toolkit,' " and contend that the "Toolkit" is being circulated in the District. (ECF No. 26-1 at 8-9.) Plaintiffs do not provide evidence showing that the District has adopted this "Toolkit."
Second, the District and CAIR sought to repair their relationship given the damage it sustained from the backlash to the Initiative and the Action Steps. The District met with representatives of CAIR, Alliance San Diego ("ASD") and the American Civil Liberties Union at ASD's suggestion on August 31, 2017. (ECF No. 32-5 Sharp Decl. ¶ 4.) The District and CAIR subsequently held a restorative circle on November 9, 2017 at a Buddhist temple which was facilitated by third parties. (Anjan Decl. ¶ 8 Ex. K; Sharp Decl. ¶ 5; LiMandri Supp. Decl. ¶ 2 Ex. 52.) A follow-up email regarding the circle noted that "CAIR will be an active member of the Intercultural Community Council." (LiMandri Supp. Decl. ¶ 3 Ex. 53.) Defendant Marten specifically "requested that CAIR stay engaged as an important partner with SDUSD in addressing Islamophobia" and "welcome[d] the CAIR Committee's input to the ADL curriculum used in the District-specifically in regards to teaching about addressing Islamophobia." (Id. )
A follow-up meeting occurred on December 11, 2017. (Anjan Decl. ¶ 9; Santos Decl. ¶ 4; LiMandri Supp. Decl. ¶ 16 Ex.
66.) Agenda items developed by CAIR included "Action Items from 4-4-17 which were NOT rescinded on 7-25-17," "supplementing ADL's efforts in the District with APPROPRIATE approaches/materials to address Islamophobia" and "sending the online teacher support materials." (LiMandri Supp. Dec. ¶¶ 5-6 Exs. 55-56 (capitalization in original).) At the meeting, District staff introduced CAIR to the District employee in charge of the IRCC. (Anjan Decl. ¶ 10; Santos Decl. ¶ 4.) Additional meetings between the District and CAIR occurred on January 11, 2018 and February 8, 2018 to plan for upcoming IRCC meetings. (Anjan Decl. ¶ 9; Santos Decl. ¶ 5; LiMandri Supp. Decl. ¶ 17 Ex. 67.) CAIR has continued to send the District suggested resources. (LiMandri Supp. Decl. ¶ 10 Ex. 60.)
LEGAL STANDARD
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. NRDC, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest." Sierra Forest Legacy v. Rey , 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter , 555 U.S. at 20, 129 S.Ct. 365 ). A preliminary injunction may also be proper "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." M.R. v. Dreyfus , 697 F.3d 706, 725 (9th Cir. 2012).
DISCUSSION
I. The Court's Jurisdiction to Issue a Preliminary Injunction
The Court must first consider the jurisdictional issues of standing and mootness. Plaintiffs argue that they have shown Article III standing to seek the requested injunctive relief because Defendants failed to oppose Plaintiffs' assertions of standing in Plaintiffs' opening brief. (ECF No. 51 at 3.) This argument is inherently flawed because a litigant cannot waive Article III's requirements. Ass'n of Christian Sch. Int'l v. Stearns , 678 F.Supp.2d 980, 984 (C.D. Cal. 2008) (citing United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc ., 517 U.S. 544, 551, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) ). Even if a defendant fails to challenge Article III standing, a federal court has an independent duty to assure itself that a plaintiff has properly invoked its jurisdiction. FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) ("The federal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of [the jurisdictional] doctrines.' " (quoting Allen v. Wright , 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ). And it is Plaintiffs ' burden to show-rather than Defendants' burden to disprove-the existence of jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ("It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction."). Thus, the Court assesses whether the Plaintiffs have shown standing and then considers mootness.
A. Standing
Article III limits federal courts to deciding "cases" and "controversies."
U.S. Const. art. III, § 2; Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc ., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Because of this limitation, a plaintiff who invokes federal jurisdiction must show "the irreducible constitutional minimum": (1) an injury in fact via an invasion of a legally protected interest that is concrete, particularized, and actual or imminent, rather than conjectural or hypothetical, (2) fairly traceable to the defendant's conduct, and (3) redressable by a favorable judicial decision. Spokeo, Inc. v. Robins , --- U.S. ----, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). A plaintiff " 'must demonstrate standing for each claim he seeks to press' and 'for each form of relief' that is sought." Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (quoting DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). A plaintiff's standing to sue is determined based on the facts that exist at the time of the complaint. Clark v. City of Lakewood , 259 F.3d 996, 1006 (9th Cir. 2001) ; In re 1250 Oceanside Partners , 260 F. Supp. 3d 1300, 1313 (D. Haw. 2017) (same). And "each element must be supported ... with the manner and degree of evidence required at the successive stages of the litigation." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. "[A]t the preliminary injunction stage, a plaintiff must make a 'clear showing' of [the standing elements]." Lopez v. Candaele , 630 F.3d 775, 785 (9th Cir. 2010). "Because '[c]onstitutional challenges based on the First Amendment present unique standing considerations,' plaintiffs may establish an injury in fact without first suffering a direct injury from the challenged restriction." Id. (citation omitted).
1. Organizational Plaintiffs
The Organizational Plaintiffs have not shown Article III standing whether premised on (1) organizational harms or (2) in a representational capacity on behalf of their members. First, although "[a]n organization has 'direct standing to sue [when] it show[s] a drain on its resources from both a diversion of its resources and frustration of its mission,' " Valle Del Sol, Inc. v. Whiting , 732 F.3d 1006, 1018 (9th Cir. 2013), neither organization alleges a diversion of resources. (FAC ¶¶ 8-9, 154, 169, 177, 186, 193.) Although they submit declarations invoking such harms (ECF No. 26-3 Ex. 43 (CQESD Decl.); id. Ex. 44 (SDAAEF Decl.) ), a plaintiff may not "effectively amend its complaint by raising" new allegations of standing not contained in the complaint. La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest , 624 F.3d 1083, 1088-89 (9th Cir. 2010) (rejecting as "ineffectual" declarations averring standing on grounds absent from the complaint).
Second, representational standing is also absent. "[A]n organization suing as a representative [must] include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association." United Food & Commercial Workers Union Local 751 , 517 U.S. at 555, 116 S.Ct. 1529. But neither organization "identif[ies] a single member with standing to sue in his or her own right" in the FAC, let alone in their preliminary injunction declarations. Advocates for Individuals with Disabilities Found., Inc. v. Circle K Props., Inc ., No. CV-16-02358-PHX-SPL, 2017 WL 2637886, at *4 (D. Ariz. Mar. 20, 2017) (emphasis added); (see generally CQESD Decl.; SDAAEF Decl.). The Individual Plaintiffs are not alleged to be members of the Organizational Plaintiffs. And to the extent the Organizational Plaintiffs seek to base representational standing on an unidentified member's taxpayer status, the Court's taxpayer standing analysis with respect to the Individual Plaintiffs forecloses this basis.
2. Individual Plaintiffs
The Individual Plaintiffs are District parents and schoolchildren and they are not Muslim. (FAC ¶¶ 10-14, 119-20); Hasson Decl. ¶ 4; He Decl. ¶ 4; Hu Decl. ¶ 4; Steel Decl. ¶ 4; Velazquez Decl. ¶ 4.) They aver that they possess Article III standing as (1) District taxpayers and (2) as schoolchildren and parents who are "spiritually affront[ed]" by the District's challenged conduct. (ECF No. 26-1 at 19.) The Court concludes that the Individual Plaintiffs lack taxpayer standing, but at least one Individual Plaintiff possesses standing based on the alleged spiritual harms and direct contact with challenged conduct.
a. Taxpayer Standing
" '[T]axpayer standing,' by its nature, requires an injury resulting from a government's expenditure of tax revenues ." Doe v. Madison Sch. Dist. No. 321 , 177 F.3d 789, 793 (9th Cir. 1999) (citing Clay v. Fort Wayne Cmty. Schs ., 76 F.3d 873, 879 (7th Cir. 1996) ) (emphasis added). A municipal or state taxpayer may have standing to pursue a "good-faith pocketbook" challenge to government conduct by showing that the challenged "activity is supported by an separate tax or paid from any particular appropriation or that it adds any sum whatever to the cost of conducting the school." Doremus v. Bd. of Educ ., 342 U.S. 429, 434, 72 S.Ct. 394, 96 L.Ed. 475 (1952) ; Plans, Inc. v. Sacramento City Unified Sch. Dist ., 319 F.3d 504, 506 (9th Cir. 2003) ("A good-faith pocketbook challenge identifies a measurable sum of public funds being used to further a challenged activity."). Allegations of specific amounts of money that the government spent solely on the challenged conduct are adequate. See Plans, Inc ., 319 F.3d at 508 (taxpayer standing when plaintiff identified public monies used to operate schools whose curriculum plaintiff challenged as "inherently religious" in violation of the Federal and California Constitutions); Cammack v. Waihee , 932 F.2d 765, 769 (9th Cir. 1991) (state and municipal taxpayer standing to challenge a state's declaration of Good Friday as a holiday because "state and municipal tax revenues fund the paid holiday for government employees").
The Individual Plaintiffs' allegations lack the particularity required for taxpayer standing. A plaintiff lacks taxpayer standing when he or she fails to allege a specific tax dollar appropriation or disbursement "spent solely" on the challenged conduct. See Madison Sch. Dist. No. 321 , 177 F.3d at 794 (no taxpayer standing to challenge graduation prayer because plaintiff "identifies no tax dollars the defendants spent solely on the graduation prayer," but rather only "ordinary costs of graduation that the school would pay whether or not the ceremony included a prayer"); Reimers v. Oregon , 863 F.2d 630 (9th Cir. 1989) (no taxpayer standing because taxpayer "does not challenge the disbursement of state funds on the chaplain program .... [i]nstead, he complains about the requirement that a specific religion ... be represented on the chaplain staff"). The FAC generally alleges that "Plaintiffs object to the use of taxpayer funds to enact, implement, and enforce the [ ] Initiative" and "to collaborate and engage in formal partnerships with CAIR-SD[.]" (FAC ¶¶ 125-26.) The Individual Plaintiffs further speculate about the use of generalized "taxpayer dollars." (Hasson Decl. ¶ 13; He Decl. ¶ 27; Hu Decl. ¶ 13; Steel Decl. ¶ 13; Velazquez Decl. ¶ 13.) Without more, these allegations and averments which assume that taxpayer funds must have been spent on the challenged conduct are insufficient. The Court will not endorse this unbounded view of taxpayer standing, which would vitiate Article III's standing limitation based on a plaintiff's mere assertion that he or she is a taxpayer. The Individual Plaintiffs lack taxpayer standing because they did not allege a pocketbook injury.
b. Alleged Spiritual Harm
"The concept of a 'concrete' injury is particularly elusive in the Establishment Clause context .... because the Establishment Clause is primarily aimed at protecting non-economic interests of a spiritual, as opposed to a physical or pecuniary, nature." Vasquez v. L.A. Cty ., 487 F.3d 1246, 1250 (9th Cir. 2007) (citing Suhre v. Haywood Cty ., 131 F.3d 1083, 1085 (4th Cir. 1997) ). "In a case arising from an alleged violation of the Establishment Clause, a plaintiff must show ... that he is 'directly affected by the laws and practices against which [his] complaints are directed.' " Trump v. Hawaii , --- U.S. ----, 138 S.Ct. 2392, 2416, 201 L.Ed.2d 775 (2018) (quoting Sch. Dist. of Abington Twp. v. Schempp , 374 U.S. 203, 224 n.9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) ). "[S]piritual harm resulting from unwelcome direct contact with an allegedly offensive religious (or anti-religious)" activity will support Article III standing. Vasquez , 487 F.3d at 1253.
The Supreme Court has recognized that "school children and their parents, who are directly affected by the laws and practices against which their complaints are directed" may have standing based on "a spiritual stake in First Amendment values." Sch. Dist. of Abington Twp. , 374 U.S. at 224 n.9, 83 S.Ct. 1560 ; Vasquez , 487 F.3d at 1251. In these circumstances, standing does not exist simply "because [a] complaint rest[s] on the Establishment Clause ... but because impressionable schoolchildren [a]re subjected to unwelcome religious exercises or [ar]e forced to assume special burdens to avoid them." Valley Forge Christian College , 454 U.S. at 486 n.22, 102 S.Ct. 752 ; see also ACLU v. Rabun Cty. Chamber of Commerce, Inc ., 698 F.2d 1098, 1108 (11th Cir. 1983) (plaintiffs had standing to challenge the location of a cross existed pursuant to Valley Forge because the plaintiffs "are presently forced to locate other camping areas or to have the right to use Black Rock Mountain State Park conditioned upon the acceptance of unwanted religious symbolism[.]").
Although spiritual injury may suffice for Article III standing when the injury is allegedly caused by direct contact with the challenged activity, certain harms are insufficient notwithstanding a plaintiff's invocation of the Establishment Clause. Mere "psychological consequence[s] produced by observation of conduct with which one disagrees" are insufficient to support standing even if "phrased in constitutional terms." Valley Forge , 454 U.S. at 473, 102 S.Ct. 752 ; see also id. at 487, 102 S.Ct. 752 ("Their claim that the Government has violated the Establishment Clause does not provide a special license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court. The federal courts were simply not constituted as ombudsmen of the general welfare."). Allegations of injury that are "no more than an 'abstract objection' " are an insufficient basis for standing. Caldwell v. Caldwell , 545 F.3d 1126, 1133 (9th Cir. 2008). "[A]n 'abstract stigmatic injury' resulting from ...outsider status" allegedly caused by government conduct with which a plaintiff has not direct contact is also insufficient. See Newdow v. Lefevre , 598 F.3d 638, 643 (9th Cir. 2010).
Many of the Individual Plaintiffs' allegations and averments of spiritual injury are insufficient to cross the elusive line which separates abstract stigmatic injuries from the circumstances which make a spiritual injury sufficiently concrete to invoke federal jurisdiction. For example, although the Plaintiffs allege that they "perceive the [ ] Initiative as the [ ] District's endorsement of Islam and a rejection of other religions" and that that Defendants' conduct "send[s] a clear message to Student Plaintiffs that they are outsiders, not full members of the school community, while sending an accompanying message that Muslim students are insiders, full members of the school community," (FAC ¶¶ 120, 133, 137, 142), entirely absent from the FAC are allegations of Plaintiffs' direct contact with any aspect of the Initiative or the measures which implement it. The Individual Plaintiffs' declarations similarly claim injury based on the Board's mere adoption of the Action Steps and being "directly offended" by the District's interactions with CAIR. (Hasson Decl. ¶¶ 7, 10; He Decl. ¶¶ 7-18; Hu Decl. ¶¶ 7, 10; Steel Decl. ¶¶ 7, 10; Velazquez Decl. ¶¶ 7, 10.) These allegations and averments appear insufficient to confer standing on the Individual Plaintiffs.
Nevertheless, one Individual Plaintiff avers that "[i]n November 2017, my son and I had direct contact with CAIR's book, as they are available for checkout at his school library." (He Decl. ¶ 26.) The Individual Plaintiffs otherwise aver that they are "spiritually affronted" by Defendants' conduct, which they declare has chilled their participation in District activities; additionally, one Plaintiff alleges that Defendants' conduct will cause the Plaintiff to remove the Plaintiff's child from the District. (Hasson Decl. ¶¶ 8-9, 11; He Decl. ¶¶ 7-18; Hu Decl. ¶¶ 8-9, 11; Steel Decl. ¶¶ 8-9, 11; Velazquez Decl. ¶¶ 8-9, 11.) These averments are consistent with the Individual Plaintiffs' allegation that they do not wish for their children to receive an education from a school district that, in their view, "endorse[s] Islam" and "reject[s] other religions[.]" (FAC ¶ 120.)
The Court finds that at least one of the Individual Plaintiffs has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Larson v. Valente , 456 U.S. 228, 238, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (citation and quotations omitted); see also Pickup v. Brown , 740 F.3d 1208, 1224 n.2 (9th Cir. 2013) ("[T]he presence in a suit of even one party with standing suffices to make a claim justiciable."); Akina v. Hawaii , 141 F. Supp. 3d 1106, 1125 (D. Haw. 2015). The Court has jurisdiction to entertain the request for preliminary injunctive relief.
B. Mootness
Mootness is "the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)." U.S. Parole Comm'n v. Geraghty , 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona , 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotation marks and citation omitted). "A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Knox v. SEIU, Local 1000 , 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ; Johnson v. Rancho Santiago Cmty. College Dist ., 623 F.3d 1011, 1018 (9th Cir. 2010) (internal quotations and citation omitted). A federal court must dismiss a case for lack of jurisdiction if it becomes moot. Pitts v. Terrible Herbst, Inc ., 653 F.3d 1081, 1086-87 (9th Cir. 2011). But "[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Knox , 567 U.S. at 307-08, 132 S.Ct. 2277 (quoting Ellis v. Railway Clerks , 466 U.S. 435, 442, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) ). When assessing mootness, a court should not conflate whether a plaintiff retains an interest in a case with the distinct issue of whether the plaintiff's claims are meritorious. See Al Otro Lado, Inc. v. Nielsen , 327 F.Supp.3d 1284, 1297-98, 2018 WL 3969700, at *7 (S.D. Cal. Aug. 20, 2018) (Bashant, J.).
Defendants' mootness challenge stems from a post-FAC Board action. Defendants argue that the "Board's action to ensure religious neutrality" in the Revised Policy "to prevent[ ] bullying" moots Plaintiffs' case. (ECF No. 32 at 1.) Plaintiffs dispute mootness on the ground that "the District is still working with CAIR to 'address Islamophobia' " and "to develop resources for 'addressing Islamophobia.' " (ECF No. 51 at 1, 3.) The Court concludes that the Revised Policy does not moot this case based on voluntary cessation. Nevertheless, the Revised Policy's rescission of the CAIR-related Action Step moots Plaintiffs' requested injunctive relief to enjoin Defendants from entering into a formal partnership with CAIR.
1. The District's Voluntary Cessation Does Not Moot this Case
Both sides recognize the voluntary cessation doctrine as the relevant framework for assessing Defendants' mootness challenge. (ECF No 26-1 at 18 n.70; ECF No. 32 at 8; ECF No. 51 at 3.). Defendants argue that Plaintiffs' claims in the FAC encompass the Initiative and the Action Steps, but "th[e] plan [i.e. , the Initiative], and the action steps to implement [it], were clearly reversed at a Board meeting on July 25, 2017." (ECF No. 32 at 9.) Thus, according to Defendants, there is no relief left for the Court to provide.
"A party 'cannot automatically moot a case simply by ending its unlawful conduct once sued,' else it 'could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where [it] left off, repeating this cycle until [it] achieves all [its] unlawful ends.' " United States v. Sanchez-Gomez , --- U.S. ----, 138 S.Ct. 1532, 1537 n.*, 200 L.Ed.2d 792 (2018) (quoting Already, LLC v. Nike, Inc ., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) ). For this reason, "voluntary cessation ... does not ordinarily render a case moot[.]" Rosebrock v. Mathis , 745 F.3d 963, 971 (9th Cir. 2014) (citation and quotations omitted). In certain circumstances, however, "voluntary cessation can yield mootness if a 'stringent' standard is met" by the defendant. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc ., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Under this standard, voluntary cessation moots a case only if "(1) there is no reasonable expectation that the wrong will be repeated, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Barnes v. Healy , 980 F.2d 572, 580 (9th Cir. 1992). The party asserting mootness based on voluntary cessation has a "heavy burden."
Friends of the Earth , 528 U.S. at 189, 120 S.Ct. 693 ; Rosebrock , 745 F.3d at 971.
Defendants' mootness argument relies on the Rosebrock factors applicable to a government defendant's voluntary cessation "not reflected in statutory changes or ... changes to ordinances or regulations." Rosebrock , 745 F.3d at 972. Pursuant to the Rosebrock factors, "mootness is more likely if":
(1) the policy change is evidenced by language that is broad in scope and unequivocal in tone; (2) the policy change fully addresses all of the objectionable measures that [the Government] officials took against the plaintiffs in th[e] case; (3) th[e] case [in question] was the catalyst for the agency's adoption of the new policy (4) the policy has been in place for a long time when we consider mootness; and (5) since [the policy's] implementation the agency's officials have not engaged in conduct similar to that challenged by the plaintiff[.]
Id. (internal citations omitted). In assessing these factors, courts may "presume that a government entity is acting in good faith when it changes its policy[.]" Id. at 971. Defendants easily satisfy the third Rosebrock factor. The Revised Policy was adopted some two months after the original Complaint was filed, clearly in response to this lawsuit and the backlash to the Initiative and the Action Steps. (Compare ECF No. 1 with LiMandri Decl. ¶ 32 Ex. 30; Anjan Decl. ¶ 6 Exs. E, F.)
However, even affording Defendants a presumption of good faith, Defendants, have not otherwise met their heavy burden to show mootness through voluntary cessation. The Rosebrock factors are largely variations of a court's basic mootness inquiry into whether "the allegedly wrongful behavior could not reasonably be expected to recur[.]" City of Mesquite v. Aladdin's Castle, Inc ., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) (emphasis added). "[I]n cases of voluntary cessation, the defendant bears a 'formidable burden' " in making this showing. R.G. v. Koller , 415 F.Supp.2d 1129, 1140 (D. Haw. 2006). As is relevant here, "the form the governmental action takes is critical and, sometimes, dispositive" to the voluntary cessation inquiry. Yonas Fikre v. FBI , 904 F.3d 1033, 1038, 2018 WL 4495552, at *3 (9th Cir. Sept. 20, 2018). The Revised Policy cannot show mootness by voluntary cessation because it leaves intact the "wrongful behavior" Plaintiffs allege and seek to enjoin.
For one, the Initiative-the directive to "adopt a plan to address Islamophobia and anti-Muslim bullying"-and its underlying purpose remain intact. Although Defendants contend that the Revised Policy "rescinded" both the July 26, 2016 Initiative and the April 4, 2017 Action Steps (ECF No. 32 at 9), the Revised Policy refers solely to the Action Steps. (LiMandri Decl. ¶ 32 Ex. 30; Anjan Decl. ¶ 6 Ex. E.) By its own terms then, the Revised Policy cannot moot Plaintiffs' challenge to the Initiative. The preliminary injunction record shows that addressing Islamophobia and anti-Muslim bullying remains an objective of the District. (LiMandri Decl. ¶ 36 Ex. 34; LiMandri Supp. Decl. ¶¶ 3-6 Exs. 53-56.) The District maintains a webpage on "Addressing Bullying of Muslim students." (ECF No. 51 at 9; LiMandri Decl. ¶ 25 Ex. 23.) The page expressly notes that "[t]he District recently announced an intent to take action specifically to address the bullying of Muslim students" and "the proposed action will be a part of the district's efforts to protect all students from bullying, intimidation, and discrimination." Addressing the Bullying of Muslim Students , San Diego Unified School District, https://www.sandiegounified.org/addressing-bullying-muslim-students (last accessed September 19, 2018); (LiMandri Decl. ¶ 25 Ex. 23).
Second, although the Revised Policy clearly clarifies the District's intention not to single out a particular religion, government "action that is not governed by clear or codified procedures cannot moot a claim[.]" McCormack v. Herzog , 788 F.3d 1017, 1025 (9th Cir. 2015). In this case, the Revised Policy is silent on and therefore cannot rescind many Action Steps identified in the April 4, 2017 presentation to the Board. (Compare LiMandri Decl. ¶ 7 Ex. 5 at 55-57 with LiMandri Decl. ¶ 32 Ex. 30.) Other items covered in the Revised Policy are consistent with several Action Steps. Although the Court can appreciate Defendants' argument that the Revised Policy shows the District's religion-neutrality (ECF No. 55 at 1-8), the Court is reticent to conflate the merits arguments with mootness.
Finally, although the Revised Policy "redirected [staff] from forming a formal partnership with CAIR," it does not sever the District's ties with CAIR, nor prevent CAIR from addressing Islamophobia in the District-relief Plaintiffs seek. The District has received CAIR's suggestions for resources. (LiMandri Decl. ¶¶ 36, 38 Exs. 34, 36; LiMandri Supp. Decl. ¶¶ 7, 10 Exs. 57, 60.) The District has otherwise solicited information from and discussed with CAIR how to address Islamophobia. (LiMandri Supp. Dec. ¶¶ 5-6 Exs. 55-56.) And CAIR participates in the IRCC, which Defendants have expressly told CAIR may be used to recommend additional resources and curriculum on addressing Islamophobia. (Anjan Decl. ¶¶ 9-10; Santos Decl. ¶¶ 4-5; LiMandri Supp. Decl. ¶ 17 Ex. 67.) In sum, the Revised Policy is not a wholesale and clear revocation of the District's Initiative to address Islamophobia and anti-Muslim bullying, the Action Steps implementing it, or reliance on CAIR to support the District's measures. There is a continuing stake in these proceedings sufficient to support the Court's jurisdiction.
2. The Revised Policy's Impact on the Requested Relief
Although Defendants have not met their heavy burden to show that this entire case is moot based on voluntary cessation, the Revised Policy nevertheless impacts the relief Plaintiffs seek. First, it is clear to the Court that part of the Revised Policy substantially undermines the need for, if not moots, Plaintiffs' request for injunctive relief to enjoin Defendants from creating a formal partnership with CAIR. Based on its plain terms, the Revised Policy eliminates the prior Action Step regarding the creation of a formal partnership between CAIR and the District to implement the Initiative. (Contrast LiMandri Decl. ¶ 7 Ex. 5 at 55-57 with LiMandri Decl. ¶ 32 Ex. 30.) The record shows that Defendants have not created a formal partnership with CAIR to achieve the Initiative's objectives, but have instead entered into a formal partnership with a different organization. CAIR recognizes that the District's action forecloses a formal relationship with CAIR. (ECF No. 36.) And Plaintiffs do not provide evidence showing any credible possibility that the District will enter into a formal partnership with CAIR to address Islamophobia and anti-Muslim bullying.
Second, although the Revised Policy does not otherwise moot Plaintiffs' requests for preliminary injunctive relief, the Revised Policy may impact the Court's preliminary injunction analysis. Although a defendant's post-complaint conduct may not moot a case such that a court lacks jurisdiction, changes in a defendant's conduct "may ... render[ ] certain aspects of Plaintiffs' originally-alleged harm no longer imminent[.]" McFalls v. Purdue , No. 3:16-cv-2116-SI, 2018 WL 785866, at *10 (D. Or. Feb. 8, 2018). Changes in a defendant's conduct are therefore relevant to a court's consideration of whether the plaintiff has carried his or her burden to demonstrate a likelihood of irreparable harm. See Lofton v. Verizon Wireless (VAW) LLC , 586 Fed. App'x 420, 421 (9th Cir. 2014) (citing TRW, Inc. v. F.T.C. , 647 F.2d 942, 953-54 (9th Cir. 1981) ). Plaintiffs implicitly recognize the relevance of the Revised Policy to the merits of their requested preliminary injunctive relief by arguing that "the Revised Policy not only fails to moot this case, it is unconstitutional." (ECF No. 51 at 4.) Defendants also argue about the impact of the Revised Policy on Plaintiffs' request. (ECF No. 55 at 1-8.) Accordingly, the Court finds it appropriate to consider the Revised Policy in assessing whether Plaintiffs have met their burden to show that they are entitled to preliminary injunctive relief.
II. Plaintiffs Have Not Shown They Are Entitled to a Preliminary Injunction
A. Likelihood of Success on the Merits
Plaintiffs contend that they have shown a likelihood of success on the merits of their constitutional claims because Defendants did not directly address Plaintiffs' briefing on this issue. (ECF No. 51 at 3.) The Court unequivocally rejects this contention. Despite the vacuum in Defendants' opposition on merits element, CAIR's amicus directly addresses it. (ECF No. 36 at 14-25.)
More importantly, as the movants, it is Plaintiffs' burden to show they are entitled to a preliminary injunction. See Winter , 555 U.S. at 22, 129 S.Ct. 365 ("injunctive relief ... may only be awarded upon a clear showing that the plaintiff is entitled to such relief" (emphasis added) ); see also Ctr. for Competitive Politics v. Harris , 784 F.3d 1307, 1312 (9th Cir. 2015) (movant "bears the heavy burden of making a 'clear showing' that it [i]s entitled to a preliminary injunction"); Villegas Lopez v. Brewer , 680 F.3d 1068, 1072 (9th Cir. 2012) (preliminary injunction "should not be granted unless the movant , by a clear showing, carries the burden of persuasion" (emphasis added) (original emphasis omitted) ). Treating as a foregone conclusion that Plaintiffs have shown a likelihood of success is inconsistent with their burden. It is furthermore inappropriate in this case because Plaintiffs rely on the asserted merits of their First Amendment claim as the panacea for the remaining preliminary injunction elements. (ECF No. 26-1 at 20 (irreparable harm), id. at 21 (balance of the hardships and public interest); ECF No. 51 at 11.) The Court thus turns to Plaintiffs' merits showing and concludes that they have not shown a likelihood of success on the merits of the claims on which they premise their need for preliminary injunctive relief. Since the requested relief is not warranted, the Court will not consider the parties' arguments regarding the scope of such relief. (ECF No. 32 at 16-20; ECF No. 51 at 17-20.)
1. Constitutional Avoidance Doctrine
Invoking the constitutional avoidance doctrine, Plaintiffs argue that the Court should consider their No Aid and No Preference Clause California Constitutional claims before addressing their likelihood of success on their Establishment Clause claim. (ECF No. 26-1 at 10.) The Court agrees in part.
Pursuant to the avoidance doctrine, a court avoids federal constitutional determinations if a state law decisional ground is available, even one of state constitutional law. Kuba v. 1-A Agric. Ass'n , 387 F.3d 850, 856 (9th Cir. 2004) ("[F]ederal courts should not decide federal constitutional issues when alternative grounds yielding the same relief are available"). Federal courts have invoked the constitutional avoidance doctrine to address No Aid Clause claims prior to consideration of First Amendment claims. See Barnes-Wallace v. City of San Diego , 704 F.3d 1067, 1078 (9th Cir. 2012) (addressing plaintiffs' California Constitution claims under the No Aid Clause). Thus, the Court will consider Plaintiffs' likelihood of success on their No Aid Clause claim before addressing their Establishment Clause claim.
However, Plaintiffs' No Preference Clause claim need not be separately analyzed before assessing their First Amendment claim. It is true that there is no "counterpart" to the No Preference Clause's "language" in the Federal Constitution. Vernon v. City of Los Angeles , 27 F.3d 1385, 1395 (9th Cir. 1994). The No Preference Clause guarantees the "[f]ree exercise and enjoyment of religion without discrimination or preference," Cal. Const., art. I § 4, language that is absent from the Federal Constitution. Yet, the California Supreme Court has made clear that when government activity passes muster under the Establishment Clause, "it follows that the [activity] is neither a governmental preference for or discrimination against religion" and, thus, satisfies the No Preference Clause. E. Bay Asian Local Dev. Corp. v. California , 24 Cal.4th 693, 102 Cal.Rptr.2d 280, 13 P.3d 1122, 1139 (2000) ; see also Vernon , 27 F.3d at 1396 ("[C]alifornia courts have recognized that an analysis of establishment claims under the California Constitution frequently produces the same results as one under the federal constitution."). Specifically, a governmental action that satisfies the test of Lemon v. Kurtzman , 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), for permissibility under the federal Establishment Clause necessarily passes muster under the California No Preference Clause." Barnes-Wallace , 704 F.3d at 1082 (citing E. Bay Asian Local Dev. Corp. , 102 Cal.Rptr.2d 280, 13 P.3d at 1139 ).
The coextensive means for resolving No Preference and Establishment Clause claims means that the Court need not separately analyze Plaintiffs' No Preference claim. See Vernon , 27 F.3d at 1392 ("Where the state constitutional provisions are coextensive with related federal constitutional provisions, [courts] may decide the federal constitutional claims because that analysis will also decide the state constitutional claims."). Application of the Lemon test will determine Plaintiffs' likelihood of success on both claims. See Barnes-Wallace , 704 F.3d at 1082-84 ; Davies v. L.A. Cty. Bd. of Supervisors , 177 F.Supp.3d 1194, 1215 (C.D. Cal. 2016) ; Am. Humanist Ass'n v. City of Lake Elsinore , No. 5:13-cv-00989-SVW-OPx, 2014 WL 791800, at *6 (C.D. Cal. Feb. 25, 2014).
2. The No Aid Clause Claim
The California Constitution's No Aid Clause prohibits the government from "mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose [.]" Cal. Const. art. XVI § 5. "[T]he provision was intended to insure the separation of church and state and to guarantee that the power, authority, and financial resources of the government shall never be devoted to the advancement or support of religious or sectarian purposes." California Educ. Facilities Auth. v. Priest , 12 Cal.3d 593, 116 Cal.Rptr. 361, 526 P.2d 513, 520 (1974). Because of its broad scope, the government may violate the No Aid Clause even without providing a financial benefit or tangible aid by, for example, lending its prestige and power" to a "sectarian purpose." Paulson v. City of San Diego , 294 F.3d 1124, 113 (9th Cir. 2002) (en banc) (quoting Feminist Women' Health Ctr., Inc. v. Philibosian , 157 Cal.App.3d 1076, 203 Cal.Rptr. 918, 920-22, 927 (1984) ). But the No Aid Clause "has never been interpreted ... to require governmental hostility to religion, nor to prohibit a religious institution from receiving an indirect, remote, and incidental benefit" when there exists "a secular primary purpose." Priest , 116 Cal.Rptr. 361, 526 P.2d at 521.
Distilling a test from California state court cases, the Ninth Circuit has stated that the No Aid Clause "prohibits the government from (1) granting a benefit in any form (2) to any sectarian purpose (3) regardless of the government's secular purpose (4) unless the benefit is properly characterized as indirect, remote,