Appeals from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding D.C. No. 8:07-cv-01434-JVS-AN
The opinion of the court was delivered by: Fisher, Circuit Judge:
Argued and Submitted February 11, 2011-Pasadena, California
Before: A. Wallace Tashima and Raymond C. Fisher, Circuit Judges, and Mark L. Wolf, Chief District Judge.*fn1
The First Amendment provides that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. The government runs afoul of the Establishment Clause through disparagement as well as endorsement of religion. See Catholic League for Religious & Civil Rights v. City & Cnty. of S.F., 624 F.3d 1043, 1060 (9th Cir. 2010) (en banc) (Silverman, J., concurring); id. at 1053-54 (Kleinfeld, J., dissenting); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). In this case, a former public high school student alleges that his history teacher violated his rights under the Establishment Clause by making comments during class that were hostile to religion in general, and to Christianity in particular. Mindful that there has never been any prior reported case holding that a teacher violated the Constitution under comparable circumstances, we affirm the district court's conclusion that the teacher is entitled to qualified immunity. Because it is readily apparent that the law was not clearly established at the time of the events in question, and because we may resolve the appeal on that basis alone, we decline to pass upon the constitutionality of the teacher's challenged statements. See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815-18 (2009).
In fall 2007, Chad Farnan was a 15-year-old sophomore enrolled in Dr. James Corbett's Advanced Placement European History (AP Euro) class at Capistrano Valley High School. Corbett has taught in the Capistrano Unified School District (District) for more than 20 years, and has taught AP Euro for more than 16 years. He is presently the only teacher who teaches AP Euro at Capistrano Valley High School. Corbett is a Christian who regularly prays and attends church services. Farnan is also a Christian, and believes in creationism. He was offended by comments Corbett made during class that Farnan characterizes as "derogatory, disparaging, and belittling regarding religion and Christianity in particular." Neither Farnan nor his parents ever discussed this concern with Corbett or any other school official. Rather, before completing the first semester of AP Euro, Farnan withdrew from the class and filed this lawsuit under 42 U.S.C. § 1983 alleging a violation of his First Amendment rights under the Establishment Clause. Farnan has since graduated from high school and begun college.
AP Euro is a college-level course for which students can receive college credit if they pass the AP exam administered by the College Board. The AP Euro standards are equivalent to a University of California course. The College Board dictates that AP Euro cover a number of topics touching on religion, including: "[c]hanges in religious thought and institutions," "[s]ecularization of learning and culture," "[s]cientific and technological developments and their consequences," and "[c]hanges in elite and popular culture, such as new attitudes toward religion, the family, work, and ritual." The College Board's course description explains that these "cultural, economic, political, and social developments . . . played a fundamental role in shaping the world in which [we] live," and accordingly provide "context for understanding the development of contemporary institutions, the role of continuity and change in present-day society and politics, and the evolution of current forms of artistic expression and intellectual discourse."
In summer 2007, Corbett sent home a letter to incoming students who had signed up for his AP Euro class, including Farnan. In the letter, Corbett explained how the class would operate: "Most days we will spend a few minutes (sometimes more) at the beginning of class discussing current events . . . .
Discussion will be quite provocative and focus on the 'lessons' of history. My goal is to have you go home with something that will provoke discussion with your parents." Corbett assured students that they "may offer any perspective without concern that anything they say will impact either my attitude toward them or their grades. I encourage a full range of views." Farnan received and read the letter.
Corbett describes his approach as seeking "to teach students to be able to identify central questions and construct logical thesis statements," to "view a variety of historical materials, both analytically and critically, to weigh historical evidence, and to arrive at conclusions based on informed judgment." His "pedagogy is intentionally provocative in order to elicit responses from his students and to help them develop critical thinking skills." He encourages students to "question and try to come up with a[n] analysis of what is true [and] is not true, from [a] historical perspective." Corbett told his AP Euro students that, "it is completely safe, in here anyway, to disagree with me, make a comment, whatever you want to say. I don't care. The only thing you'll get from me in response is, 'On what basis . . . have you come up with this particular perspective?' . . . I mean, there's almost always more than one point of view on stuff."
District Judge Selna's thoughtful decision, C.F. v. Capistrano Unified Sch. Dist., 615 F. Supp. 2d 1137 (C.D. Cal. 2009) ("Farnan I"), describes in detail the statements made by Corbett that Farnan takes issue with, and we quote from a selection of them here.*fn3 Farnan challenges, for example, Cor-bett's commentary on how religion influenced serfs' reactions to Joseph II's attempts to spearhead reform in the Holy Roman Empire:
[H]ere is Joseph II. He's trying, for example, to end serfdom. Serfdom in which the peasants, the Ser[f] class, on these estates [were], literally, property. They had no rights to speak of at all. He doesn't just go that far. I mean, he tries to get them land. He . . . really has the interest of this class of people at heart, and the - the reforms that he makes really are going to make the lives of these peasants massively better. So why do the peasants oppose him? . . . Because he also tried to reform religion, and the peasants love their church.
It's the same thing here. You know, you go down to Georgia, Alabama, Mississippi, all these states that are as red as they could possibly be, as right-wing Republican as you could possibly be. [But] [w]hen you first present these people with the economic policies of the Democratic party, they are all Democrats. Virtually all the social programs they like. . . .
How do you get the peasants to oppose something that is in their best interest? Religion. You have to have something that is irrational to counter that rational approach. No problem. . . . [W]hen you put on your Jesus glasses, you can't see the truth. Um, Joseph made these reforms with no consultation, with no consent. (Inaudible) in the state.
Now, the father of modern conservatism is [Edmund] Burke. He's in this chapter. And [Edmund] Burke made a very good point here that Joseph II should have paid attention to. You cannot overturn long-held traditions overnight without causing chaos, you know. You need to approach it by getting people some education, and you need to move it in a way that gets their support before you do anything. . . .
Farnan also takes issue with statements Corbett made about the relationship between religion and ...