Metropolitan News-Enterprise


Monday, August 22, 2011


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Court Tosses Suit Accusing Teacher of Violating First Amendment By Disparaging Religion




A former high school student in Orange County cannot sue his Advanced Placement European History teacher for making comments the student says were hostile to Christianity, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed a judgment in favor of Dr. James Corbett. Chad Farnan, who was a 15-year-old sophomore in Corbett’s class in fall 2007, contended that Corbett’s comments violated the Establishment Clause.

Judge Raymond Fisher, writing for the court, said the comments were protected by qualified immunity. Noting that “there has never been any prior reported case holding that a teacher violated the Constitution under comparable circumstances,” and that Farnan’s claim for declaratory relief is moot because he has graduated, Fisher said it was unnecessary for the court to resolve the First Amendment issue.

Farnan’s attorney, Robert Tyler of Murrieta-based Advocates for Faith and Freedom, said he would seek rehearing or Supreme Court review.

“This was a perfect opportunity for the court to address the issue one way or another,” Tyler told The Associated Press. “Instead, it failed to give guidance on the constitutional question.”

But UC Irvine law school dean Erwin Chemerinsky, who represented Corbett on appeal, said he was “delighted at the result” and that he expected the court to decide the case based on qualified immunity because it was an “easy” path to the correct result. Even without firm resolution of the First Amendment question, he added, the case is “tremendously important” because it holds that “teachers can’t be sued for what they say in class about religion.”

The lack of precedent, he said, simply reflects the fact that there aren’t many high school students who want to sue their teachers because they disagree with their comments in class.

 In doing just that, Farnan accused Corbett of disparaging Christianity, and in particularly its theology of creation, as “profoundly disturbing” and based on “very faulty logic.” The student offered tapes of some of Corbett’s lectures—some of which were selectively edited, the teacher claimed.

On one of the tapes, Corbett is heard saying that “there is as much evidence God [created the universe] as there is that there is a giant spaghetti monster living behind the moon who did it.”

In support of his motion for summary judgment, and in opposition to the plaintiff’s, Corbett explained that he is a Christian who regularly prays and attends church services. The remarks he makes in class, counsel said, are part of an “intentionally provocative” pedagogy designed “to elicit responses from his students and to help them develop critical thinking skills.”

Students, he said, are encouraged to express their own thoughts, without fear of reprisal. A letter to that effect was given to Farnan and each of his classmates at the beginning of the term, the teacher noted.

Neither Farnan nor his parents expressed any dissatisfaction to the teacher prior to Farnan’s dropping the class and filing his lawsuit, which also complained of comments made by the teacher about John Peloza, who taught biology at the school several years earlier.

Peloza had sued the district on free speech and Establishment Clause grounds after being directed not to teach creationism in his biology class. The Ninth Circuit rejected his action in 1994 and the Supreme Court denied certiorari.

When a student in Farnan’s class asked about that action, Corbett explained that he was the adviser to the student newspaper at the time, and that Peloza had sued him and the district over an editorial suggesting that Peloza was teaching religion, not biology.

Corbett explained that he and other teachers were asked by the district’s counsel not to comment on the controversy while the suit was being litigated. His response, he explained, was that the district could refuse to defend him, but he would not allow Peloza “to propagandize kids with this religious, superstitious, nonsense.”

U.S. District Judge James V. Selna of the Central District of California, in ruling on the cross-motions for summary judgment, held that the Peloza remarks violated the Establishment Clause but were protected by qualified immunity. None of the other comments complained of by the plaintiff, the judge ruled, violated the constitutional provision.

All parties appealed, but Farnan eventually dropped his appeal as to the district, and as to Corbett in his official capacity, leaving Corbett—in his individual capacity—as the sole party adverse to the plaintiff. The California Teachers Association and Capistrano Unified Education Association, which intervened in support of Corbett in the district court, also supported him on appeal.

Fisher, writing for the Ninth Circuit, said the court would not invoke the “capable of repetition, yet evading review” exception to the mootness doctrine because there was no showing that the issue will evade review in the future.

The judge acknowledged that while mootness precludes declaratory or injunctive relief, Farnan would be entitled to damages if he could prove the violation of a clearly established constitutional right. But if there is a right not to have one’s religious beliefs disparaged by a teacher during class, Fisher said, “nothing in the law would make clear to a reasonable person that he might violate the Establishment Clause by making the challenged statements in the context of a classroom discussion in an Advanced Placement history course.”

He distinguished cases holding that school officials violated constitutional rights by promoting religion, such as by prohibiting the teaching of evolution or requiring the reading of Bible verses. Critical discussion of the historic role of religion, the jurist said, is “an integral part of any advanced history class.”

Teachers, he acknowledged, have a duty to balance sensitivity to students’ personal beliefs and their desire to foster critical thinking. But courts, the judge said, “must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.”

Fisher was joined in the opinion by Senior Judge A. Wallace Tashima and Chief Judge Mark L. Wolf of the District of Massachusetts, sitting by designation.

The case is C.F. v. Capistrano Unified School District, 09-56689.


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