Important Teacher Free Speech Decision With Ironic Twist

The Ninth Circuit issued a decision on August 19, 2011 which is an important victory for teachers and academic freedom in school. In Farnan v Capistrano Unified School District the court ruled that a high school teacher could not be sued for violating the Constitutional rights of a student who alleged that the teacher had made disparaging comments about religion, and Christianity in particular.

This case is important because it reinforces the academic freedom we expect to be granted our teachers, even those in high school. But it also demonstrates something that lawyers are familiar with but which can be frustrating for others. One of the precedents relied on in this case was a very recent Supreme Court decision that immunized Attorney General John Ashcroft from suit, a ruling that most civil libertarians disagree with. But first, the Farnan case.

The facts in the Farnan case are straightforward. Farnan was a fifteen year old student in an advanced placement course on European history. The course materials made clear that the role of religion would be discussed at length. During the discussions, the teacher, James Corbett, made some very pointed remarks about how serfs were duped by their religious beliefs and how the churches manipulated them. He compared the situation of the serfs to Republican voters in red states who are influenced by religion. He also equated belief in religion to belief in the Spaghetti Monster behind the moon. Here's an example,

I mean, all I’m saying is that, you know, the people who want to make the argument that God did it, there is as much evidence that God did it as there is that there is a giant spaghetti monster living behind the moon who did it. . . .

Farnan the student, took offense, but instead of talking to his teacher, he quit the class and sued. He argued that his first Amendment right to free exercise of religion and against the establishment of religion were violated and that he was entitled to relief under 42 USC 1983. That is the 1871 civil rights statute which is used to sue government officials for Constitutional violations.

The Court noted at the outset that the potential for liability existed because the Establishment Clause applies “not only to official condonement of a particular religion or religious belief, but also to official disapproval or hostility toward religion." Though having reached that threshold, the Circuit dismissed the lawsuit because it found the teacher Corbett was entitled to qualified immunity from suit. It reached this result by applying the two part test for qualified immunity,

(1) whether, taking the facts in the light most favorable to the nonmoving party, the government official’s conduct violated a constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct.

The court noted that you need only meet one part of the test to find immunity and in this case the court held that the second test was not satisfied.

We have little trouble concluding that the law was not clearly established at the time of the events in question — there has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion.

While that was the basis for the decision and could have been the end of the discussion the court went on to describe why it thought Corbett's statements were not Constitutionally inappropriate.

The Supreme Court has long recognized the importance of protecting the “robust exchange of ideas” in education, “which discovers truth ‘out of a multitude of tongues.’ . . . This academic freedom will sometimes lead to the examination of controversial issues. Both parties agree that AP Euro could not be taught without discussing religion. We have no doubt that the freedom to have a frank discussion about the role of religion in history is an integral part of any advanced history course. Indeed, a collective of organizations including the American Association of School Administrators, American Federation of Teachers, National Education Association and National School Boards Association, has long acknowledged that “[b]ecause religion plays a significant role in history and society, study about religion is essential to understanding both the nation and the world.”

. . .

In broaching controversial issues like religion, teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority. . . . But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we 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.

It is a good well reasoned decision, but will it stand if it is appealed to the Supreme Court? Well, that's the rub. Because in reaching this decision the Ninth Circuit relied on a two month old Supreme Court decision of al-Kidd v Ashcroft in which The Supreme Court reversed the Ninth's ruling with very harsh language. In that case, Al-Kidd was arrested and detained under the material witness statute. He sued Ashcroft arguing that the statute was used as a pretext to detain him. The Supreme Court said that Ashcroft was eligible for qualified immunity because at the time of al-Kidd's arrest, "not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional."

We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity.

In writing its decision in Al-Kidd, Scalia castigate the Ninth Circuit for its contrary ruling, saying

We have repeatedly told courts—and the Ninth Circuit in particular, . . . not to define clearly established law at a high level of generality. . . . The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.

Whether one agrees with the Al-Kidd ruling or not, the standard is clear. And that standard was applied in the Farnan case. A reversal by the Supreme Court would require some legal contortions by Scalia and the rest of the conservatives, the like of which might be difficult even for them.

One final note. This case is in marked contrast to the recent 7th Circuit decision in Vance v Rumsfeld where the court held that Rumsfeld could be sued for violating the Constitutional rights of Americans in a war zone. The court held that Rumsfeld was not entitled to qualified immunity because,

The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.

Here we have the opposite. A case where there is no hint from statutes or prior decisions that the actions are unconstitutional and, beyond that, where the court has serious doubts that they are unconstitutional.