Saturday, August 20, 2011


Parsing Public Pronouncements

A three judge panel of the Ninth Circuit Court of Appeals has thrown out the case against James Corbett, a Capistrano (California) Valley High School teacher, brought by Chad Farnan, a former student, who claimed that Corbett "violated his rights under the Establishment Clause by making comments during class that were hostile to religion in general, and to Christianity in particular."

I've discussed this case before but the gist of it was that Corbett, in his "advanced placement" European history course, made certain ... let's call them disparaging ... remarks about religion in general, Christianity in more particular, and especially about creationism. The Circuit Court gives what appears to be a complete list of the remarks complained of by Farnan.

The District Court had thrown out all of Farnan's complaints except the one statement by Corbett that creationism is "religious, superstitious nonsense."

The Circuit Court decision, however, contains language that I can readily foresee the Discoveryless Institute glomming onto in furtherance of its campaign to dumb down American youth. I think the decision is less favorable to them than it might appear at first blush but, to explain its import, I'm going to have to try to lead you through some arcane aspects of American constitutional law.

First of all, here is the language that the DI may find comfort in (with the citations and quotation marks removed):

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.' Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding. Academic freedom is an essential for responsible teachers. To prepare students for adult roles in a democratic society, teachers and the schools must try to maintain an atmosphere of free inquiry. This academic freedom will sometimes lead to the examination of controversial issues. ...

Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. 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.
Of course, the DI maintains that "Darwinism" fosters a philosophical/theological viewpoint of "materialism" and they have relentlessly pushed a notion of "academic freedom" whereby individual teachers should be allowed to teach "the full range of scientific views regarding biological and chemical evolution." That position [cough] evolved from their previous position that teachers who wanted to should be allowed to teach about intelligent design, but teachers should not be required to teach about it, which, in turn, evolved from their previous position that ID would replace evolutionary science.

Everyone, friend and foe alike, recognize that this is just a ploy to allow creationist teachers to inject the same old tired creationist arguments into public school science classes but that doesn't mean the DI is going to stop anytime soon. The apparent point of urging individual teachers to raise ID, and/or the "creation science" arguments adopted by ID advocates, is to make it more difficult for those who oppose pseudoscience to sue to end the practice.

Now, to understand what the Circuit Court did, you have to first understand that the lawsuit that was dismissed was only against Corbett in his personal capacity. Farnan's suit against the school district had been dismissed by the District Court because a "supervisor [e.g. a school administration or school board] is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." There was no evidence that the school district knew or approved of the one, off-the-cuff, remark by Corbett that the District Court found to be a violation. Farnan then "settled" against the district by dropping any further proceedings in return for the district agreeing not to seek recovery of its legal expenses.

When a government official is sued in his personal capacity, there is what is called an "affirmative defense" of "qualified immunity." It is "affirmative" because it must be plead in the defendant's answer to prevent surprise to the plaintiff.

The simplest way to explain qualified immunity is, if a government official acts in an unconstitutional manner, but does so "in good faith" (i.e. without a nefarious intent), he or she cannot be sued in his or her personal capacity and the only recourse the complainant has is against the governmental arm the individual official represents. Since it had already been determined that the school district was not liable, a finding that Corbett had qualified immunity in this instance ends the case.

Much of the Circuit Court decision involves whether the District Court was correct to allow Corbett, after most of the complaints were dismissed, to amend his answer to assert the qualified immunity defense. The Circuit Court found that it was permissible and that part of the decision is only of interest to lawyers.

Since the issue on qualified immunity is the good faith of the official, an important aspect is whether the official knew, or had reason to know, that what he or she was doing was unconstitutional. As the Circuit Court put it:

Governmental officials generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In evaluating whether a right is clearly established, we look to the state of the law at the time of the incident in question. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Courts do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. That standard is not met here — nothing put Corbett on notice that his statements might violate the Establishment Clause.

The Supreme Court has recently reiterated that we must not "define clearly established law at a high level of generality" when analyzing whether the qualified immunity standard is met. Rather, the right alleged to have been violated must be defined in a "more particularized" manner than, for example, "the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness." That is the fundamental problem with Farnan's contention that qualified immunity does not protect Corbett. Farnan asserts that "[i]t has been clearly established for many years that the government must remain neutral with regard to religion, and it may not show its disapproval of religion." This overbroad proposition, "cast at a high level of generality," is just the sort of sweeping statement of the law that is inappropriate for assessing whether qualified immunity applies.
Now it should be obvious from the above why this case is not necessarily helpful to the DI's strategy. For starters, there is a plethora of cases stating that teaching creationism in public school science classes is unconstitutional and one celebrated and well-reasoned case holding that ID is creationism. That is arguably enough to put any teacher on notice that teaching ID as valid science is unconstitutional.

It is trickier with the "the full range of scientific views regarding biological and chemical evolution" ploy. A foundation will have to be laid that the "scientific views" against evolution are, in fact, just ID/creationism ... something that, ironically, would be made easier if the teacher uses the DI's faux textbook, Explore Evolution, in class.

More importantly, the first thing for science supporters to do when some teacher attempts this strategy is to complain loudly, often and in detail to the school board, the school administration and the teacher showing how the material is unconstitutional. Neither the school board nor the school administration can claim qualified immunity and, as long as they know what is going on, they are responsible for the individual teacher's actions. And a teacher's immunity lasts only as long as it is plausible that he or she did not know that what was being done is unconstitutional.

That last point raises something else that needs to be discussed. Contrary to what the NCSE asserts Corbett was not 'vindicated.'

The Court of Appeals reiterated that 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. The Court did not disturb the ruling of the District Court that Corbett violated Farnan's Establishment Clause rights.

If Corbett, or any teacher coming after him, wants to call creationism "religious, superstitious nonsense," they had best be warned that the defense of qualified immunity may no longer be available to them ... precisely because there is now a case making plain that such statements by public school teachers are constitutionally improper.

What the Court should have written:

To Jews, Muslims, Hindus and dozens of other religions, the New Testament is “Christian Superstition,” just as their views are superstition to Christians. A government actor's reference to religious beliefs as “superstition,” shows respect for all by favoring none. America has Jews, Hindus, Bahai, Muslims, Buddhists, and 276 other judicially recognized "religions." Chad would demand a special place for his views, but in America, all beliefs should be treated equally by government.

Ah well.... better luck next time.

Jim Corbett
The phrase "religious, superstitious nonsense" certainly does sound hostile toward one who holds such views. But consider: creationism certainly is a religious view. Creationist arguments, which must deny so much of every science, become so convoluted and inconsistent that it is accurate to characterize them as nonsense. And superstition is based on a lack of understanding of causation, ascribing conditions and events to some magical or godlike power.
I'm Jim Corbett. You seem to have a good understanding of law, but what you, and many others, failed to recognize is that my district supplied attorney advised me to seek a summary judgment. That tactic requires that all the facts, as presented by the plaintiff, be accepted truth, without challenge. I didn't realize I wouldn't be able to challenge the truth of Chad's claims. Had I known, I would have requested a jury trial. Just a couple of examples: Chad or his attorneys edited the tapes. Chad recorded me in violation of state law which requires the written permission of both teacher and principal. Chad claimed that the Biblical flood was factually true because he saw it on the history channel. His mother claimed she "knew" Washington prayed because the Farnans have a picture of him praying in their home. Here's what the decision should have said:

Chad’s lawyers argued that questioning “Creation Science” violated the First Amendment, but American law gives no special place to any religion. One person’s religion is another person’s superstition. To Jews, Muslims, Hindus and dozens of other religions, the New Testament is “Christian Superstition,” just as their views are superstition to Christians. When a government actor refers to a religious belief as “superstition,” He shows respect for all by favoring none. American classrooms have Jews, Hindus, Bahai, Muslims, Buddhists, and others. Chad would demand a special place for his views, but in America, all beliefs should be treated equally by government.

The one thing that bothers me most about this case is that neither Chad nor his parents nor the so-called Advocates for Faith and Freedom, ever made an effort to talk with me before filing the suit. I sent a letter home over the summer in which I explained that I would go out of my way to be "provocative" (a word Chad, in his deposition, defined as "things that can't be said in public"). In that letter, I asked any parents who had questions to call me at home home or email me. Of course, they did neither In my view, they were all more interested in gaining publicity for themselves, and donations for the Advocates, than in protecting Chad’s rights. They cost our schools hundreds of thousands of dollars when the whole thing could have been settled with a phone call that they never made.
Jim, if I may call you that, please don't get me wrong. I am not asserting the merits of Farnan's case. Quite the contrary, I think it was pretty obviously a put-up job for ideological purposes.

But I'm not sure it can be called "respect" to call all religions by a term that all consider an insult simply because their adherents sometimes insult each other ... especially when we are talking high school students or younger. On the other hand, as an advanced placement course where you warned parents and students alike, brings you closer to university courses, where none of this is a problem.

The real lesson of the case is that el-hi teachers have to take their students' religious beliefs into consideration when discussing them.
Well, I often use the terms "Christian mythology," which also offends them. And, I refer to Jesus without using "Christ," which has also generated complaints.
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