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Ninth Circuit Uses Outcome-Based Jurisprudence to Deny Justice to Darwin-Doubting Student

Casey Luskin

Back in August, the Ninth Circuit Court of Appeals denied justice to a Darwin-doubting student by refusing to rule on the merits of a lawsuit. A lower court had previously found a public high school teacher violated a student’s First Amendment rights by disparaging creationist religious views in the classroom. In the lawsuit, C.F. v. Capistrano Unified School District, the student/parent plaintiffs, “Farnan,” filed suit after the history teacher in question, James Corbett, made various statements during in-class instruction that Farnan felt disparaged their religious beliefs. In 2009, the lower federal court found that Corbett had violated the U.S. Constitution by “disparaging” those beliefs. What did the teacher say, exactly? He called creationism “superstitious nonsense.” Both sides then appealed.

There’s an extensive body of case law from both the U.S. Supreme Court and the Ninth Circuit holding that it is illegal for the state to “inhibit,” “disapprove of,” “oppose,” “evince a hostility to,” show an “an attitude antagonistic to theistic belief” or attempt to “discredit” religion. We also know that federal courts have firmly ruled it is illegal to promote creationism in public schools. But this case shows that as soon as a teacher actually starts up disparaging and inhibiting creationist religious views in public schools, federal courts turn a blind eye and let it go unchecked.

It’s been said that selective enforcement of the law is a hallmark of tyranny. Is that what’s going on here?

Ninth Circuit Ducks the Issue
On August 19 the court ruled that in bashing creationism, the teacher had “qualified immunity.” This got the court off a hook, obviating the need to rule that an evolutionist public high school teacher had violated the 1st Amendment’s Establishment Clause by attacking religion. Various repugnant statements in the ruling show a court refusing to do its job because it doesn’t like the outcome of an analysis on the merits of a lawsuit. The Ninth Circuit Court of Appeals wrote:

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. … “[T]he Establishment Clause presents especially difficult questions of interpretation and application,” and we cannot expect Corbett to have divined the law without the guidance of any prior case on point.

What you just read is deliberate evasion on the part of a court that didn’t want to rule on the merits of a case because it disagreed with the likely outcome. The reason the court refuses to rule is purportedly because “the law was not clearly established” and these are “difficult questions.” But isn’t it a court’s job to establish what the law is, whether the question is difficult or not? Yes. In the foundational U.S. Supreme Court case Marbury v. Madison, Justice Marshall instructed future generations of jurists that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”1

By refusing to say “what the law is,” the Ninth Circuit abdicated its responsibility to assess and protect the rights of both students and teachers in public schools. The Appeals Court let the teacher off the hook because he supposedly lacked “guidance” from the case law, but imagine if all courts behaved like this one–it would lead to absurd results: By refusing to rule on the merits of this case, the Ninth Circuit has perpetuated an environment where teachers lacks such “guidance.” To put it another way, if every time a new issue arises a court rules that “we cannot expect [the accused] to have divined the law without the guidance of any prior case on point,” then no new case law could ever be created. Justice Marshall was right when he exhorted the judicial system that the court’s job is to give “guidance”; if the court finds that the teacher ran afoul of the law, so be it.

In short, the Ninth Circuit copped out because it didn’t want to issue a politically incorrect ruling against an evolutionist public school teacher who had clearly violated the Establishment Clause. It’s a convenient arrangement: courts refuse to rule on these cases to provide “guidance” for teachers, but when teachers get sued for violating the Establishment Clause, courts let them off the hook due to a supposed lack of “guidance.”

We’ve covered the C.F. v. Capistrano Unified School District case in the past here on ENV , but it’s worth briefly reviewing what happened. In the lower court ruling, Judge James E. Selna recognized that there comes a point where it is illegal under the U.S. Constitution for a public school teacher to “affirmatively show hostility to religion” or make “statements in class that were improperly hostile to or disapproving of religion in general, or of Christianity in particular.” The court’s analysis thus asked “whether, when looking at the context as a whole, a reasonable observer would perceive the primary effect of Corbett’s statements as disapproving of religion in general or of Christianity in particular.”

When Corbett stated “an unequivocal belief that creationism is ‘superstitious nonsense,'” the lower court held that this “primarily sends a message of disapproval of religion or creationism” and “therefore constitutes improper disapproval of religion in violation of the Establishment Clause.” The lower court found that Corbett could have criticized another teacher who had taught creationism “without disparaging those views,” and thus what he did was unconstitutional.2

Given the religious nature of creationism, by the way, I agree that such religious creationist views about life’s origins should not be advocated in public school science classrooms. In fact, in my job at Discovery Institute advising educators, I regularly tell teachers that it is illegal to do so. For some reason the National Center for Science Education has yet to send me a thank you note. But, as I argue in this law review article, if it is illegal to promote creationism in public schools, then it should be equally illegal to bash it in such a venue.

Unfortunately, on appeal to the Ninth Circuit, the appellate judges apparently feared the outcome of Judge Selna’s analysis, and decided it was best to turn a blind eye and let the violation of the Establishment Clause go unchecked.

References Cited:
[1.] Marbury v. Madison, 5 U.S. 137, 177 (1803).
[2.] C.F. v. Capistrano Unified School District, 615 F. Supp. 2d 1137 (C.D. Cal. 2009).


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



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