In August, the Ninth Circuit Court of Appeals denied justice to a creationist student in the case C.F. v. Capistrano Unified School District. The court claimed it was justified in refusing to rule because “the law was not clearly established.” In a previous article, we saw that the court thus failed in its job to establish what the law is. In fact the relevant law on this issue is not nearly as murky as the Ninth Circuit made it out to be.

While many questions about academic freedom for public high school teachers are still up in the air, those questions generally pertain to instances where the administration wants the teacher to do X, but the teacher wants to do Y. As far as the question of whether a public school teacher can violate the Establishment Clause, this is settled law: public school teachers cannot establish religion in the classroom. This does not just mean a ban on advocating religion. There is plenty 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.

The Lemon test requires that the “principal or primary effect” of a law “be one that neither advances nor inhibits religion.”¹ The test prohibits government inhibition of religion with the same measure of force with which it bans the advancement of religion, for “[t]he government neutrality required under the Establishment Clause is . . . violated as much by government disapproval of religion as it is by government approval of religion.”² While “it is far more typical for an Establishment Clause case to challenge instances in which the government has done something that favors religion or a particular religious group,” that same Ninth Circuit ruling observed that the “[Lemon] test also accommodates the analysis of a claim brought under a hostility to religion theory.”³

The doctrine prohibiting government inhibition of religion can be traced through some significant U.S. Supreme Court cases. In the landmark case School District of Abington Township v. Schempp, the Supreme Court recognized that “the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.'”⁴ In Epperson v. Arkansas the Court likewise held that “The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion” and “the State may not adopt programs or practices in its public schools or colleges which ‘aid or oppose’ any religion. This prohibition is absolute.”⁵ Consistent with this principle, in Board of Education of the Westside Community Schools v. Mergens, the Court ruled state action is impermissible when it “would demonstrate not neutrality but hostility toward religion.”⁶ Likewise, the endorsement test prohibits “disapproval” of religion.⁷

As noted, in Schempp the U.S. Supreme Court equated “opposing or showing hostility to religion” with establishing a “religion of secularism” and “preferring those who believe in no religion over those who do believe.” In this instance, the Supreme Court held that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”⁸ The Court gave further guidance regarding the treatment of “denominational preference,” stating that “when we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.”⁹

There is case law that extends the principle prohibiting the preference of one religion over another in the public school context. In Hansen v. Ann Arbor Public Schools, a federal district court in Michigan held that a school district’s program was unconstitutional because “[a]ny contrary or differing religious view was deemed ‘negative,’ and summarily excluded” and thus , “the principal effect of the panel was to suggest preference for a particular religious view.”¹⁰ Similarly, in Citizens for a Responsible Curriculum (CRC) v. Montgomery County Public Schools, a federal court in Maryland issued a preliminary injunction barring implementation of a curriculum on the grounds that it “paints certain Christian sects … as unenlightened and Biblically misguided.”¹¹

In C.F. v. Capistrano Unified School District, the Ninth Circuit Court of Appeals stated that “we cannot expect Corbett to have divined the law without the guidance of any prior case on point. Yet in cases dealing with the teaching of evolution or creationism, the U.S. Supreme Court has given guidance explaining how importance it is to protect constitutional freedoms in public schools. In Epperson v. Arkansas (a case dealing with the teaching of evolution), the Court stated that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”¹² Likewise, in Edwards v. Aguillard (a case dealing with the teaching of creationism), the Court explained:

The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. 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. Students in such institutions are impressionable and their attendance is involuntary. The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure. Furthermore, “the public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools ….¹³

But in C.F. v. Capistrano Unified School District, the Ninth Circuit chose not to be vigilant in preventing violations of the Establishment Clause. Apparently the need to vigilantly monitor compliance with the Establishment Clause only applies when it is a “creationist” who is violating the law, rather than an evolutionist. We see a double standard at work, with the Ninth Circuit eagerly enforcing constitutional rights when they cut against “creationists,” but refusing to do so against evolutionists.

The Supreme Court has held that the “clearest command” of the Establishment Clause is that one religious denomination cannot be officially preferred over another, and when the state opposes or shows hostility towards religion, it is preferring a “religion of secularism” over other religious beliefs. Moreover, the Court has held that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools” and courts must be “particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” Yet in this case the Ninth Circuit had the gall to expect us to believe their claim that the case law is insufficiently clear to warrant even attempting to address the issues.

The practical implication of the holding in the C.F. v. Capistrano School District is that public school teachers may denigrate, disparage, attack, and oppose the religious beliefs of students however they please, because those teachers have “qualified immunity” and won’t be held accountable by the courts. Perhaps it was putting religion in such an unfavorable position that the Ninth Circuit Court intended all along. When it comes to being “vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,” apparently the Ninth Circuit only engages in such monitoring to stop actions that might benefit religion, and turns a blind eye when the actions would harm religion.

References Cited:
[1.] Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added). See also Smith v. Bd. of Sch. Comm’rs of Mobile County, 827 F.2d 684, 690, 692 (11th Cir. 1987) (equating “inhibiting religion” with exhibiting “an attitude antagonistic to theistic belief” or attempting to “discredit it”).
[2.] Vernon v. City of Los Angeles, 27 F.3d 1385, 1396 (9th Cir. 1994).
[3.] Vasquez v. Los Angeles (“LA”) County, 487 F.3d 1246, 1256 (9th Cir. 2007) (citing Am. Family Ass’n., Inc. v. City & County of San Francisco, 277 F.3d 1114, 1122 (9th Cir. 2002), cert. denied, 537 U.S. 886 (2002)).
[4.] School District of Abington Township v. Schempp, 374 U.S. 203, 225 (1963) (citations and internal quotation marks omitted).
[5.] Epperson v. Arkansas, 393 U.S. 97, 104, 106 (1968) (emphasis added) (citations and internal quotation marks omitted).
[6.] Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 248 (1990). See also Van Orden v. Perry, 545 U.S. 677, 683-84 (2005) (stating that the First Amendment “requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage”); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 845-46 (1995) (warning against state actions that “would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires”).
[7.] Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). See also Mergens, 496 U.S. at 249 (“the Act’s purpose was not to ‘endorse or disapprove of religion'”) (quoting Wallace v. Jaffree, 472 U.S. 38, 56 (1985)).
[8.] Larson v. Valente, 456 U.S. 228, 244 (1982) (emphasis added).
[9.] Id. at 246.
[10.] Hansen v. Ann Arbor Public Schools, 293 F. Supp. 2d 780, 805 (E.D. Mich. 2003).
[11.] Citizens for a Responsible Curriculum v. Montgomery County Public Schools, No. Civ.A. AW-05-1194, 2005 WL 1075634, * 10 (D. Md. May 5, 2005).
[12.] Epperson v. Arkansas, 393 U.S. at 104 (quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960)).
[13.] Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (citations omitted).