August 22, 2011
Serfs, Jesus, and the Establishment Clause in Advanced Placement History Class
The scene is an advanced history class in an Orange County school, in one of the tonier school districts in the United States, in which Dr. James Corbett has been teaching the AP European History course for the past 16 years with pedagogical goals including critical thinking and provocative engagement with current events.
In its opinion in CF v. Capistrano Unified School District, a panel of the Ninth Circuit considered the claim by Chad Farnan, a student in the class who eventually withdrew, that Dr. Corbett violated the Establishment Clause by evincing his hostility to religions in general and Christianity in particular. One of Dr. Corbett's objectionable statements - - - recorded by the student without the teacher's knowledge - - - was a discussion of Joseph II (pictured right).
Joseph II, according to the recording, was trying to end serfdom, but was opposed by the serfs, against their own economic interests, because Joseph II was also trying to reform religion. Dr. Corbett then analogized this to the situation in "red states" in which people vote against their economic interests and in favor of the Republican party because when they put on their "Jesus glasses" they can't "see the truth."
Dr. Corbett argued that many of the statements were taken out of context and inaccurate, as well as being the product of a surreptitious recording that violated state law, but the panel declined to discuss that issue. The panel also declined to reach the ultimate question as to whether a school teacher could violate the Establishment clause by being hostile to religions in general or Christianity in particular. Instead, the panel found that the defendants were entitled to qualified immunity because any right involved in Farnan's theory of the case was not "clearly established at the time of the alleged misconduct" as would be required. As the court stated:
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.
In its summation, the panel opined that teachers must 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.
However, the court did note that at some point a "teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility." In this context, the panel's earlier description of Dr. Corbett as "a Christian who regularly prays and attends church services," is a bit troublesome. Is it relevant that Dr. Corbett is a Christian, or more precisely, not an atheist?
But to be clear, the panel reserved judgment on whether that point had been reached, holding that there was no clearly established law regarding the possibility of such a point.
[image Portrait of Joseph II, Holy Roman Emperor by Anton von Maron via]
Update: See Dr. Corbett's comments below
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The Courts need to deal with he misplaced false equivalency created by The Lemon Test. While attempts by government actors to impose their religious views on others are unambiguously unconstitutional, "Hostility" to fundamentalists, is simply the application of reason to their cherished myths. If a "cause of action" can be created simply by applying reason to religious myth, the flood gates of litigation will open and a wave of lawsuits brought by fundamentalists of all faiths with drown the courts.
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, the plaintiff in my case, 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, his attorneys, ever made an effort to talk with me before filing the suit. 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. Their behavior, in this regard, reflects an anti-reason bias that echoes Martin Luther's famous statement that, "Reason is the greatest enemy God has." In the final analysis, calling religion what it is, superstition, cannot form the basis for an action, or we have lost he battle to the fundamentalist myrmidons. With all the recognized religions in America, virtually nothing could be said that wouldn't create a "cause of action."
Posted by: james corbett | Aug 28, 2011 10:02:08 PM
Finally,many people have asked me why I never took the proffered offers to settle. Here are two stanzas from Robert Service Poem (Reagan's favorite poet) that have been with me for 50 years--since my father read it to me when I was a teenager. At the time he was fighting the blacklisters who labeled him a Communist for opposing a reactionary takeover of the Anaheim School Board. He lost, but he taught me to fight:
And so in the strife of the battle of life
It’s easy to fight when you’re winning;
It’s easy to slave, and starve and be brave,
When the dawn of success is beginning.
But the man who can meet despair and defeat
With a cheer, there’s the man of God’s choosing;
The man who can fight to Heaven’s own height
Is the man who can fight when he’s losing.
Carry on! Carry on!
Fight the good fight and true;
Believe in your mission, greet life with a cheer;
There’s big work to do, and that’s why you are here.
Carry on! Carry on!
Let the world be the better for you;
And at last when you die, let this be your cry!
Posted by: james corbett | Aug 28, 2011 10:06:16 PM