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.

RR
[image Portrait of Joseph II, Holy Roman Emperor by Anton von Maron via]

Update: See Dr. Corbett's comments below