CTA's 2nd Brief & Response to Plaintiff's 1st Brief - National Center ...

Case: 09-56689 07/26/2010 Page: 1 of 80 ID: 7418245 DktEntry: 45-1 

APPEAL Docket Nos. 09-56689 & 09-56690 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

C.F., a minor by and through his parents BILL FARNAN and TERESA FARNAN; 

Plaintiffs -Appellants - Cross Appellees 

VS. 

CAPISTRANO UNIFIED SCHOOL DISTRICT; DR. JAMES CORBETT, 

individually and in his official capacity as an employee of Capistrano Unified 

School District; and DOES 1 through 20 inclusive, 

Defendants -Appellees - Cross-Appellants 

CALIFORNIA TEACHERS ASSOCIATIONINEA; AND CAPISTRANO 

UNIFIED EDUCATION ASSOCIATION, 

Intervenors - Appellees 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE CENTRAL DISTRICT OF CALIFORNIA 

CASE NO. SACV-07-1434 JVS (ANx) 

INTERVENORS - APPELLEES' SECOND BRIEF ON CROSS APPEAL 

AND RESPONSE TO APPELLANT'S FIRST BRIEF ON CROSS APPEAL 

CALIFORNIA TEACHERS ASSN. 

Legal Services Department 

Michael D. Hersh (CA Bar No. 144095) 

1 1745 E. Telegraph Road 

Santa Fe Springs, CA 90670 

Telephone: (562) 478- 1410 

CALIFORNIA TEACHERS ASSN. 

Legal Services Department 

Laura P. Juran (CA Bar No. 199978) 

Emmy Leheny (CA Bar No. 196 167) 

1705 Murchison Drive 

Burlingame, CA 940 10 

mhersh@cta.org Telephone: (650) 552-5425 

ljuran@cta.org 

Attorneys for Intervenors - Appellees 

California Teachers Association & Capistrano Unified Ed. Association


TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................... iv 

CORPORATE DISCLOSURE STATEMENT ............................ 1 

INTRODUCTION .................................................. 2 

ISSUES PRESENTED .............................................. 4 

STANDARDOFREVIEW ........................................... 6 

JURISDICTIONAL STATEMENT .................................... 7 

STATEMENT OF THE CASE ........................................ 7 

STATEMENT OF FACTS ........................................... 8 

SUMMARY OF ARGUMENT ....................................... 19 

ARGUMENT ..................................................... 21 

I . Dr . Corbett's Statements Did Not Violate the Establishment 

Clause ................................................ 21 

A . Legal Framework ................................... 21 

1 . Secular Purpose .............................. 23 

2 . Principal or Primary Effect ..................... 24 

3 . Entanglement ................................ 25


4. Not All Public Employee Speech Carries the Imprimatur 

of The Employer Nor of State Action ............. 26 

B. Farnan's Offense at Statements with No Religious Content 

Raise No Establishment Clause Issues ................. 26 

C. Dr. Corbett's Statements About Religion Were 

Part of an Appropriate Secular Education Program 

and Were Lawhl .................................. 28 

1. Except for Its Ruling on the Peloza Comment, the 

District Court Correctly Found that Statements About 

Religion Satisfied the Lemon Analysis ............ 28 

a. Secular Purpose ......................... 28 

b. The Primary Effect of Dr. Corbett's Statements 

Was Primarily Secular .................... 32 

c. Dr. Corbett's Statements Raise No Excessive 

Entanglement Concerns ................... 33 

2. The District Court Erred in Finding that Peloza 

Statement Violated the Establishment Clause ....... 33 

a. There Was a Secular Purpose for the Comment 

Because It Was Directed Not at Religious Belief 

But at the Unconstitutional Practices of a Biology 

Teacher ................................ 35 

b. The Primary Effect Does Not Show Government 

Hostility to Religion ..................... 36 

c. Dr. Corbett's Comment Does Not Raise Excessive 

Entanglement Concerns ................... 37


I1 . Even Assuming Dr . Corbett Violated the Establishment Clause. He Is 

Entitled to Qualified Imunity .................................. 38 

A . The District Court Properly Exercised Its Discretion in Allowing Dr . 

Corbett and the School District to Amend Their Answer and Obtain a 

Ruling on Qualified Immunity ............................. 38 

. 

1 Defendants Did Not Waive Qualified Immunity Defense 39 

2 . The District Court Acted Well Within Its Discretion in 

Granting Leave to Amend under Rule 15(a) ............. 46 

... 

a . No bad faith Existed ........................... 48 

b . Defendants Did Not Unduly Delay in Moving to 

Amend ..................................... 51 

c . Motion to Amend Was Not Futile ................ 52 

. 

................ 

d No Undue Prejudice Was Caused 53 

B . The Particular Constitutional Right Alleged by Plaintiff Was Not 

Clearly Established and Thus Dr . Corbett Is Entitled to Qualified 

Immunity .............................................. 57 

I11 . The Denial of Declaratory Relief Should Be Affirmed ............... 65 

A . PlaintifPs Claim for Declaratory Relief is Moot ............... 65 

B . Even If Not Moot. The District Court Correctly Denied Declaratory 

Relief ................................................. 67 

CONCLUSION ................................................... 68 

CERTIFICATE OF COMPLIANCE ................................... 69


TABLE OF AUTHORITIES 

CASES 

American Family Association v. City and County of San Francisco, 

277 F.3d 11 14, 1121. (9th Cir. 2002) [cert. den. 537 U.S. 886, 123 S.Ct. 

129,154 L.Ed.2d 146 (2002)l ...................... .24,29,32,60,62 

Anderson v. Creighton, 483 U.S. 635,640 (1987) ..................... 57,58 

Anthoine v. North Central Counties Consortium, 

605 F.3d 740,749 (9" Cir. 2010) ............................. 26,35 

Bauchman v. West High Schl., 132 F.d 542 (loth Cir. 1997) ............. 61,66 

Bias v. Moynihan, 508 F.3d 1212,1220 (9" Cir. 2007) ................. 58,63 

Bilbrey by Bilbrey v. Brown, 73 8 F.2d 1462 (9fi Cir. 1984) ................. 67 

Blanford v. Sacramento County, 406 F.3d 1 1 10,1114- 15 (9"' Cir. 2005) ....... 6 

Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 

496 U.S. 226,248, 1 10 S.Ct. 2356,2370-71, 

110 L.Ed.2d 191 (1990) ............................. .24,27,28,30 

Brosseau v. Haugen, 

543 U.S. 194,195 and n.2 (2004) (per curiam) ............... 41,58,63 

Brown v. Woodland Joint Unzj?ed School District, 

27 F.3d 1373,1379 (9th Cir. 1994) ......................... 24,32,61 

Camarilla v. McCarthy, 998 F.2d 638,639 (9th Cir. 1993) ........... 40,42,44 

Cammack v. Waihee, 

932 F.2d 765 (9"' Cir. 1991), cert. denied, 505 U.S. 1219, 112 S.Ct 3027, 

120 L.Ed.2d 898 (1992) ....................................... 23


Campbell v . Emory Clinic. 166 F.3d 1 157 (1 lth Cir . 1999) ................. 55 

Castaldo v . Stone. 192 F . Supp.2d 1 124 (D . Colo . 200 1) .................. 50 

Cole v . Oroville Union High Schl . Dist., 

228 F.3d 1092.109 7-98 (9" Cir . 2000) ....................... 6.65. 66 

Craig v . Boren. 429 U.S. 190. 192 (1976) .............................. 65 

DiRuzza v . County of Teharna. 206 F.3d 1304. 13 14 (9th Cir . 2000) ....... 41. 58 

Edwards v . Aguillard. 482 U.S. 578.583. 107 S.Ct. 2573.2577. 

96 L.Ed.2d 510 (1987) .............................. .22.35.36. 62 

Eminence Capital. LLC v . Aspeon. Inc., 

3 16 F.3d 1048. 1052 (9'h Cir . 2003) (per curiam) .................... 46 

Epperson v . Arkansas. 

393 U.S. 97. 104. 89 S.Ct. 266. 21 L.Ed.2d 228 (1968) ......... 21.27. 61 

Eng v . Cooley. 552 F.3d 1062. 1071 (9th Cir.2009) ....................... 26 

Evans v . Fogarty. 2007 WL2380990 (10"' Cir . 2007) (unpublished) .......... 44 

Fleischfresser v . Directors of School Dist., 

200 15 F.3d 680. 688 (7th Cir . 1994) ....................... 23.32. 61 

Freitag v . Ayers. 468 F.3d 528. 545 (9'h Cir . 2006) ....................... 26 

Fogel v . Collins. 531 F.3d 824. 827 (9" Cir . 2008) ........... 41. 58.59.60. 63 

Fornan v . Davis. 371 U.S. 178. 182 (1962) ........................... 51. 53 

Garcetti v . Ceballos. 547 U.S. 41 0. 421 (2006) .......................... 26 

Gornez v . Toledo. 446 U.S. 635. 640 (1980) .......................... 43. 47


Government Employees Ins . Co . v . Dizol, 

............................ 

133 F.3d 1220. 1223 (9thCir.1998) 7. 67 

Graves v . City of Coewr D 'Alene. 339 F.3d 828 (gth Cir . 2003) ........ 41.42. 44 

Grove v . Mead 753 F.2d 1528. 1534 (9th Cir . 1985) ....... .21.32.38.60.61. 62 

Harlow v . Fitzgerald. 457 U.S. 800 (1982) ............................. 47 

Harrison Beverage Co . v . Dribeck Importers. Inc., 

133 F.R.D. 463.468.46 9-70 (D . N.J. 1990) ....................... 56 

Hazelwood School Dist . v . Kuhlmeier. 

484U.S. 260.267. 108 S.Ct. 562. 568 (1988) 34 

...................... 

Hiibel v . Sixth Judicial Dist . Ct . of Nev., 542 U.S. 177 (2004) ............. 41 

James v . Rowlands. 606 F.3d 646. 650 (9th Cir . 2010) ............... 41.58. 59 

Jackson v . Bank of Hawaii. 902 F.2d 1385.138 7.88 (9th Cir . 1990) .......... 55 

Kennedy v . City of Ridgefield. 439 F.3d 1055. 106 1 (9" Cir . 2006) .......... 58 

Kreisner v . City of San Diego. 1 F.3d 775. 781 (9" Cir . 1993) ......... 22.24. 60 

Kwai Fun Wong v . United States. 373 F.3d 952. 957 (9" Cir . 2004) .... 40.41. 44 

Lemon v . Kurtz~nan. 

403 U.S. 602.612. 91 S.Ct. 2105. -9 29 L.Ed.2d 745. 

(1971) .............................................. passim 

Lynch v . Donnelly. 465 U.S. 668.694. 104 S.Ct. 1355. 

79 L.Ed.2d 604 (1984) .................................. 22.23. 60 

Malleyv . Briggs. 475 U.S. 335. 341 (1986) ............................. 58


McCreary County v . ACLU. 

545 U.S. 844.860. 125 S.Ct. 2722. 162 L.Ed.2d 729 (2005) 21. 60 

....... 

Mitchell v . Forsyth. 472 U.S. 5 1 1. 526 (1 985) ........................... 43 

Moore v . Kayport Package Express. Inc., 

885 F.2d 531. 537 (9"'Cir . 1989) ............................. 46. 53 

Mueller v . Allen. 

463 U.S. 388.394.95. 103 S.Ct. 3062. 77 L.Ed.2d 721 (1983) ......... 24 

Nurre v . Whitehead. 580 F.3d 1087. 1092 (9" Cir . 2009) .... 6.33. 37.38.60. 66 

Owens v . Kaiser Found 'n . Health Plan. Inc., 

244 F.3d 708. 712 (9th Cir . 2001) ................. .6.42.46.50.52. 54 

Pearson v . Callahan. 129 S.Ct. 808.81 8.1 9 (2009) ............. 40.41.44. 57 

Peloza v . Capistrano Unified School District. 

37 F.3d 517 (9th Cir 1994) ............................... 7.14. 35 

. 

Perry Education Assn . v . Perry Local Educators ' Assn., 

460 U.S. 37.47. 103 S.Ct. 948.956. 74 L.Ed.2d 794 (1983) .......... 34 

Posey v . Lake Pen Oreille Sch . Dist . No . 84, 546 F.3d 1121 (9" Cir . 2008) .... 26 

Ringuette v . City of Fall River. 146 F.3d 1 (1 st Cir . 1998) .................. 43 

Safford Unified Sclzl . Dist . No . 1 v . Redding, 

129 S.Ct. 2633.264 3-44 (2009) ................................. 63 

Sample v . Johnson. 771 F.2d 1335. 1338 (9th Cir . 1985) .............. 6.66. 68 

Saucier v . Katz. 533 U.S. 194. 201 (2001) ........................... 57. 58 

School District of Abington Townshiy. Pennsylvania . v . Schempp. 

374U.S. 203.308. 83 S.Ct 1560. 1616 (1963) .................. 21. 33


Smith v . Board of Schl . Commissioners of Mobile County. 

827 ~.2d 684. 692 (11" Cir . 1987) ............................... 61 

Solomon v . North Am . Life and Casualty Ins . Co., 

151 F.3d 1132,1138-39(9"Cir . 1998) ........................ 48, 55 

Thornton v . McClatchy Newspapers. Inc.. 261 F.3d 789. 799 (9th Cir 2001) 47 

Tinker v . Des Moiizes Independent School District. 

393 U.S. 503.506. 89 S.Ct. 733.736. 21 L.Ed.2d731 (1969) ......... 34 

Van Orden v . Perry. 545 U.S. 677 (2005) .............................. 60 

Vasquez v . Los Angeles County 487 F.3d 1246. 1249 (9th Cir.2007) ......... 22 

Vernon v . City of Los Angeles. 27 F.3d 1398. 1397 .................... 22. 36 

Wagner v . Professioirzal Engineers in Cal . Gov 't., 

354 F.3d 1036 (9"' Cir . 2004) .................................... 7 

Waldrip v . Hall. 548 F.3d 729. 732 (gth Cir . 2008) ................. 6.46. 5 1 

Walker v . Gomez. 370 F.3d 969.974. n.6 (9th Cir . 2003) ................... 42 

Wal . v. Tax Comnzissioiz. 

397 U.S. 664.668. 90 S.Ct. 1409. 141 1. 25 L.Ed.2d 697 (1970) 21 

. 

. 

... 

....... 

........ 

Widmar v Vincent 454 U.S. 263.268. 102 S.Ct. 269. 274 (1981) 34. 37 

Wilton v . Seven Falls Co.. 5 15 U.S. 277. 289 (1995) .................. 6.7. 67 

STATUTES 

............................................. 

................................................... 

28U.S.C.j1331&1343 7 

28U.S.C.jl291 7 

42 U.S.C. 3 1983 ...................................... .7.41.49.50. 52


OTHER AUTHORITIES 

1"' Amendment ..................... 21.22.26.27.33.34.59.62.63.64. 65 

4th Amendment .................................................... 63 

Cal . Education Code j 51512 ........................................ 13 

RULES 

....................................... 

.................................... 

............................................. 

Fed.R.Civ.P.,Rule 15 46.48. 53 

Fed.R.Civ.P..Rule 15(a) 

Fed . R . Civ . P.. Rule 16 

47. 5256 

52


CORPOUTE DISCLOSURE STATEMENT 

The California Teachers Association and Capistrano Unified Education 

Associati011 are non-profit mutual benefit corporations organized under the California 

Nonprofit Mutual Benefit Corporation Law. Neither has a parent corporation and 

there are no publicly-held corporations that own any stock in the California Teachers 

Association or Capistrano Unified Education Association. 

Dated: July 26,20 10 S/ Michael D. Hersh 

Attorneys for Intervenors --- Appellees, 

California Teachers Association and 

Capistrano Unified Education Association


INTRODUCTION 

Chad Farnan, the young man who brought this lawsuit against his AP European 

History teacher and School District, has now graduated high school. However, his 

lawsuit would have the federal judiciary return to high school and begin policing 

teachers' stray remarks. Farnan seeks judicial review, not of a particular policy or 

curriculum determination by a governing board, but of disparate comments made by 

a teacher for signs of suspected "hostility" toward religious beliefs and Farnan's 

political positions. This suit appears to be part of a campaign by religious groups 

who want "balance" in the public school classroom between scientific and historical 

fact and their world views derived from faith and religious texts. Such groups have 

failed in the courts to prohibit the teaching of evolutionary science, and have failed 

to impose "creation science" into public school curricula. Plaintiff here seeks to 

undermine the teaching of historical facts, sociological data and scientific reasoning 

in a pedagogical manner he considers offensive. 

It is because of provocative, passionate, and committed educators like 

Defendant Dr. Corbett that the transformative and liberating promise of public 

education remains alive. Without their provocations and daily engagement with 

students on various issues, education ceases to prepare a new generation of citizens 

for the difficult road ahead. A skilled and dedicated teacher such as Dr. Corbett

encourages students to test their ideas and unexamined assumptions to help students 

build a solid foundation for their beliefs, not to shake their faith. 

California Teachers Association and Capistrano Unified Education Association 

("Union Intervenors") intervened to oppose Plaintiffs claim partially out of concern 

that the case was an unwarranted attack on academic freedom, which could create a 

significant chilling effect on teachers charged with preparing students to become 

productive citizens in a diverse society. Union Intervenors are confident the Court 

will find that Dr. Corbett's statements are ones imbued with a secular purpose of 

mastering the material needed to pass the Advanced Placement test in European 

History; would be understood by a reasonable and informed person to have primarily 

a secular effect; and would not create excessive entanglement with religion. 

Further, the District Court correctly ruled that Defendants could amend their 

answer to plead qualified immunity for Dr. Corbett; correctly ruled that Dr. Corbett 

had qualified immunity for making the one comment that the District Court found to 

violate the Establishment Clause; and correctly ruled that declaratory relief was not 

warranted. 


The District Court erred, however, by finding that Dr. Corbett violated the 

Establishment Clause when Dr. Corbett, in response to a student question about 

another teacher's lawsuit, recounted to students that he had told an attorney, "I will


not leave [Peloza] alone to propagandize kids with this religious, superstitious 

nonsense." The District Court saw this comment as hostile to religion in purpose and 

effect, construing the "nonsense" to be Peloza's belief in creationism, but the context 

shows that the "nonsense" was not Peloza's belief, but Peloza's improper actions. In 

addition, this personal story was part of an informal class discussion where Dr. 

Corbett's comments would have been understood as his own, and not his employer's. 

No Establishment Clause violation occurred. 

(I) 

ISSUES PRESENTED 

Whether Dr. Corbett violated the Establishment Clause by making 

certain statements in a high school AP European History class that addressed 

religion's role in particular historical events, as part of a secular education program 

designed to teach critical thinking skills, independent thought, deductive reasoning, 

and the ability to analyze and understand historical events; and whether Dr. Corbett 

violated the Establishment Clause by reporting to students during a casual classroom 

discussion a comment he had made years earlier about another teacher who had been 

promoting young-earth creationism in a Biology classroom. 

(2) Whether Dr. Corbett violated the Establishment Clause by making 

statements, and engendering discussion, about social and political issues, when those 

statements contained no reference to religion.

(3) Whether the District Court abused its discretion in pemitting Dr. Corbett 

and the School District to amend their answer to include a qualified immunity defense 

- a defense for which Plaintiffs were already on notice because Union Intervenors had 

already asserted the defense in their answer. 

(4) Whether Dr. Corbett is entitled to qualified immunity when no prior 

court case had addressed whether one comment (or even a number of comments) 

about creation science, made during a year-long course by a teacher recounting a 

prior event in response to a student question, could violate the Establishment Clause, 

and when case law recognizes that teachers are permitted to present information that 

might be deemed distasteful to some religious adherents as part of an overall secular 

education program. 

(5) 

Whether Farnan's request for declaratory relief is moot, particularly now 

that he has graduated from high school. 

(6) Whether the District Court abused its discretion in denying Plaintiffs 

request for declaratory relief, even assuming that a request for declaratory relief is not 

moot. 

Ill 

//I 

Ill 

Case: 09-56689 07/26/2010 Page: 15 of 80 ID: 7418245 DktEntry: 45-1


STANDARD OF REVIEW 

The District Court's summary judgment rulings are reviewed by this Court de 

novo. See Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). The District 

Court's decision to grant leave to the District and Dr. Corbett to amend their answer 

is reviewed under the abuse of discretion standard. See Waldrip v. Hall, 548 F.3d 

729,732 (9th Cir. 2008); Owens v. Kaiser Found'n. Health Plan, Inc., 244 F.3d 708, 

712 (9th Cir. 2001). The qualified immunity finding is reviewed de novo. See 

Blanford v. Sacramento County, 406 F.3d 1 110, 11 14-15 (9" Cir. 2005). 

Whether Farnan's claim for declaratory relief is moot is a question of law that 

is reviewed de novo. Cole v. Oroville Union High Schl. Dist., 228 F.3d 1092,1097-98 

(9t11 Cir. 2000) (citation omitted); see also Sample v. Johnson, 77 1 F.2d 1335, 1338 

(9"' Cir. 1985). If this Court concludes that the claim for declaratory relief is not 

moot, then it would proceed to review the District Court's denial of declaratory relief 

on the merits. Plaintiff incorrectly asserts that this Court must review the denial of 

declaratory relief de novo. (Plaintiffs Opening Br., pp.4, 62.) A district court's 

decision to deny declaratory relief should instead be reviewed under the abuse of 

discretion standard. Wilton v. Seven Falls Co., 5 15 U.S. 277,289 (1995) (rejecting 

argument that declaratory relief decisions should be reviewed de novo and stating that 

facts bearing on usefulness of declaratory judgment remedy "are peculiarly within"


district court's grasp); Government Employees Ins. Co. v. Dizol, 133 F.3d 1220,1223 

(9th Cir. 1998)' 

JURISDICTIONAL STATEMENT 

Farnan, through his parents, sued the District and Dr. Corbett under 42 U.S.C. 

tj 1983, alleging that Defendants had violated the Establishment Clause. The District 

Court had jurisdiction pursuant to 28 U.S.C. $5 133 1 and 1343. On September 24, 

2009, the District Court entered a final judgment, which disposed of all claims in the 

case. (ER 1 .) Farnan filed a Notice ofAppeal on October 26,2009. Dr. Corbett filed 

a Notice of Appeal on October 26, 2009. This Court has jurisdiction to hear the 

cross-appeals under 28 U.S.C. 5 129 1. 

STATEMENT OF THE CASE 

Union Intervenors accept Farnan's Statement of the Case with the following 

additions/modifications: 1) Farnan's First Amended Complaint ("FAC") sought to 

enjoin "Defendants, their agents, servants, employees, officials, or any other person 

' In support of his contention that declaratory relief decisions are reviewed de 

novo rather than under an abuse of discretion standard, plaintiff cites a handful of 

cases that were decided prior to the Supreme Court's contrary (and controlling) 

decision in Wilton. (See Plaintiffs Opening Br. pp. 4,62.) The other decision 

cited by plaintiff, Wirgner v. Professional Engineers in Cal. Gov 't., 354 F.3d 1036 

(9th Cir. 2004), mentions de novo review before discussing the merits (id. at 1040); 

but when the decision proceeds actually to analyze a district court's refusal to 

issue a declaratory judgment, it does so specifically under the abuse of discretion 

standard. See Wagner, 354 F.3d at 1050-5 1.


acting in concert with them or on their behalf, from continuing to make statements in 

the classroom that are hostile towards religion and favor irreligion over religion" and 

to require the School District "to institute a training and mentoring program." (ER 19, 

pp.360-61); 2) the FAC alleged that Defendants' "practice and policy" were hostile 

toward religion and treated students with religious beliefs as second-class citizens 

(ER 19, p.359), and sought a declaration to that effect; and 3) the 'Teloza" comment 

that the District Court found to violate the Establishment Clause was not mentioned 

in the FAC (ER 19). 

STATEMENT OF FACTS 

Dr. James Corbett has taught in the Capistrano Unified School District 

("School District" or "District") for more than twenty years. (SER 44, p. 18.) He has 

taught Advanced Placement European History ("AP Euro") at Capistrano Valley High 

School for approximately sixteen years. Id. He is a Christian who prays daily and 

regularly attends church services. (SER 45-2, pp.35,40.) 

The AP Euro standards are equivalent to a University of California course. 

(SER 44, p.93.) The College Board's published course description states: 

The study of European History since 1450 introduces students to cultural, 

economic, political, and social developments that played a fundamental role in 

shaping the world in which they live. Without this knowledge, we would lack 

the context for understanding the development of contemporary institutions, 

the role of continuity and change in present-day society and politics, and the


evolution of current forms of artistic expression and intellectual discourse. [I] 

In addition to providing a basic narrative of events and movements, the goals 

of AP European History are to develop (a) an understanding of some of the 

principal themes in modern European History, (b) an ability to analyze 

historical evidence and historical interpretation, and (c) an ability to express 

historical understanding in writing. 

(SER 46-4, p.3 1 .) 

AP Euro covers intellectual and cultural history, including: "Changes in 

religious thought and institutions," "Secularization of learning and culture," 

"Scientific and technological developments and their consequences," "Changes in 

elite and popular culture, such as the development of new attitudes toward religion, 

the family, work, and ritual." (SER 46-4, p. 3 1.) Non-religious subtopics include 

"Gender roles and their influence on work, social structure, family structure, and 

interest group formation," "The shift in social structures from hierarchical orders to 

modern social classes: the changing distribution of wealth and poverty," "The 

extension and limitation of rights and liberties (personal, civic, economic, and 

political); [and] majority and minority political persecutions." (SER46-4, pp.3 1-32.) 

Rather than prescribing a curriculum, the AP program expects the teacher to 

develop an appropriate curriculum. (SER 44, p.40.) In Summer 2007, Dr. Corbett 

sent a letter to incoming students who had signed up for the Fall 2007 AP Euro class, 

including Farnan, to explain how the class would operate. Dr. Corbett explained,


"Most days we will spend a few minutes (sometimes more) at the beginning of class 

discussing current events . . . . Discussions will be quite provocative and focus on the 

'lessons' of history. My goal is to have you go home with something that will 

provoke discussion with your parents. Students may offer any perspective without 

concern that anything they say will impact either my attitude toward them or their 

grades. I encourage a full range of views." (SER 44, p.94.) Farnan received and read 

this letter. (SER 45, pp.7 1-72.) 

Dr. Corbett seeks to teach students to identify central questions and construct 

logical thesis statements, to view historical materials analytically and critically, and 

to arrive at conclusions based on informed judgment. (SER 44, p. 18.) His pedagogy 

is intentionally provocative in order to elicit responses from his students and to help 

them develop critical thinking skills. He tries to have AP Euro students "question and 

try to come up with a [sic] analysis of what is true [and] is not true, from historical 

perspective." (SER 45-2, pp. 10-1 1 .) Corbett told his AP Euro students during class 

that, "[Ilt is completely safe, in here anyway, to disagree with me, make a comment, 

whatever you want to say. I don't care. The only thing you'll get from me in 

response is, 'On what basis . . . have you come up with this particular perspective? 

[y] I mean, there's almost always more than one point of view on stuff." (ER 13, 

pp.270-7 1 .)

Dr. Corbett also encourages students to express themselves by permitting them 

to place any political posters on his wall that are not "inappropriate." (SER 45-2, 

pp.44-46.) 


As an example of how Dr. Corbett relates history to current events can be seen 

in a class discussion wherein he begins by engendering thought about tax exemptions 

for religious organizations who benefit from public services. Dr. Corbett asks, "Why 

-why should I pay? [...I Why should a Jew or an atheist or a Muslim have to pay for 

something from some church that he disagrees with?" (ER 7, p.157:20-23.) Dr. 

Corbett then mentions the barriers to peace caused by Jewish settlements in the West 

Bank, the relationship between Israel and the United States (in response to a student 

question), and the failure of the United States to take steps to save European Jewry 

from the Holocaust. (ER 7, pp. 159-61.) Dr. Corbett then shifts to a lecture on 

Napoleon's military campaigns (ER 7, pp.l61:3-170:3) during which he draws 

comparisons to Hitler's military efforts (ER 7, p. 163 : 16-25), and the role of religion 

in rallying people in various countries against Napoleon. (ER 7, p. 162: 18-2 1 .) He 

concludes by summarizing Napoleon's political, educational and legal contributions, 

and showing how they resonate in Mexico today. (ER 7, pp.170:4 -173:15.) Dr. 

Corbett weaves throughout this class themes about how national and ethnic groups 

have used historical myths, religious beliefs, and economic power to create and


maintain political entities. 

In a lecture on deductive reasoning, from which Farnan draws many purported 

examples of anti-religious hostility (Plaintiffs Opening Br. 14- 18(b)-a)), Dr. Corbett 

told his AP Euro class, "Aristotle was a physicist. He said, 'no movement without 

movers.' And he argued that, you know, there sort of has to be a God. Of course 

that's nonsense. I mean, that's what you call deductive reasoning, you know. And 

you hear it all the time with people who say, 'Well if all of this stuff that makes up 

the universe is here, something must have created it.' Faulty logic. Very faulty 

logic." (ER 15, pp.304-05.) Dr. Corbett told his class, "Contrast [the scientific 

approach] with creationists. They never try to disprove creationism. They're all 

running around trying to prove it. That's deduction. It's not science. Scientifically 

it's nonsense." (ER 15, p.3 12.) Farnan drops the following sentence from the middle 

of his selective quotation of the transcript from that same lecture (Plaintiffs Opening 

Br. 14(b)): "If there are two points of view, it's incumbent upon the scholar to 

recognize if one point of view is rational and generally supported by evidence, and 

the other point of view is not . . . ." (ER 15, pp.293-94.) Later in the lecture, he 

continued, "We get a few mentally ill, anti-semitic, narrow-minded critics who 

believe that the Holocaust didn't happen, you know. It would be insane of me to give 

them the opportunity to put forth their nonsense to a bunch of teenagers. It's part of


my job to filter out the bull. . . . [Tlhere are rational explanations for Mr. Bush's tax 

policies. But you're entitled to your opinion. You're not entitled to your own facts." 

(ER 15, pp.294-95.) 

In Fall 2007 Farnan was a sophomore when he took Dr. Corbett's AP Euro 

course. Without the knowledge of or permission from Dr. Corbett or his principal, 

Farnan tape recorded hours of Dr. Corbett's AP Euro class. (SER 45-2, p.50.) 

California law prohibits classroom taping without the consent of the teacher and 

school principal. Cal. Educ. Code, $5 15 12. 

Farnan believes in creationism, and that there is a scientific basis for 

creationism. He believes creationism should be taught in schools along with 

evolution. (ISER 56-3, p. 26.)2 Neither Farnan nor his parents ever told Dr. Corbett 

that they were offended by anything Dr. Corbett said in class. (SER 45, pp. 104-05.) 

Neither Farnan nor his parents contacted Dr. Corbett to raise any concerns about the 

class before filing this lawsuit. (SER 45, pp. 102-05; 45-2, p.25.) After filing the 

lawsuit in this case and completing the first semester of AP Euro, Farnan stopped 

attending Dr. Corbett's class. (SER 45, pp.83-84.) 

Farnan sent an email after this case was filed in which he wrote, "This [case] 

isn't about Christianity [sic] nor religion; it's about a student's right as a citizen to be 

"ISER" refers to the Intervenors' Supplemental Excerpt of Record.


able to sit in a public school without having to listen to a teacher's biased rantings." 

(ISER 56-3, p. 26.) 

Context of The Peloza Comment 

During one class, Dr. Corbett was lecturing on the attempts to unify Italy in the 

Nineteenth Century. (ER 10, p. 184.) A student requested that he tell the story about 

John Peloza, a former teacher in the School District. (ER 10, p.194.) Dr. Corbett 

explained that Peloza had taught Biology when Corbett was an advisor to the student 

newspaper. After the student newspaper editor wrote an opinion piece criticizing 

Peloza for teaching religion (creation science) instead of science, Peloza sued Dr. 

Corbett (and the District and other teachers) for libel. (ER 10, p.195.) The District 

provided Dr. Corbett with an attorney who asked him to make no public statements 

about the lawsuit. (ER 10, p. 197.) Corbett then recounted to his students: 

At that point, I stood up and said, 'I'll tell you what. I will sign a statement 

giving you - you do not have to defend me, but I will not leave [Peloza] alone 

to propagandize kids with this religious, superstitious nonsense. [TI Every time 

he opens his mouth, I'm going to be there, and I'm going to do my best to 

make him look like a fool. If you can't handle that, that's okay. You don't 

have to defend me.' 

(ER 12, pp. 197: 19-198:2.) Peloza's lawsuit resulted in Peloza v. Capistrano Unzfied 

School District, 37 F.3d 517 (9th Cir. 1994), where this Court rejected Peloza's 

contention that "evolutionism" was a religion that he could not be compelled to teach.

Id at 521. 


Context of Other Statements Claimed by Plaintiff to be Hostile to Relipion 

Immediately prior to making the statements set forth by Farnan in his Opening 

Brief at 15, fld, Dr. Corbett was explaining to students that they needed to understand 

that a consequence of the religious wars in Europe was 'that mankind becomes - 

because of the seismic revolution - a kind of cog in a cosmic clock instead of God's 

most important creation." (ER 15, pp.300-02.) In the statements quoted by Plaintiff 

concerning biblical literalism, Dr. Corbett was explaining the mindset of persons 

prior to the scientific revolution in the sixteenth century. (SER 44, p.2 1 .) 

Shortly after making the statements set forth by Farnan in his Opening Brief 

at 16 & 17, flflf & g, including the "Mark Twain quote," as part of a lecture explaining 

the differences between inductive and deductive reasoning, Dr. Corbett explained to 

his students, "There's lots of things you know, where deduction works just fine. But 

it's not scientific, and it doesn't lead you to scientific truth. It doesn't lead you to 

truth that has the weight of truth that is arrived at through systematic observation and 

experimentation." (ER 15, p.309.) 

Immediately prior to making the statements set forth in Farnan's Opening Brief 

at 18, Ti, Dr. Corbett explained to his class, "Remember the other day I was telling 

you about (inaudible) and violence against the Mormons? The next day, Robert


Novak wrote a column about it. Said many of the same things that I said, which is 

that, you know, nobody ever asked about religion when Mitt Rornney's father ran. 

And he won Michigan, even though Michigan is obviously not a particularly Mormon 

state." (ER 15, p.33.) 

Immediately prior to making the statements set forth by Farnan in his Opening 

Brief at 2 1,qjo, Dr. Corbett was explaining the impact of the industrial revolution on 

rural life. He stated, "[Slociety begins to change [. . .] it's important for us to 

recognize here, this division of society that we're experiencing now and that we see 

when we confront the muslim world, um, they're the same as these people were 

running into then." (ER 1 1, p.2 15 .) He continued, "If you've got a horse, you're rich. 

Poor people didn't move around much. And you can't imagine the social control that 

you have, especially if it's over young people in that kind of a traditional 

community." (ER 1 1, p.215.) 

Dr. Corbett's statements concerning "spaghetti monster" reasoning and 

Aristotle's logical error in deducing God from "movement" were part of a lecture on 

scientific reasoning, which Dr. Corbett distinguished from magical thinking and 

deductive rea~oning.~ (ER 15.) Corbett was not referring to Aristotle's belief in 

Corbett had used the "spaghetti monster" to say elsewhere in the class 

(untranscribed) that "all people in all cultures who have faith in their gods, 

whether they worship Zeus, Jupiter, or for that matter, the Spaghetti monster,


divine power as "nonsense," but in the faulty deductive reasoning used by Aristotle. 

(SER 44, p.22.) 

Dr. Corbett used the phrase "Jesus glasses" in reference to how certain political 

and religious leaders used Christianity to cause the peasantry to act against their 

economic self interest when Joseph 11 sought to end serfdom and modernize the 

church. (ER 12, pp.255-56; SER 44, p.26.) 

The paragraph quoted by Farnan that discusses a negative correlation between 

church attendance and crime rates in the United States and Sweden (Plaintiff 's 

Opening Br. at 10(d); ER 12, pp.235-36), begins with the following sentences that 

Farnan omits: "Here's another interesting thing that just kind of - I'm not implying 

causality. I'm just using correlation. People in Europe who are least likely to go to 

church: The Swedes." (ER 12, p.236.) The District Court specifically relied upon the 

omitted sentences in finding that this discussion did not violate the Establishment 

Clause. (ER4, p.79.) Dr. Corbett's purpose in presenting this information during the 

current events discussion was to demonstrate that correlations do not by themselves 

demonstrate causality. (SER 24, ~.27.)~ 

believe." (SER 44, p.22). "Spaghetti monster" is a term coined by science 

advocates who were critical of the logic of teaching "creation science" in schools. 

4 Dr. Corbett gives other such examples of correlation and causality in his lecture 

on deductive reasoning. (ER 15, p.307.)


Dr. Corbett's Positive and Sympathetic Comments About Reli~ion 

Dr. Corbett spoke to his AP Euro class about a former Christian fundamentalist 

student whom Dr. Corbett called "absolutely brilliant." Dr. Corbett stated that he and 

another teacher (whom Dr. Corbett describes as a friend and fundamentalist 

Christian) tried to get the student to attend a more academically challenging school 

than Biola [Bible Instititute of Los Angeles] University. Dr. Corbett indicated that 

he expected that student to attend a school like Harvard Divinity School someday. 

(ER 13, pp.268-69.) 

Dr. Corbett told his students that he would tell them one "religious belief' of 

his own: "I strongly believe that people should not be like the Pharisees and pray on 

street comers where people can take notice. I think if they come to God, they should 

come to him in private." (ER 7, p. 142.) 

Dr. Corbett spoke positively and sympathetically about Orthodox Armenian 

priests who were killed by the Turks because they were guardians of Armenian 

culture. (SER 44, p. 1 16.) Dr. Corbett told his students while lecturing on political 

absolutism, democracy, and the "general will" on which Rousseau relied, "Yes, you 

do not want to be a Jew in the society where people have decided, 'These are the 

values we are going to use.' You do not want to be anything that's outside the 

mainstream." (ER 7, p. 14 1:5-8.)


Dr. Corbett also sympathetically described how prejudice against Mormons had 

hurt Governor Romney's campaign for President. (ER 15, p.323.) He discussed how 

the introduction of "Jesus" into the political arena resulted in Mormons and non- 

Christians losing political influence. (ER 15, pp.323-25.) 

SUMMARY OF ARGUMENT 

Advanced Place European History ("AP Euro") course is a college level 

course that requires high school students to master 500 years of complex history 

and demonstrate analytical and reasoning skills in applying historical evidence to 

contemporary events on the famously difficult AP Euro test. Dr. Corbett has been 

teaching AP Euro for sixteen years with good results. The course includes 

numerous subtopics related to the role of religion and religious beliefs in society. 

Farnan cannot show that Dr. Corbett's numerous statements that touch upon 

religion, religious beliefs, or political and moral issues which religious people 

adopt, violate the Establishment Clause, separately or as part of a pattern of 

hostility to religion. Many statements cited by Farnan have nothing to do with 

religion directly, or Farnan has taken them out of context to make it appear that the 

statements lacked a secular purpose. Others statements on religious topics were 

clearly made as part of lectures with the secular purpose of teaching the 

information and analytical skills that students need to pass the AP Euro test. A


reasonable observer would not understand the primary effect of these comments in 

the context of the course to be hostile to religion. Nor do the comments, apart or 

together, raise a concern about excessive entanglement. On these points, Union 

intervenors agree with the District Court. 

The District Court erred by finding that the "Peloza" statement alone lacked 

a valid secular purpose and had a primary effect of hostility to religion. Dr. 

Corbett made this comment while telling a personal story in the midst of a 

classroom discussion. His comment was directed not at the religious beliefs of 

Mr. Peloza, but at Peloza's improper actions. Dr. Corbett's personal comments 

were not official government action of the sort that the Establishment Clause 

polices. Nor would a reasonable observer believe the comment had the 

imprimatur of the School District. The context shows that there were valid secular 

purposes for the comment. The Ninth Circuit should reverse on this issue. 

Should the Court find that Dr. Corbett violated the Establishment Clause, he 

is entitled to qualified immunity in light of the novelty of this case of first 

impression. The District Court correctly permitted Defendants to amend their 

answer in order to make the defense available to Dr. Corbett. The District Court 

correctly ruled in Dr. Corbett's favor in this regard. 

Concerning Farnan's appeal of the District Court's denial of declaratory


relief, that issue is now moot in light of Farnan's graduation fi-om high school. 

Even if not moot, the District Court correctly exercised its discretion in denying 

declaratory relief 

ARGUMENT 

I. Dr. Corbett's Statements Did Not Violate the Establishment Clause 

A. Legal Framework 

The religion clauses of the First Amendment state, "Congress shall make no 

law respecting an establishment of religion, or prohibiting the free exercise 

thereof." "[The Establishment Clause] was intended to protect against 

'sponsorship, financial support, and active involvement of the sovereign in 

religious activity."' Grove v. Mead, 753 F.2d 1528,1534 (9" Cir. 1985) [quoting 

Lemon v. Kurtzman 403 U.S. 602,612 (1971) and Walz v. Tax Commission, 397 

U.S. 664,668, 90 S.Ct. 1409, 14 1 1,25 L.Ed.2d 697 (1 970)). 

"[Tlhe First Amendment mandates governmental neutrality between religion 

and religion and between religion and nonreligion."' McCreary County v. ACLU, 

545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) [quoting Epperson v. 

Arkansas, 393 U.S. 97, 104,89 S.Ct. 266,21 L.Ed.2d 228 (1968)l. Government 

conduct towards religion "must be judged in its unique circumstances to determine 

whether it constitutes an endorsement or disapproval of religion." Lynch v.


Donnelly 465 U.S. 668,694, 104 S.Ct. 1355,79 L.Ed.2d 604 (1984) (O'Connor, 

J . , concurring). 

The Establishment Clause only bars governmental activity or speech that 

has a meaningful and practical impact upon religion and religious preference. 

"The First Amendment does not prohibit practices which by any realistic measure 

create none of the dangers which it is designed to prevent and which do not so 

directly or substantially involve the state in religious exercises or in the favoring 

of religion as to have meaningful and practical impact. . . . [Glreat consequences 

can grow from small beginnings, but the measure of constitutional adjudication is 

the ability and willingness to distinguish between real threat and mere shadow." 

School District ofAbington Township, Pennsylvania. v. Schempp, 374 U.S. 203, 

308, 83 S.Ct. 1560, 1616 (1963) [Goldberg, J., concurring]. 

To determine the validity of a challenged governmental action under the 

Establishment Clause, federal courts have applied a highly-contextual three-part 

analysis. Lemon, 403 U.S. 602; Vasquez v. Los Angeles County, 487 F.3d 1246, 

1249 (9th Cir. 2007). The challenged action must (1) have a secular purpose; (2) 

have a primary effect which neither advances nor inhibits religion; and (3) not 

foster excessive state entanglement with religion. Lemon, 403 U.S. at 6 12- 13. All 

three elements of the Lemon analysis must be satisfied for the governmental action

to pass muster. Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573,2577, 

96 L.Ed.2d 510 (1987); Kreisner v. City of San Diego, 1 F.3d 775,781 (9th Cir. 

1993). 


1. Secular Purpose 

"It is in this phase of our analysis that we recognize the broad 

discretion vested in the school board to select its public school curriculum. 

Government action is improper where there is no secular purpose to support it, but 

to determine that there is no secular purpose, we must find that the action was 

'motivated wholly by religious considerations. "' Fleischfresser v. Directors of 

School Dist. 200, 15 F.3d 680,688 (7th Cir. 1994) [citing Lynch, 465 U.S. at 680, 

104 S.Ct. at 13621. A governmental activity lacks a valid secular purpose only 

where "there was no question that [it] was motivated wholly by religious 

considerations." Lynch, 465 U.S. at 680, 104 S.Ct. at 1362-1363. This Circuit has 

held that government action passes muster even if one purpose of the challenged 

action is secular. Cammack v. Waihee, 932 F.2d 765 (9th Cir. 199 I), cert. denied, 

505 U.S. 1219 (1992). 

The Court must focus "solely on purpose" and cannot "question the 

propriety of the means to achieve that purpose or whether the defendants were 

correct or even reasonable in the assumptions underlying their actions.. . ."


American Family Association v. City and County of San Francisco, 277 F.3d 

1 1 14, 1 12 1 (9th Cir. 2002), cert. denied, 537 U.S. 886 (2002). Further, the court 

"must be 'reluctant to attribute unconstitutional motives' to government actors in 

the face of a plausible secular purpose." Kreisner, 1 F.3d at 782 (quoting Mueller 

v. Allen 463 U.S. 388,394-95, 103 S.Ct. 3062,77 L.Ed.2d 921 (1983)). 

Government activity aimed at avoiding violations of the Establishment 

Clause has a legitimate secular purpose. Lemon, 403 U.S. at 6 13,9 1 S.Ct at 2 1 1 1 ; 

Vernon v. City of Los Angeles, 27 F.3d 1385, 1397 (9th Cir. 1994). Similarly, the 

purpose of preventing discrimination against religious and other types of speech is 

"undeniably secular." Board of Ed. of Westside Community Schools (Dist. 66) v. 

Mergens, 496 U.S. 226,248, 110 S.Ct. 2356,2370-71, 110 L.Ed.2d 191 (1990). 

2. Principal or Primary Effect 

The "primary effect" element of the Lemon analysis asks whether it 

would be objectively reasonable for the challenged governmental action to be 

understood as sending primarily a message endorsing or disapproving of religion. 

Vernon, 27 F.3d at 1398. The primary effect is viewed from the perspective of an 

observer who is both informed and reasonable. American Family, 277 F.3d at 

1122. In American Family, this Court found a constitutionally valid effect of 

particular statements in challenged government documents that showed hostility to


the religious view that homosexuality is sinful or immoral, because, "The 

documents, read in context as a whole, are primarily geared toward promoting 

equality for gays and discouraging violence against them." Id. The objective 

standard is also applied in the public school context. "If an Establishment Clause 

violation arose each time a student believed that a school practice either advanced 

or disapproved of a religion, school curricula would be reduced to the lowest 

common denominator, permitting each student to become a 'curriculum review 

committee' unto himself or herself:? Brown v. Woodland Joint Unified School 

District, 27 F.3d 1373, 1379 (9"' Cir. 1994). 

3. Entanglement 

The third element of the Lemon analysis examines whether the 

challenged governmental activity shows an excessive entanglement with religion. 

Lemon, 403 U.S. at 613. In Lemon, the Supreme Court found that statutes 

providing public funds for secular education in religious schools in Pennsylvania 

and Rhode Island created excessive entanglement. Id. Rhode Island provided 

funding for teachers of secular subjects in religious schools that required 

"comprehensive and continuing" state surveillance to make sure the teachers were 

not involved or used in religious matters. Both statutes posed the danger of 

divisive political activity and the possibility of progression toward the


establishment of state churches and a state religion. Id. at 2 1 16. 

4. Not All Public Employee Speech Carries the Imprimatur of 

The Employer Nor of State Action 

The Ninth Circuit has recently analyzed when a public employee 

speaks as a private citizen with First Amendment protection: 

"Statements are made in the speaker's capacity as citizen if the speaker had 

no official duty to make the questioned statements, or if the speech was not 

the product of performing the tasks the employee was paid to perform." , 

citing Eng v. Cooley, 552 F.3d 1062, 107 1 (9th Cir.2009). Statements do not 

lose First Amendment protection simply because they concern 'the subject 

matter of [the plaintiffs] employment." Freitag v. Ayers, 468 F.3d 528, 

545 ( 9~ Cir. 2006); see Garcetti, 547 U.S. at 421). "[Wlhether the plaintiff 

spoke as a public employee or a private citizen [I is a mixed question of fact 

and law." Posey v. Lake Pen Oreille Sch. Dist. No. 84, 546 F.3d 1121 (9th 

Cir. 2008)." 

Anthoine v. North Central Counties Consortium 605 F.3d 740,749 (9' Cir. 2010) 

B. Parnan9s Offense at Statements with No Religious Content Raise 

No Establishment Clause Issues 

As the District Court noted, many of the statements that Farnan claims are 

hostile to religion do not even mention religion, such as Dr. Corbett's comments 

about birth control. (Plaintiffs Opening Br. p. 12; ER 4, p.62.) Farnan also cites 

statements about Rush Limbaugh and the misuse of "fair and balanced" buzz 

words as purported evidence of a pattern of anti-conservative views. (Plaintiffs 

Opening Br. pp.12, 14.)

The District Court correctly determined that requiring teachers to tailor the 

classroom to the principles or prohibitions of a religious sect or dogma would 

itself violate the First Amendment. ER 4, p.64 (quoting Epperson, 393 U.S. at 

106). And, at a minimum, statements not about religion cannot violate the 

Establishment Clause, as such statements on their face satisfy all three elements of 

Lemon. For example, Dr. Corbett's comments about the oppression of women, 

support for minorities, and in favor of the separation of church and state in 

purpose and effect pertain to combating discrimination and are clearly secular. 

Mergens, 496 U.S. at 248, 110 S.Ct. 2356,2370-71, 110 L.Ed.2d 191 (1990). 

Farnan's use of the Establishment Clause to silence non-religious speech is 

perhaps not surprising in light of his statement that, "This [case] isn't about 

christianity [sic] nor religion; it's about a student's right as a citizen to be able to 

sit in a public school without having to listen to a teacher's biased rantings." 

(ISER 56-3, p. 3 1 .) The Court should reject Farnan's attempt to use the 

Establishment Clause as a sword to silence speech about political, social and 

historical issues with which he disagrees. 

111 

I// 

Ill 



C. Dr. Corbett9s Statements About Religion Were Part of an 

Appropriate Secular Education Program and Were Lawful 

1. Except for Its Ruling on the Peloza Comment, the District 

Court Correctly Found that Statements About Religion 

Satisfied the Lemon Analysis 

Though the District Court reviewed hours of tapes and transcriptions 

recorded in violation of California law by Farnan over the months he attended AP 

Euro, it concluded that all passed constitutional muster, except for the Peloza 

comment, which is addressed separately below. 

a. Secular Purpose 

To pass the AP Euro test students must have a solid grasp of the conflicts 

between religious bodies that contended for power and popular support for 

centuries, and the challenges that the scientific revolution posed to religious 

economic, political, intellectual and moral authority. Students must demonstrate 

analytic skills to relate that history to the contemporary controversies in which 

scientific and religious approaches inform policy debates and struggles for 

political power. (See, e.g., SER- 46-4, p.3 1 .) 

Farnan cites as evidence of anti-Christian hostility Dr. Corbett's "Jesus 

glasses" comment. (Plaintiffs Opening Br., p. 9(a); ER 12, pp.255-56.) The 

transcript shows that this comment -- as well as a longer quote from the same


lecture provided by Farnan (Plaintiffs Opening Br., p. 1 l(e)) came in the middle 

of a lecture about the reforms proposed by Joseph 11 to liberate serfs and 

modernize the Catholic church. (ER 12, pp.245-55.) As the District Court found, 

Dr. Corbett's "primary purpose was to illustrate the specific historical point 

regarding the peasants . . . and the general point that religion can cause people to 

make political choices which are not in their best interest." (ER 4, p.73.) 

Nor was Dr. Corbett hostile to religion when he stated about the Boy 

Scouts, "If they want to be an exclusive, Christian organization or an exclusive 

God-fearing organization, then they can't receive any more support from the state, 

and shouldn't. (Plaintiffs Opening Br., p. 1 O(b); ER 12, pp.235-36.) Farnan also 

finds a similar comment concerning the tax exempt status of religious 

organizations to be hostile. (Plaintiffs Opening Br.. p.20(n); ER 8, pp. 156-57.) 

Dr. Corbett is a Life Scout with the Boy Scouts, and the purpose of his comment 

was to show that groups who are subjected to discrimination should not have to 

pay taxes to support their discriminators. (SER 44, p.26.) As the District Court 

correctly found, these comments were "primarily geared toward espousing 

tolerance and non-discrimination, as well as separation of church and state." (ER 

4, p.68.) Such predominantly secular goals do not violate the Establishment 

Clause. Am. Family, 277 F.3d at 1 1 18.


Dr. Corbett's statements concerning Governor Romney and religion in the 

2008 presidential campaigns are not hostile to religion. (Plaintiffs Opening Br., 

p. 18(i) & (j).) Dr. Corbett's point was to show how the introduction of religion 

into the 2008 presidential race resulted in Mormons and non-Christians losing 

political influence. (ER 15, pp.323 :2 1-3252.) The evident and predominant 

purposes of these comments were to help students understand the role of religion 

in the politics of European History and to sensitize students to the consequences of 

religious discrimination. Both purposes are "undeniably secular." Mergens, 496 

U.S. at 248. 

Farnan claims that Dr. Corbett's comments about the oppression of women, 

including by conservative Christians and fundamentalists in Afghanistan, is 

evidence of hostility to religion. (Plaintiffs Opening Br., pp. 10- 1 1 (d).) 

Likewise, Dr. Corbett's statements about the inverse correlation between church 

attendance and crime rates are described as hostile. (Plaintiffs Opening Br., 

p.lO(c); ER 12, pp.236-37.) Nevertheless, these statements are driven by the 

secular topics to be covered in AP Euro, such as gender roles, social structure, 

family structure, interest group formation, and the "development of new attitudes 

toward religion, the family, work, and ritual". (SER 46-4, pp.3 1-32.) Farnan 

obfuscates the secular purpose of the comment about the crime and church

attendance correlations by omitting the first sentences in the paragraph he quotes 

- the sentences relied upon by the District Court in finding that these comments 

were mainly about deductive reasoning and did not violate the Establishment 

Clause. (ER 4, p.79.) Faman's attempt to bar secular speech that questions 

religion's impact on people's lives is troubling and must be rejected. 

In his lecture on deductive reasoning, Dr. Corbett uses contemporary attacks 

on evolutionary theory by creationists in a number of examples, many of which 

Faman quotes as hostility to religion. (ER 15; Plaintiffs Opening Br., pp. 14- 18.) 

In one such quotation, Faman uses ellipses to drop the following sentence in the 

middle of the quoted paragraph: "If there are two points of view, it's incumbent 

upon the scholar to recognize if one point of view is rational and generally 

supported by evidence, and the other point of view is not". (Plaintiffs Opening 

Br., p. 14(b); ER 15, pp.293-294.) The omitted sentence expresses the secular 

purpose for Dr. Corbett's lecture, which is teaching the "ability to analyze 

historical evidence." (SER 44, p.42.) Developing this ability is an AP Euro goal. 

The District Court correctly determined that all such statements had a valid secular 

purpose.' 


' This finding is entirely consistent with caselaw holding that schools and teachers 

may present materials or ideas that could be deemed critical of religion or 

objectionable to religious persons, particularly when those materials constitute a

. The Primary Effect of Dr. Gorbett9s Statements Was 

Secular 

A reasonable and informed high school student in Dr. Corbett's class would 

not understand the primary effect of Dr. Corbett's lectures and comments to be a 

disapproval of religious belief or hostility to religion. Am. Family, 277 F.3d at 

1122. In American Family, this court looked at the complete context of the 

government actions being challenged, not simply the aspects that expressly 

criticized religious right and that showed hostility to the religious view that 

homosexuality is sinful or immoral. Id. The Court found that any hostility to 

religion was secondary, and that a reasonable observer would have found the 

primary effect of the city's action to be promoting gay rights. Similarly here, the 

primary and secular effect of Dr. Corbett's lectures and comments is to prepare 

students to be tested about the events and trends in European history, to 

distinguish argument grounded in facts and logic from that grounded in 

suppositions and unquestioned assumptions, and to relate that history to issues in 

contemporary society. The District Court correctly determined (with the exception 

of the Peloza remark) that all Dr. Corbett's statements had primarily secular 

effects. 


relatively small portion of the overall education program. See Brown, 27 F: 3d. at 

1384; Grove) 753 F.2d. at 1540; Fleischfresser) 15 F.3d at 689.


c. Dr. Corbett's Statements Raise No Excessive 

Entanglement Concerns 

The lectures and statements of Dr. Corbett that Farnan challenges do not 

pose any danger of excessive entanglement with religion. This Court has 

recognized that entanglement under Lemon involves either political or 

administrative entanglement. Nurre 580 F. 3d3at 1098-99. Though many AP 

Euro topics concern religion, their study for academic purposes does not implicate 

the Establishment Clause or amount to excessive administrative entanglement. 

Schemppp, 374 U.S. 203. Nor does it involve excessive political entanglement. 

And even if evidence of political divisiveness existed, such evidence alone would 

be insufficient to show entanglement. 

2. The District Court Erred in Finding that Peloza Statement 

Violated the Establishment Clause 

In an afterword to its Final Order, the District Court noted it had "found that 

a single statement transgresses Farnan's First Amendment rights". (ER 4, p.92.) 

The District Court erred. The Peloza statement does not implicate Establishment 

Cause concerns about government abridgement of religious liberty or sectarian 

religious influence over government policy. 

Dr. Corbett spoke about Peloza's 1990's lawsuit in response to a student 

question. It is a personal story, though it involves themes about creationism,


intellectual honesty, and mythologies that are tied to AP Euro. Dr. Corbett 

explained how he came to be sued for libel by Mr. Peloza, his frustration with the 

attorney provided by the School District who sought to muzzle him, and his belief 

that Peloza was misusing his position as a Biology teacher to proselytize students 

about young earth creationism. Dr. Corbett then recounted to the students that he 

had shared this belief with the attorney more than ten years before. (ER 10, 

pp.197: 19-1 98:2.) 

The Peloza statement was part of a free class discussion that had the 

attributes of a limited public forum.6 Dr. Corbett's statement as part of that 

discussion is not official government speech in the same manner as a school board 

textbook selection process or a policy requiring bible reading in class. The point 

For the purposes of Establishment Clause analysis, it is sufficient if a reasonable 

observer views the classroom as a limited public forum. First Amendment rights 

must be viewed "in light of the special characteristics of the school environment." 

Tinker v. Des Moines Independent School District, 393 U.S. 503, 506, 89 S.Ct. 

733,736,21 L.Ed.2d 73 1 (1969). "[S]chool facilities may be deemed to be public 

forums only if school authorities have 'by policy or by practice' opened those 

facilities 'for indiscriminate use by the general public," Perry Education Assn. v. 

Perry Local EducatorslAssn., 460 U.S. 37,47, 103 S.Ct. 948,956,74 L.Ed.2d 

794 (1983); See also Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,267, 

108 S.Ct. 562,568 (1 988). The campus of a public university possesses many of 

the characteristics of a public forum. Widmar v. Vincent 454 U.S. 263,268, 102 

S.Ct. 269,274 (1981). As AP Euro is a university level course, and the School 

District invites open and free discussion of controversial matters in this course, the 

reasonable observer would view this class as a limited public forum.


of a current events open discussion in AP Euro is to encourage participants to 

freely speak about matters of public concern and learn to support their position 

with facts and reason. The effectiveness of such discussions depends upon the 

sharing of sincerely held controversial opinions and personal experiences. Dr. 

Corbett was not speaking as an agent of the government when he recounted the 

Peloza anecdote - in fact, he was telling the students that he would not do what 

the government-provided attorney wanted him to do: shut up. 

Dr. Corbett spoke as a citizen about a matter of public concern, and as such 

his speech was not that of his employer, and would not be a governmental action 

that violates the Establishment Clause. Anthoine, 605 F.3d at 749. 

a. There Was a Secular Purpose for the Comment 

Because It Was Directed Not at Religious Belief But 

at the Unconstitutional Practices of a Biology Teacher 

In context, the phrase "religious, superstitious nonsense" refers not to 

creationism itself, as a religious belief in divine inception, but to Peloza's 

particular efforts as a public school Biology teacher to disparage evolutionary 

theory by equating it with religious belief systems. As noted by this Circuit in 

Peloza, "The Supreme Court has held unequivocally that while the belief in a 

divine creator of the universe is a religious belief, the scientific theory that higher 

forms of life evolved from lower forms is not." Peloza, 37 F.3d (Citing Edwards,

482 U.S. 578, 107 S.Ct. 2573,96 L.Ed.2d 510 (1987). Dr. Corbett's statement 

does not disparage or express hostility to religion. It was Peloza's actions in 

proselytizing students and suing Corbett to which Corbett was reacting. 

Discouraging violations of the Establishment Cause is a valid secular purpose. 

Vernon, 27 F.3d at 1397. The comment also emphasized themes used throughout 

the course by Dr. Corbett and the AP Euro goals by differentiating scientific 

evidence/historical fact on the one hand, and religious belieflhistorical myths, on 

the other. 


b. The Primary Effect Does Not Show Government 

Hostility to Religion 

From the viewpoint of a reasonable objective listener, the primary effect of 

the Peloza comment would not be to believe that the School District or Dr. Corbett 

endorsed hostility to religion in general or even to creationism in particular. This 

is in part because Dr. Corbett and the School District have created what is 

essentially an open forum in the AP Euro classroom. Dr. Corbett formally notifies 

students that the AP Euro class discussions "will be quite provocative," and states 

that students "may offer any perspective without concern that anything they say 

will impact either my attitude toward them or their grades. I encourage a full 

range of views." (SER 44 at 94.) In class, he reminded his AP Euro students, "[Ilt


is completely safe, in here anyway, to disagree with me, make a comment, 

whatever you want to say. I don't care. The only thing you'll get from me in 

response is, 'On what basis are you, you know - have you come up with this 

particular perspective? [TI I mean, there's almost always more than one point of 

view on stuff." (ER 13, pp.270-7 1 .) As noted, Dr. Corbett also permits his 

students to place any political posters on his wall that he feels are not 

"inappropriate." (SER 45-2, p.44-46.) 

In Widmar, the Supreme Court found that, "[Aln open forum in a public 

university does not confer any imprimatur of state approval on religious sects or 

practices." Id. at 274. There is similarly no imprimatur of state disapproval of 

religion when teachers make casual personal remarks in the midst of an open 

classroom discussion, even if the teacher is being paid by the government to be 

present and the students' freedom to leave is constrained. A reasonable and 

informed observer would not understand Dr. Corbett's primary effect to be a 

governmental action hostile to religion. 

c. Dr. Corbett's Comment Does Not Raise Excessive 

Entanglement Concerns 

As previously discussed, passing remarks in a course lecture do not 

constitute excessive administrative or political entanglement with religion. Nurre

580 F.3d at 1098-99; Grove, 753 F.2d at 1540. Moreover, given the lack of 

official imprimatur on this particular comment, the fact that the Peloza comment 

was itself drawing attention to the Establishment Clause, and the general context 

of a free discussion, the Peloza comment certainly poses no danger of 

entanglement. 

11. Even Assuming Dr. Corbett Violated the Establishment Clause, He Is 

Entitled to Qualified Immunity 

The District Court concluded that Dr. Corbett was entitled to qualified 

immunity in his individual capacity with regard to the Peloza comment, as the law 

was not clearly established in 2007 that such a comment would violate the 

Establishment Clause. (ER 2.) Farnan asserts that the District Court should not 

have allowed Dr. Corbett to assert a qualified immunity defense, and that it erred 

in finding Dr. Corbett entitled to qualified immunity. Farnan is wrong on both 

counts. 


A. The District Court Properly Exercised Its Discretion in Allowing 

Dr. Corbett and the School District to Amend Their Answer and 

Obtain a Ruling on Qualified Immunity 

As discussed, on May 1,2009, the District Court issued its order concluding 

that one incidental statement by Dr. Corbett during a lecture failed the Lemon test. 

ER 4. While Union Intervenors had already pled a qualified immunity defense in


their answer, Dr. Corbett and the School District nevertheless moved for leave, 

shortly after the May 1 ruling, to amend their own answer under Rule 15(a) also to 

assert and present a qualified immunity defense. The District Court initially 

denied the motion without prejudice, indicating that, to amend the pleading, Dr. 

Corbett and the District were also obligated to move to mod@ the scheduling 

order pursuant to Rule 16(b). (ER 3, pp.38-39.) Defendants and Union 

Intervenors then submitted appropriate motions under Rule 16(b) and Rule 15(a), 

both of which the District Court granted in a detailed, published order. (ER 2.) 

On appeal, Plaintiff does not challenge the District Court's finding that Dr. 

Corbett and the District established good cause to modify the Rule 16(b) 

scheduling order. Rather, Plaintiff contends that Dr. Corbett had "waived" the 

qualified immunity defense and that the District Court abused its wide discretion 

under Rule 15(a) to allow Dr. Corbett to amend his answer. We discuss each of 

Plaintiffs meritless contentions in turn. 

1. Defendants Did Not Waive Qualified Immunity Defense 

Farnan incorrectly asserts that Dr. Corbett's "failure to raise qualified 

immunity prior to the District Court's ruling on the dispositive motions renders it 

lost." Plaintiffs Opening Br. p.48. As the District Court recognized, this is not an 

accurate statement of the law. (See ER 2, pp. 18-25.) No case holds that a


defendant automatically "waives" qualified immunity by not raising the issue 

before dispositive motions are filed. To the contrary, the Ninth Circuit has held 

that, absent a showing of prejudice, defendants can raise qualified immunity for 

the first time at the summary judgment stage even when qualified immunity was 

not asserted in their answer and defendants did not seek leave to amend the 

answer. Camarillo v. Mecarthy, 998 F.2d 638, 639 (9"' Cir. 1993). Here, Dr. 

Corbett did seek and obtain leave to amend his answer to include qualified 

immunity, and, moreover, as discussed below, the District Court correctly found 

under Rule 15(a) that the amendment caused no prejudice to Farnan. 

While government actors are entitled to raise qualified immunity early in 

litigation, typically via a motion to dismiss, they are not required to do so, and, as 

the Ninth Circuit has recognized, it is not always advisable to do so. Kwai Fun 

Wong v. United States, 373 F.3d 952,957 (9" Cir. 2004); see also Pearson v. 

Callahan, 129 S.Ct. 808, 818-19 (2009). In Kwai Fun Wong, this Court noted the 

difficulty of adjudicating some constitutional claims on a non-existent factual 

record, stating: 

[Wlhile government officials have the right, for well-developed 

policy reasons, to raise and immediately appeal the qualified 

immunity defense on a motion to dismiss, the exercise of that 

authority is not a wise choice in every case. The ill-considered filing 

of a qualified immunity appeal on the pleadings alone can lead not


only to a waste of scarce judicial resources, but to the development of 

legal doctrine that has lost its moorings in the empirical world, and 

that might never need to be determined were the case permitted to 

proceed, at least to the summary judgment stage. 

Id. (citations omitted). Indeed, because of the difficulty in many Section 1983 

cases of assessing the contours of and "precise factual basis for the plaintiff's 

claim," Pearson, 129 S.Ct. at 8 19 (citations omitted), qualified immunity is 

routinely addressed at the summary judgment stage. See, e.g., Brosseau v. 

Haugen, 543 U.S. 194, 195 and n.2 (2004) (per curiam); James v. Rowlands, 606 

F.3d 646, 650 (9th Cir. 2010); Fogel v. Collins, 53 1 F.3d 824, 827 (9th Cir. 2008).' 

Further, the Ninth Circuit occasionally even addresses qualified immunity 

sua sponte on appeal, when the issue was not adjudicated in the trial court in the 

first instance. In Graves v. City of Coeur D 'Alene, 339 F.3d 828 (9th Cir. 2003), 

abrogated in part on other grounds by Hiibel v. Sixth Judicial Dist. Ct. of Nev., 

542 U.S. 177 (2004), for example, this Court considered and resolved a qualified 

immunity issue in a defendant officer's favor, when the case had gone all the way 

to jury verdict and qualified immunity had not been litigated below. Id. at 845 

n.23. The Court noted that defendants had included qualified immunity in their 

' And, in some cases, genuine factual disputes preclude resolving qualified 

immunity via a summary judgment motion, and the qualified immunity issue must 

be adjudicated at trial. See, e.g., DiRuzza v. County of Tehama, 206 F.3d 1304, 

13 14 (9th Cir. 2000).


answer and that qualified immunity was a legal issue that could be decided sua 

sponte based on the factual record that had been developed below. Id.; see also 

Walker v. Gornez, 370 F.3d 969, 974, n.6 (9"' Cir. 2003). Similarly here, the 

District Court correctly concluded that qualified immunity involved a legal 

question that could be decided on the factual record that had been developed for 

summary judgment, and it granted leave to Dr. Corbett and the District to include 

the defense in their answer. 

Farnan likely will attempt to distinguish cases like Graves and Walker on 

the ground that defendants in those cases had asserted qualified immunity in their 

answers. But in making his waiver argument, Farnan ignores that Dr. Corbett in 

fact moved for leave to amend his answer to include qualified immunity as an 

affirmative defense, and the District Court granted him such leave. Farnan cites 

no case holding that a defendant is categorically prohibited from obtaining leave 

to amend his answer to include a qualified immunity defense at any particular 

point in litigation, let alone at the summary judgment stage. Indeed, as this Court 

held in Carnarillo, absent a showing of prejudice, a defendant can assert a 

qualified immunity defense for the first time at the summary judgment stage even 

when qualified immunity was never asserted in an answer. Carnarillo, 998 F.2d at 

639; see also Owens, 244 F.3d at 713 (defendant may raise affirmative defense for


first time in dispositive motion when no prejudice is caused). 

The cases that Farnan cites do not support his waiver argument and, in fact, 

support Dr. Corbett's position that no waiver of qualified immunity occurred. In 

Ringuette v. City of Fall River, 146 F.3d 1 (1" Cir. 1998), the plaintiff claimed that 

a defendant had waived qualified immunity by not raising the defense in his 

answer. The First Circuit found that the plaintiff had failed to preserve that 

objection for appeal, and noted that if the plaintiff had raised the waiver objection 

when the defendant asserted qualified immunity at summary judgment and at trial, 

the defendant "would have had a good chance of persuading the district judge 

[either at summary judgment or at trial] to allow the defense by an amendment to 

the answer." Id. at 4. That is precisely what Dr. Corbett and the District did here: 

They persuaded the District Court that an amendment to their answer was justified. 

Farnan cites authority noting that qualified immunity may save public 

officials the burdens of lengthy litigation and standing trial and noting that, as a 

general matter, officials are expected to raise their entitlement to qualified 

irnmunityprior to trial. See Mitchell v. Forsyth, 472 U.S. 51 1, 526 (1985); Gornez 

v. Toledo, 446 U.S. 635,640 (1980). But none of this authority stands for the 

proposition that a defendant waives qualified immunity by not seeking to amend 

his complaint and present qualified immunity until the summary judgment stage,

efore a final pretrial order or trial date had even been set; and cases like 

Camarilla, Graves, Pearson, and Kwai Fun Wong show that a qualified immunity 

defense can legitimately be raised at the summary judgment stage or later. 

As the District Court here stated, qualified immunity may function as both 

an immunity from burdensome litigation and a defense to liability. (ER 2, p.27.) 

The District Court reasoned that even if a public official entitled to immunity from 

litigation does not avail himself of the immunity entitlement relatively early in the 

case, he may still later avail himself of qualified immunity as a defense to liability. 

Id. In any event, in this case, this Court need not identify any outer limits of any 

waiver "deadline" that might apply to raising the qualified immunity defense, 

because Dr. Corbett's motion to amend his answer and his presentation of the 

defense on the heels of a summary judgment ruling, and before any final pretrial 

conference or trial had occurred, fell well within the parameters of the law cited 

above.8 


Nor does Plaintiffs citation to the Tenth Circuit's unpublished decision in 

Evans v. Fogarty, 2007 WL2380990 (loth Cir. 2007) (unpublished) suggest, let 

alone establish, that Dr. Corbett waived his qualified immunity defense. The 

defendants in Evans sought to raise a qualified immunity defense in connection 

with a second trial, when they had not raised the defense in their summary 

judgment motions, pretrial orders, or post-trial motions during the first trial. 

Those circumstances are highly distinguishable fiom this case, where Dr. Corbett 

raised and presented qualified immunity in connection with a summary judgment 

ruling; no final pretrial orders had been issued; no pretrial conference had


Plaintiffs waiver argument suffers for the additional reason that Union 

Intervenors had already raised the qualified immunity defense on Dr. Corbett's 

behalf in their answer at the outset of the litigation, prior to discovery and long 

before any summary judgment motions were filed. (SER 27, p.6.) The District 

Court correctly determined that Union Intervenors had the right to plead qualified 

immunity on their own behalf and on behalf of Dr. Corbett, their member. (ER 2, 

pp.23-26.) Plaintiff cites no authority demonstrating that this determination by the 

District Court was erroneous. Because Union Intervenors had raised and 

preserved the qualified immunity defense on Dr. Corbett's behalf early in the 

litigation, Dr. Corbett could have presented the issue even without first moving 

under Rule 15(a) to amend his answer. Nevertheless, he and the School District 

did seek and obtain leave to amend their answer under Rule 15(a) - and, as we 

show below, the District Court prudently and appropriately exercised its discretion 

in allowing that amendment. 

Dr. Corbett and the District successfully moved to amend the scheduling 

order under Rule 16(b) to seek amendment of their answer, and Farnan does not 

challenge the District Court's Rule 16(b) findings on appeal. Waiver is not lightly 

inferred, and it cannot be found under the circumstances presented here. Further, 

occurred; and no trial had taken place. 

-45-

as the District Court rightly observed, "Given the complexity of Establishment 

Clause jurisprudence and the novel set of facts presented, it was preferable to 

determine qualified immunity in this action after the Court's ruling with respect to 

whether a constitutional violation occurred." (ER 2, p.22, n.20.) (emphasis 

supplied). 


2. The District Court Acted Well Within Its Discretion in 

Granting Leave to Amend under Rule 15(a) 

Under Rule 15(a), a court shall freely grant a party leave to amend a 

pleading in the interests of justice. Fed.R.Civ.P. 15(a). The policy of granting 

leave to amend is applied with "extreme liberality," as "public policy strongly 

encourages courts to permit amendments." Waldrip, 548 F.3d at 732 (citations 

omitted); see also Owens, 244 F.3d at 7 12; Moore v. Kayport Package Express, 

lnc., 885 F.2d 53 1, 537 (9th Cir. 1989). Absent prejudice to the other party or a 

strong showing on another relevant factor, "there exists a presumption under Rule 

15(a) in favor of granting leave to amend." Eminence Capital, LLC v. Aspeon, 

Inc., 3 16 F.3d 1048, 1052 (9" Cir. 2003) (per curium) (emphasis in original) 

(citation omitted). 

As an initial matter, as noted above, Dr. Corbett was not required to move to 

amend his answer under Rule 15(a) to assert a qualified immunity defense because


Union Intervenors had already raised that defense on his behalf in their answer. 

Farnan cites Harlow v. Fitzgerald, 457 U.S. 800 (1982), and Gomez v. Toledo in 

support of his contention that Union Intervenors did not have the prerogative to 

raise qualified immunity, but those cases merely indicate that defendants generally 

have a responsibility to identify qualified immunity during the course of litigation 

while plaintiffs do not have the burden to plead bad faith or the inapplicability of 

qualified immunity. See Gonzez, 446 U.S. at 640-4 1. Farnan cites no case holding 

that an intervenor defendant, particularly an association of which an individual 

defendant is a member, is prohibited from raising an affirmative defense on its 

member's behalf. And Farnan makes no argument refuting the District Court's 

finding that Union Intervenors had associational standing to assert qualified 

immunity for Dr. Corbett. (See ER 2, pp.23-24.) 

In any event, even assuming that Union Intervenors did not have authority 

to plead the qualified immunity defense on his behalf, Dr. Corbett properly raised 

the defense of his own accord by requesting and obtaining leave to amend his 

separate answer under the liberal amendment policies of Rule 15(a). The District 

Court possessed substantial discretion in evaluating the amendment request, and 

its decision to grant the request is entitled to "considerable deference" on appeal. 

Thornton v. McClatchy Newspapers, Inc., 26 1 F.3d 789,799 (9th Cir. 200 1).


Unless the Court has "a definite and firm conviction that the district court 

committed a clear error of judgment," it should not disturb the District Court's 

discretionary decision to permit the amendment. Solomon v. North Am. Life and 

Casualty Ins. Co., 15 1 F.3d 1 132, 1 138-39 (9" Cir. 1998) (quotation marks and 

citation omitted). 

The District Court issued a thoughtful, published order discussing each 

factor relevant to the Rule 15(a) analysis. (ER 2, pp. 16-27.) The District Court 

concluded that Dr. Corbett and the District were entitled to leave to amend their 

answer to assert qualified irnmunity. Faman's objections to the District Court's 

decision are meritless, as we show directly below. 

a. No Bad Faith Existed 

First, Dr. Corbett and the District did not move to amend their answer in bad 

faith. As they explained, and as the District Court found, the District Court's 

unexpected ruling on May 1,2009 prompted their motion to amend. Up until the 

May 1 ruling, Defendants had understood Plaintiffs claim to be one alleging an 

ongoing policy or practice of disapproving of, and exhibiting hostility toward, 

Christianity in the curricular instruction provided in a lengthy AP course. Farnan 

had not claimed that a singular statement or statements made by Dr. Corbett had 

independently violated the Establishment Clause, and, in fact, the one incidental


remark that the District Court found violative of the First Amendment - the Peloza 

remark - had not even been identified in Farnan's FAC. The District Court's 

ruling was unpredicted. (See ER 2, pp.8-9.) Soon after receiving it, Defendants 

determined that Dr. Corbett was entitled to qualified immunity, as they were aware 

of no law clearly establishing that such a single, incidental remark during a lecture 

could violate the Establishment Clause. Defendants' only motive in moving to 

amend Dr. Corbett's answer was to ensure that they could present a significant, 

meritorious defense to which Dr. Corbett was legally entitled in light of the 

District Court's constitutional analysis. 

Farnan, however, makes the novel and utterly unconvincing argument that 

Dr. Corbett and the District's motion to amend was made in "bad faith" because 

they wanted Dr. Corbett to avoid being held individually liable for Farnan's 

attorneys' fees. This argument amounts to nothing more than a contention that an 

effort to raise a meritorious defense is a "bad faith" act simply because it could 

prevent Plaintiff from recovering something that he is not legally entitled to 

recover in the first place. An important and key purpose of the qualified immunity 

defense is to protect individual public officials from being saddled with monetary 

judgments when any constitutionally-deficient conduct was not clearly established 

nor readily apparent. A public official does not exercise "bad faith" merely by

aising a defense that furthers such an important purpose and that may afford him 

a protection recognized by law. Indeed, if Farnan's argument were correct, a 

defendant in a Section 1983 action could never move to amend her answer under 

Rule 15(a) to assert qualified immunity, as such an amendment always involves an 

effort to protect individual public officers from liability and exposure to monetary 

awards9 


Further, Farnan offers no evidence, and none exists, suggesting that 

Defendants were somehow trying to prolong the litigation, engaging in dilatory 

tactics, or otherwise acting with improper motives. As discussed below, Dr. 

Corbett and the District moved quickly and submitted their motion to amend 

within a few weeks of the May 1,2009 ruling that prompted the motion. See 

Owens, 244 F.3d at 7 12 (no bad faith where defendant offered plausible 

In addition, Plaintiffs argument attempting to ascribe bad faith motives to 

availing oneself of a legally-recognized immunity from damages contradicts his 

assertion that raising the defense had no value to Defendants. Obviously, 

obtaining immunity fiom a damages award, including a fee award, was 

considerably valuable to Dr. Corbett. And as with his waiver argument, Plaintiff 

again miscontrues the purposes of the qualified immunity doctrine and ignores that 

qualified immunity can provide individual defendants an important defense to 

monetary liability. Farnan cites Castaldo v. Stone, 192 F. Supp.2d 1124 (D. Colo. 

200 1) and some other cases that discuss the potential benefits of raising qualified 

immunity early in the litigation when possible, but as previously discussed, 

caselaw also recognizes the importance of qualified immunity as an ultimate 

defense to liability and the prudence in many cases of adjudicating the issue only 

after the factual record has been developed.

explanation of delay and acted promptly after learning of applicability of 

affirmative defense).'' Accordingly, Plaintiffs "bad faith" argument should be 

rejected. 


b. Defendants Did Not Unduly Delay in Moving to 

Amend 

Farnan asserts that Dr. Corbett "knew all of the facts and theories" related to 

the qualified immunity defense throughout the litigation and before the District 

Court's May 1,2009 ruling, but that assertion is incorrect. The precise nature of 

the constitutional claim at issue was not clear from the FAC, and while Defendants 

sought clarification during discovery, they understood Plaintiff to be alleging that 

Dr. Corbett and the District had engaged in an ongoing policy or practice of 

hostility to religion. The District Court's May 1,2009 order finding a single 

comment unlawful was unexpected and, as discussed, prompted Defendants to 

seek a ruling on qualified immunity. Dr. Corbett and the District moved to amend 

their answer and present the qualified immunity issue shortly after the May 1, 

lo Another pertinent factor in the Rule 15(a) analysis is whether the party seeking 

to amend the pleading had previously been granted leave to amend. See Foman v. 

Davis, 37 1 U.S. 178,182 (1962); Waldrip, 548 F.3d at 732. Although Plaintiff 

does not discuss that factor, it also supports the District Court's conclusion that 

amendment was permissible and that good faith existed, as the District and Dr. 

Corbett had not previously sought leave to amend their answer.


2009 ruling. These facts do not demonstrate undue delay; in fact, the District 

Court found, under the stricter "good cause" standard applicable to motions to 

amend a Rule 16(b) scheduling order, that Defendants had exercised due diligence 

in raising qualified immunity. (ER 2, p.9; see also ER 2, p. 17.) While undue 

delay alone would, in any event, be insufficient to defeat Rule 15(a)'s liberal 

policy in favor of granting leave to amend, no undue delay occurred. See Owens, 

244 F.3d at 712-13. 

c. Motion to Amend Was Not Futile 

Farnan appears to argue that Dr. Corbett's motion to amend his answer was 

"futile" because it did not prevent Defendants from having to litigate the case 

through summary judgment. This argument lacks merit. First, as previously 

discussed, besides occasionally allowing a defendant to prevail on a motion to 

dismiss, qualified immunity provides an important defense to individual liability - 

including liability for paying damages and plaintiffs fees - when a court or jury 

finds a constitutional violation. It is not "futile" to adjudicate qualified immunity 

at the summary judgment stage or a later stage simply because time had been 

expended litigating the case and conducting discovery. Individual liability is a 

significant issue in a Section 1983 case. Protecting Dr. Corbett from liability for 

damages and plaintiffs fees is obviously valuable to Dr. Corbett and furthers well-


established policies underlying the qualified immunity doctrine. (ER 2, pp. 19-20.) 

Second, the parties here unquestionably would have been required to 

develop their factual and legal theories through summary judgment, even if 

Defendants had attempted to litigate qualified immunity on a motion to dismiss. 

(ER 2 , p. 15. ) Farnan's FAC alleged a policy or practice of religious hostility that 

was novel and difficult to ascertain, and that remained difficult to ascertain even 

during discovery and summary judgment briefing. 

Finally, Dr. Corbett's motion to amend the answer was not futile, as it was 

made to ensure the adjudication of an important defense to liability; and, as 

discussed below, that defense is meritorious. Presenting a meritorious defense can 

hardly be described as an exercise in "futility." See generally Moore, 885 F.2d at 

538 (futility under Rule 15(a) refers to likely merit of proposed amendment); see 

also Foman, 37 1 U.S. at 182 (if underlying facts or circumstances relied upon in 

amendment might provide relief, party seeking amendment should be afforded 

opportunity to test claim on the merits). 

d. No Undue Prejudice Was Caused 

Farnan's contention that he was unduly prejudiced by the amendment to the 

answer is equally unavailing. First, because Union Intervenors had raised a


qualified immunity defense in their answer, Farnan was on notice from the outset 

of the litigation that qualified immunity was at issue in the case. He cannot 

legitimately claim surprise as a result of Defendants invoking a defense that had 

been specifically set forth in Union Intervenors' answer. 

In addition, as already discussed, discovery and cross-motions for summary 

judgment would have been required in any event. The District Court had denied 

an early motion to dismiss for failure to state a claim; plaintiffs' allegations were 

broad, novel, and involved an alleged policy or practice; and discovery and 

summary adjudication were necessary to identify the constitutional right at issue 

and to permit an analysis of the alleged Establishment Clause violation. (ER 2, 

pp. 15, 18.) As the District Court found, Farnan cannot show that he would have 

expended lesser effort or incurred substantially less fees if Defendants had 

attempted to litigate qualified immunity on a motion to dismiss - an attempt that 

would have failed anyway, given the novelty of the claim and the need to develop 

a factual record. See ER 2, p. 18; see also Owens, 244 F.3d at 712 (prejudice is not 

measured by litigation expenses incurred prior to motion to amend). 

Further, granting Dr. Corbett leave to amend his answer required no 

additional discovery whatsoever and had no meaningful effect on the efficiency of 

court proceedings. See ER 2, pp.10-11, n.8, p.15; Owens, 244 F.3d at 712.


Qualified immunity presented a legal issue that could be decided, and was 

decided, upon the same factual record that had been developed for summary 

judgment. The qualified immunity defense did not alter the fundamental nature of 

the litigation. Thus, this case is readily distinguishable fiom cases cited by Farnan 

that find prejudice when a pleading amendment would necessitate additional 

discovery and significantly expand the scope and nature of litigation. See 

Solomon, 15 1 F.3d at 1139 (no abuse of discretion to deny amendment to 

complaint that would have been futile, required reopening discovery, and delayed 

proceedings); Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387-88 (9th Cir. 1990) 

(no abuse of discretion to deny amendment to complaint that advanced different 

legal and factual theories, that would have required additional discovery and 

relitigation of issues, and that was inexplicably delayed)." Nor is this a situation 

where amending the answer had any effect on a trial date or trial preparation. 

" Farnan also cites Campbell v. Emory Clinic, 166 F.3d 1157 (1 1" Cir. 1999) in 

support of his undue prejudice argument, but the facts of that case too are highly 

distinguishable. There, motions for leave to amend were filed more than one year 

after discovery had ended, after dispositive motions had been filed, almost six 

years after the lawsuits had commenced, and after the plaintiff had already been 

afforded two occasions to amend the complaint. No new circumstances justified 

further amendment, and the amendment would have been futile and caused 

additional delay and expense. Id. at 1162. Under these facts, the Eleventh Circuit 

concluded that the District Court properly exercised its extensive discretion in 

denying the request to amend. None of those facts are present here.


The only potential "prejudice" Plaintiff articulates was the risk that a 

qualified immunity defense was meritorious and could have precluded, and 

ultimately did preclude, recovering an attorneys' fees award (and damages award) 

against Dr. Corbett. But raising a meritorious and legally-recognized defense to 

liability does not, by itself, cause "undue prejudice" to a plaintiff. ""Undue 

prejudice" under Rule 15(a) involves being unfairly deprived of an opportunity to 

adduce evidence or adequately and fairly litigate relevant legal issues. See 

Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463,468,469-70 

(D. N.J. 1990). Rule 15(a) does not provide sweeping protection to a party, like 

Farnan, who opposes a pleading amendment merely to dodge a bullet. As the 

District Court stated, "A grant of qualified immunity for an official who violated 

an individual's constitutional rights . . . does not constitute prejudice within the 

meaning of Rule 15(a)." (ER 2, p. 18, n. 16.) 

In sum, even assuming Dr. Corbett was obligated to amend his own answer 

to assert qualified immunity notwithstanding that Union Intervenors had raised the 

defense in their answer, the District Court exercised sound and thorough judgment 

in granting him leave to amend under the liberal amendment policies of Rule 

15(a). The District Court in no way abused its considerable discretion in granting 

leave under Rule 15(a), and its decision should be affirmed.


B. The Particular Constitutional Right Alleged by Plaintiff Was Not 

Clearly Established and Thus Dr. Corbett Is Entitled to Qualified 

Immunity 

In assessing a qualified immunity defense, a court typically conducts a two- 

step analysis. First, it decides whether plaintiff has established a violation of a 

constitutional right; and second, if plaintiff has established a constitutional 

violation, the court then proceeds to determine whether the particular right at issue 

was "clearly established at the time of defendant's conduct. See Pearson, 129 

S.Ct. at 81 5-16 (discussing and citing Saucier v. Katz, 533 U.S. 194,201 (2001)); 

see also Anderson v. Creighton, 483 U.S. 635, 640 (1987). 

The qualified immunity analysis should end at the first step here because, as 

previously discussed, Farnan has not shown that Dr. Corbett violated the 

Establishment Clause. Dr. Corbett's statements during his lectures in his AP Euro 

class were part of a legitimate secular program and satisfy all three elements of the 

Lemon test. But, even if Farnan could prove a violation of the Establishment 

Clause, Dr. Corbett is entitled to qualified immunity because the alleged right was 

far from clearly established. 

Under the clearly-established inquiry, a court must focus "on the precise 

circumstances of a particular case as well as the state of the law at the time of the 

alleged violation." Fogel, 53 1 F.3d at 833 (citation omitted). Plaintiff has the


burden to demonstrate that the constitutional right at issue was clearly established 

at the time of defendant's alleged conduct (see DiRuzza, 206 F.3d at 13 13), and he 

may not rely on broad general propositions about what the Establishment Clause 

proscribes. Brosseau, 543 U.S. at 198; Saucier, 533 U.S. at 201; Anderson, 483 

U.S. at 640. The inquiry is fact-intensive, and requires determining whether the 

right was clearly established in the specific context presented by the case at hand. 

James, 606 F.3d at 652. 

Further, Dr. Corbett can prevail on a qualified immunity defense if he can 

show that the alleged constitutional deficiency would not necessarily have been 

apparent to all objectively reasonable officials. Fogel, 53 1 F.3d at 834; see also 

Brosseau, 543 U.S. at 198 (qualified immunity shields official "when she makes a 

decision that, even if constitutionally deficient, reasonably misapprehends the law 

governing the circumstances she confronted"). Qualified immunity protects public 

officials who make reasonable mistakes. Bias v. Moynihan, 508 F.3d 12 12, 1220 

(9th Cir. 2007) (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9" 

Cir. 2006)). "As the qualified immunity defense has evolved, it provides ample 

protection to all but the plainly incompetent or those who knowingly violate the 

law." Malley v. Briggs, 475 U.S. 335,34 1 (1986). 

Under these well-established principles, the District Court was correct in


finding that Dr. Corbett is entitled to qualified immunity. Farnan contends that the 

law in 2007 was clearly established that public school teachers must act "neutral" 

toward religion, but this broad assertion of neutrality fails to address the specific 

facts of this case or show that caselaw amply delineated how a high school teacher 

might run afoul of the Establishment Clause when discussing with students the 

role of religion in history or, in response to a student query, recounting a personal 

story. While Plaintiff need not locate prior cases with identical or highly similar 

material facts, he must show that clearly established law identified the legal 

contours of the right with sufficient particularity so as to provide Dr. Corbett with 

fair warning of the constitutional limits of his conduct; plaintiff must show that the 

unconstitutionality of the Peloza comment would have been readily apparent to all 

reasonable teachers. See Fogel, 53 1 F.3d at 834; see also James, 606 F.3d at 652. 

Farnan cannot make this showing. 

The District Court recognized that a particularized inquiry was required and 

asked whether it would have been readily apparent to reasonable teachers in Dr. 

Corbett's position, teaching a year-long course in AP Euro, that making the Peloza 

comment would violate the First Amendment. (ER 2, p.3 1 .) The District Court 

correctly concluded that the constitutionality of the statement would not have been 

clear. Qualified immunity requires "some parallel or comparable factual pattern


[in a prior case] to alert an officer that a series of actions would violate an existing 

constitutional right." Fogel, 53 1 F.3d at 833. But neither the parties nor the 

District Court were able to locate a comparable case. Relatively little caselaw 

exists regarding alleged "hostility" to religion in any situation. See American 

Family, 277 F.3d at 1 122 ("because 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, we have little guidance 

concerning what constitutes a primary effect of inhibiting religion"). And 

critically, no case appears to address alleged "hostility" in a statement or 

statements made by a school teacher during course lectures. 

Further, Establishment Clause cases are notoriously context-dependent and 

complex, and courts frequently discuss that no fixed or categorical rules help 

guide the detailed contextual inquiry required under the Establishment Clause. 

See, e.g., McCreary, 545 U.S. at 859 n.lO, 867; Lynch, 465 U.S. at 678-79; 

Kreisner, 1 F.3d at 780; Grove, 753 F.2d at 1538 (Canby, J., concurring). Indeed, 

the same government action can yield different results, depending on context. For 

example, publicly displaying the Ten Commandments may pass the Lemon test in 

some instances but may fail it in other instances. Compare McCreary, 545 U.S. at 

867-74 (invalidating display), with Van Orden v. Perry, 545 U.S. 677 (2005)


(upholding display). In some cases, a school does not necessarily violate the 

Establishment Clause when it allows a teacher to select Christian music and 

religious sites for choir performances (see Bauchman v. West High Schl., 132 F.d 

542 (10" Cir. 1997); in other cases, a school can legitimately prohibit the 

performance of religious music to avoid a conflict with the Establishment Clause 

(see Nurre, 580 F.3d at 1098). 

Not only was Establishment Clause jurisprudence complex and highly 

contextual when Dr. Corbett was teaching his AP course to Farnan; but, to the 

extent the law set forth standards relevant to a teacher in Dr. Corbett's particular 

shoes, it recognized that teachers may discuss religion as part of a secular program 

and may present instructional materials and lectures that could be deemed 

offensive by certain religious persons. See Brown, 27 F.3d at 1379-83; Grove, 753 

F.2d at 1534-35; Fleischfresser, 15 F.3d at 686-90; see also Smith v. Board of 

Schl. Commissioners of Mobile County, 827 F.2d 684,692 (1 lth Cir. 1987) 

(endeavoring to instill in students "independent thought, tolerance of diverse 

views, self-respect, maturity, self-reliance and logical decision-making" 

constitutes "entirely appropriate secular effect" under Lemon); accord Epperson, 

393 U.S. at 107 (schools have no interest in protecting religions from views that 

they deem distasteful).


The law also recognized that considerable deference must be paid to schools 

and teachers in curricular matters, and that an Establishment Clause violation can 

only be found when a school or teacher acts with a clearly and predominantly 

religious (or anti-religious) purpose. See Edwards, 482 U.S. at 605; see also 

Grove, 753 F.2d at 1533 ("Judicial supervision of public education is limited to 

the resolution of conflicts that clearly involve constitutional values.") (citations 

omitted). In addition, binding law established that a state actor may make 

statements containing hostility towards religious views without violating the 

Establishment Clause, as long as - as was the case here - any hostility was 

secondary, and not the predominant purpose or primary effect of the statements. 

American Family, 277 F.3d at 1122. Given this state of the law, academic 

freedom principles, and the absence of cases involving even remotely similar facts, 

a reasonable AP history teacher could have thought that the statements at issue 

were lawful. Thus, Dr. Corbett is entitled to qualified immunity, even assuming 

the Peloza comment (or other allegedly anti-religious statements) violated the First 

Amendment. l2 

l2 Farnan contends that Dr. Corbett is not entitled to qualified immunity either 

with regard to the Peloza comment or, evidently, with regard to the series of 

statements that Farnan believes created "an unconstitutionally hostile 

environment." Plaintiffs Opening Br., p.60. As previously discussed, Dr. Corbett 

did not violate the Establishment Clause at any point. But even assuming Plaintiff

Judicial treatment of qualified immunity in the Fourth Amendment context 

is instructive. A plaintiff cannot defeat qualified immunity merely by claiming 

that an officer would have known that the right to be free from unreasonable 

searches or seizures or the right to be free from the use of excessive force was 

"clearly established." Rather, in each case, a court will carefully analyze the facts 

of the particular case and the circumstances confronting the defendant at the time, 

and will determine whether the right was clearly established in the precise factual 

context at issue, such that it would have been clear to all reasonable officers that 

the conduct violated the law. See, e.g., Safford Unzjied Schl. Dist. No. 1 v. 

Redding, 129 S.Ct. 2633,2643-44 (2009); Brosseau, 543 U.S. at 198-201; Bias, 

508 F.3d at 1220-2 1. The Ninth Circuit has applied this particularized qualified 

immunity inquiry in the First Amendment context as well (see Fogel, 53 1 F.3d at 

833-34), which is especially apt in light of the highly contextual analysis that must 

be conducted to determine if the Establishment Clause was violated in the first 

place. 


Farnan and his amicus rely on conclusory statements and broad 

were correct that multiple statements violated the Establishment Clause or 

somehow created "an unconstitutionally hostile environment," Dr. Corbett would 

still be entitled to qualified immunity, as no law existed to clearly establish such a 

violation, whether the statements are considered individually or cumulatively.


generalizations of the right at issue. Such reliance is improper and unavailing.I3 

Moreover, his assertion that no reasonable teacher could have found the Peloza 

remark (or other remarks) lawful contradicts his request for declaratory relief, 

wherein he contends that declaratory relief is necessary to provide teachers and 

students "a clear ruling that the 'hostility' doctrine applies in the public school 

setting." (Plaintifrs Opening Br., p.65.) If the constitutional violation he alleges 

had been so clear, there would be no need for the "clear ruling" that he seeks 

through a declaratory judgment. This case is, in fact, novel; and Dr. Corbett had 

not been traveling in well-charted legal territory when Farnan began 

surreptitiously taping his lectures. Indeed, Plaintiff3 counsel issued a press 

release shortly afier the District Court's May 1,2009 order that described the order 

as "a first-of-its-kind decision" and "constitutionally unique." (SER 1 17, p. 10.) It 

was a unique, "first-of-its-kind decision," and its novelty amply demonstrates that 

l3 In support of Plaintiffs objection to qualified immunity, amicus The National 

Legal Foundation cites a guide published by the First Amendment Center in 

Tennessee, which was endorsed by the National Education Association, and which 

gives very general advice about religion in public schools. NLF Br., p. 15. The 

guide's statement that schools should educate about religion without promoting or 

denigrating religion (see Id.) is a broad and general guideline that provides little if 

any help in analyzing what such guideline might mean in a particular factual 

situation and what a reasonable teacher would clearly understand as lawful in that 

situation. Moreover, the guide was published in 2008, after Farnan took Dr. 

Corbett's AP Euro class. The guide is of no consequence to the qualified 

immunity issue presented here.


Dr. Corbett is entitled to qualified immunity. 

111. The Denial of Declaratory Relief Should Be Affirmed 

A. Plaintiff)§ Claim for Declaratory Relief Is Moot 

Farnan challenges the District Court's denial of declaratory relief, but his 

request for declaratory relief is moot. 

It is well-established that claims for declaratory (and injunctive) relief 

become moot once a plaintiff loses a legally cognizable interest in the relief 

sought. In Craig v. Boren, 429 U.S. 190, 192 (1976), for example, a male sued for 

declaratory and injunctive relief against enforcement of a statute that prohibited 

selling 3.2% beer to males under the age of 2 1 and to females under the age of 18. 

The Supreme Court concluded that the male's claims for declaratory and 

injunctive relief were moot on appeal, because he had turned 2 1 by the time the 

Supreme Court heard the case. Id. The Ninth Circuit has specifically held, in the 

context of a First Amendment case, that "once a student graduates, he no longer 

has a live case or controversy justifying declaratory and injunctive relief against a 

school's action or policy." Cole, 228 F.3d at 1098 (citation omitted). In Cole, this 

Court specifically rejected the argument that an exception to the mootness doctrine 

should apply when a plaintiff in a First Amendment case against school officials 

has graduated from high school. Id. at 1098-99.

The District Court denied Farnan's request for injunctive relief on the merits 

and on mootness grounds; the District Court found the request for an injunction 

moot because Farnan was no longer in Dr. Corbett's class and he was not likely to 

take another class with Dr. Corbett. (ER 3, pp.46-54.) The District Court also 

raised concerns that Farnan's claim for declaratory relief was moot as well, but it 

nevertheless proceeded to deny that claim on the merits. (ER 3, pp.54-56.) 

Regardless of whether Faman's request for declaratory relief was moot 

when the District Court considered it, the request is certainly moot now. Farnan, 

who was a sophomore in the 2007-08 school year, has presumably just graduated 

from high school. (See ER 19, p.35 1 .) No reasonable probability exists that he 

could again be a student in Dr. Corbett's class. Dr. Corbett could no longer have 

the opportunity to teach Farnan or impact his constitutional rights in any way. 

Therefore, Farnan no longer has standing to pursue a claim for declaratory relief, 

and his request for declaratory relief should be denied on this ground alone. See 

Cole, 228 F.3d at 1098-99; Bauchman, 132 F.3d at 548; see also Nurre, 580 F.3d 

at 1099 (holding, in Establishment Clause case alleging hostility toward religion, 

that plaintiffs "equitable claims are moot now that she has graduated from high 

school); Sample v. Johnson, 771 F.2d 1335, 1339-43 (9" Cir. 1985). 

/I/ 



B. Even If Not Moot, The District Court Correctly Denied 

Declaratory Relief 

The District Court did not abuse its discretion in denying declaratory relief, 

even assuming Farnan's declaratory relief request is not moot and that he has 

proved a constitutional violation. As discussed previously, Farnan is wrong in 

contending that this Court should review the denial of declaratory relief de novo; 

the Supreme Court has indicated that appellate courts should review declaratory 

judgment decisions under the abuse of discretion standard. Wilton, 5 15 U.S. at 

289-90; see also Government Employees, 133 F.3d at 1223. The District Court 

concluded that a declaratory judgment would serve no useful purpose because 

Farnan would not take a class from Dr. Corbett in the future and because the Court 

had already formalized its constitutional findings in a published order. (ER 3, 

p.55.) Further, Farnan's request for a declaration that Defendants' "policy or 

practice of acting with hostility toward religion" was not meritorious because no 

such "policy or practice" was found. (ER 3, p.54 n.7.) 

Plaintiff places heavy reliance on Bilbrey by Bilbrey v. Brown, 738 F.2d 

1462 (9th Cir. 1984), but that case, which employs a standard of review contrary to 

Wilton, is distinguishable. There, plaintiffs sought a declaration that a district's 

written, generally-applicable guidelines regarding student searches were


unconstitutional, and plaintiffs had pursued a class action on behalf of current and 

future students. The trial court found the searches at issue unconstitutional, but it 

did not make a formal ruling to that effect. Id. at 1470. Declaratory relief was 

therefore appropriate to formalize that ruling and to provide relief to the class of 

current and future students on whose behalf the claim was brought. Id. at 147 1. 

Farnan, by contrast, did not pursue his claim on behalf of a class, and no persons 

are before the Court who stand to benefit from equitable relief. Given this, and 

given the published order, the District Court did not abuse its discretion in 

concluding that declaratory relief was neither useful nor necessary. 

CONCLUSION 

For the foregoing reasons, the District Court's decisions should be affirmed 

with the exception of the District Court's erroneous conclusion that the Peloza 

comment violated the Establishment Clause. 

Dated: July 26,20 10 CALIFORNIA TEACHERS ASSOCIATION 

MICHAEL D. HERSH 

LAURA P. JURAN 

EMMA LEHENY 

S/ Michael D. Hersh 

Attorneys for Intervenors - Appellees, California 

Teachers Association and Capistrano Unzjied 

Education Association

CERTIFICATE OF COMPLIANCE 

I certify that the foregoing brief is in compliance with Federal Appellate 

Rule of Procedure 28.l(e)(2) as follows: 

1. The type-volume limitations are met to which the text of this brief 

contains 15,88 1 words as counted by Corel Wordperfect, the program used to 

generate this brief. 

2. The typeface and the type style requirements of are met using Corel 

Wordperfect's proportionally spaced typeface in fourteen-point Times New 

Roman. 


Dated: July 26,2010 CALIFORNIA TEACHERS ASSOCIATION 

MICHAEL D. HERSH 

LAURA P. JURAN 

EMMA LEHENY 

S/ Michael D. Hersh 

Attorneys for Intervenors - Appellees, California 

Teachers Association and Capistrano UnzJied 

Education Association


CERTIFICATE OF SERVICE 

I am employed with the California Teachers Association - Legal Services 

Department in the County of Los Angeles, State of California. I am over the age 

of 18 years and not a party to the within action. My business address is 1 1745 

East Telegraph Road, Santa Fe Springs, California 90670. 

On July 26,2010,I served the foregoing document described as 

INTERVENORS - APPELLEES' SECOND BRIEF ON CROSS APPEAL 

AND RESPONSE TO APPELLANT'S FIRST BRIEF ON CROSS APPEAL, 

on the interested parties in this action. 

Via ELECTRONIC CASE FILING, by which the listed counsel below 

will automatically receive e-mail notices with links to true and correct 

copies of said document(s): 

Executed on July 26,20 10, at Santa Fe Springs, California 

1 (Federal Court) I declare that I am employed in the office of a member of 

the bar of this court at whose direction the service was made. 

slFrankie Medina 

Email: fmedina@cta.org

CTA's 2nd Brief & Response to Plaintiff's 1st Brief - National Center ...

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