C.F. Ex Rel Farnan v. Capistrano Unified School District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C.F., by and through his parents 

TERESA FARNAN and BILL FARNAN,

Plaintiff-Appellant,

v.

CAPISTRANO UNIFIED SCHOOL

DISTRICT; DR. JAMES CORBETT, No. 09-56689

individually and in his official

capacity as an employee of  D.C. No.

8:07-cv-01434-

Capistrano Unified School District,

Defendants-Appellees, JVS-AN

and

CALIFORNIA TEACHERS

ASSOCIATION/NEA; CAPISTRANO

UNIFIED EDUCATION ASSOCIATION,

Intervenors-Appellees.



11257

11258 C.F. v. CAPISTRANO USD

C.F., by and through his parents 

TERESA FARNAN and BILL FARNAN,

Plaintiff-Appellee,

v.

DR. JAMES CORBETT, individually

and in his official capacity as an

employee of Capistrano Unified

No. 09-56690

School District,

Defendant-Appellant, D.C. No.

and  8:07-cv-01434-JVS-

AN

CAPISTRANO UNIFIED SCHOOL

OPINION

DISTRICT,

Defendant,

and

CALIFORNIA TEACHERS

ASSOCIATION/NEA; CAPISTRANO

UNIFIED EDUCATION ASSOCIATION,

Intervenors.



Appeals from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted

February 11, 2011—Pasadena, California

Filed August 19, 2011

C.F. v. CAPISTRANO USD 11259

Before: A. Wallace Tashima and Raymond C. Fisher,

Circuit Judges, and Mark L. Wolf, Chief District Judge.*

Opinion by Judge Fisher

*The Honorable Mark L. Wolf, Chief United States District Judge for

the District of Massachusetts, sitting by designation.

11262 C.F. v. CAPISTRANO USD

COUNSEL

Robert H. Tyler and Jennifer L. Monk (argued), Advocates

for Faith and Freedom, Murrieta, California, for the plaintiff-

appellant-cross-appellee.

Erwin Chemerinsky (argued), U.C. Irvine School of Law,

Irvine, California; J. Craig Johnson and Christian A. Hickers-

berger, Tenner Johnson LLP, Riverside, California, for the

defendants-appellees-cross-appellants.

Michael D. Hersh, California Teachers Association, Santa Fe

Springs, California; Laura P. Juran and Emmy Leheny, Cali-

fornia Teachers Association, Burlingame, California, for the

intervenors-appellees.

C.F. v. CAPISTRANO USD 11263

OPINION

FISHER, Circuit Judge:

The First Amendment provides that “Congress shall make

no law respecting the establishment of religion, or prohibiting

the free exercise thereof.” U.S. Const. amend. I. The govern-

ment runs afoul of the Establishment Clause through dispar-

agement as well as endorsement of religion. See Catholic

League for Religious & Civil Rights v. City & Cnty. of S.F.,

624 F.3d 1043, 1060 (9th Cir. 2010) (en banc) (Silverman, J.,

concurring); id. at 1053-54 (Kleinfeld, J., dissenting); see also

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 532 (1993). In this case, a former public high

school student alleges that his history teacher violated his

rights under the Establishment Clause by making comments

during class that were hostile to religion in general, and to

Christianity in particular. Mindful that there has never been

any prior reported case holding that a teacher violated the

Constitution under comparable circumstances, we affirm the

district court’s conclusion that the teacher is entitled to quali-

fied immunity. Because it is readily apparent that the law was

not clearly established at the time of the events in question,

and because we may resolve the appeal on that basis alone,

we decline to pass upon the constitutionality of the teacher’s

challenged statements. See Pearson v. Callahan, 555 U.S.

223, 129 S. Ct. 808, 815-18 (2009).

BACKGROUND1

In fall 2007, Chad Farnan was a 15-year-old sophomore

enrolled in Dr. James Corbett’s Advanced Placement Euro-

pean History (AP Euro) class at Capistrano Valley High

School. Corbett has taught in the Capistrano Unified School

District (District) for more than 20 years, and has taught AP

Euro for more than 16 years. He is presently the only teacher

1

The facts are undisputed unless otherwise noted.

11264 C.F. v. CAPISTRANO USD

who teaches AP Euro at Capistrano Valley High School. Cor-

bett is a Christian who regularly prays and attends church ser-

vices. Farnan is also a Christian, and believes in creationism.

He was offended by comments Corbett made during class that

Farnan characterizes as “derogatory, disparaging, and belit-

tling regarding religion and Christianity in particular.” Neither

Farnan nor his parents ever discussed this concern with Cor-

bett or any other school official. Rather, before completing

the first semester of AP Euro, Farnan withdrew from the class

and filed this lawsuit under 42 U.S.C. § 1983 alleging a viola-

tion of his First Amendment rights under the Establishment

Clause. Farnan has since graduated from high school and

begun college.

AP Euro is a college-level course for which students can

receive college credit if they pass the AP exam administered

by the College Board. The AP Euro standards are equivalent

to a University of California course. The College Board dic-

tates that AP Euro cover a number of topics touching on reli-

gion, including: “[c]hanges in religious thought and

institutions,” “[s]ecularization of learning and culture,”

“[s]cientific and technological developments and their conse-

quences,” and “[c]hanges in elite and popular culture, such as

new attitudes toward religion, the family, work, and ritual.”

The College Board’s course description explains that these

“cultural, economic, political, and social developments . . .

played a fundamental role in shaping the world in which [we]

live,” and accordingly provide “context for understanding the

development of contemporary institutions, the role of continu-

ity and change in present-day society and politics, and the

evolution of current forms of artistic expression and intellec-

tual discourse.”

In summer 2007, Corbett sent home a letter to incoming

students who had signed up for his AP Euro class, including

Farnan. In the letter, Corbett explained how the class would

operate: “Most days we will spend a few minutes (sometimes

more) at the beginning of class discussing current events . . . .

C.F. v. CAPISTRANO USD 11265

Discussion will be quite provocative and focus on the ‘les-

sons’ of history. My goal is to have you go home with some-

thing that will provoke discussion with your parents.” Corbett

assured students that they “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.” Farnan received and read the letter.

Corbett describes his approach as seeking “to teach stu-

dents to be able to identify central questions and construct

logical thesis statements,” to “view a variety of historical

materials, both analytically and critically, to weigh historical

evidence, and to arrive at conclusions based on informed

judgment.” His “pedagogy is intentionally provocative in

order to elicit responses from his students and to help them

develop critical thinking skills.” He encourages students to

“question and try to come up with a[n] analysis of what is true

[and] is not true, from [a] historical perspective.” Corbett told

his AP Euro students that, “it is completely safe, in here any-

way, 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?’ . . . I mean, there’s almost always

more than one point of view on stuff.”

District Judge Selna’s thoughtful decision, C.F. v. Capis-

trano Unified Sch. Dist., 615 F. Supp. 2d 1137 (C.D. Cal.

2009) (“Farnan I”), describes in detail the statements made

by Corbett that Farnan takes issue with, and we quote from a

selection of them here.2 Farnan challenges, for example, Cor-

2

These quotations come from transcripts of audio recordings Farnan

made during class without Corbett’s knowledge. We recognize that Cor-

bett alleges some of the recordings and transcripts have been edited and

the statements have been taken out of the context of the classes in which

they occurred. See Farnan I, 615 F. Supp. 2d at 1141 n.3.

Corbett also suggests that Farnan violated California Education Code

section 51512 by recording his lectures without written permission.

Because Corbett does not argue that this affects our analysis of this case,

we do not address that allegation.

11266 C.F. v. CAPISTRANO USD

bett’s commentary on how religion influenced serfs’ reactions

to Joseph II’s attempts to spearhead reform in the Holy

Roman Empire:

[H]ere is Joseph II. He’s trying, for example, to end

serfdom. Serfdom in which the peasants, the Ser[f]

class, on these estates [were], literally, property.

They had no rights to speak of at all. He doesn’t just

go that far. I mean, he tries to get them land. He . . .

really has the interest of this class of people at heart,

and the — the reforms that he makes really are going

to make the lives of these peasants massively better.

So why do the peasants oppose him? . . . Because he

also tried to reform religion, and the peasants love

their church.

It’s the same thing here. You know, you go down to

Georgia, Alabama, Mississippi, all these states that

are as red as they could possibly be, as right-wing

Republican as you could possibly be. [But] [w]hen

you first present these people with the economic pol-

icies of the Democratic party, they are all Demo-

crats. Virtually all the social programs they like. . . .

How do you get the peasants to oppose something

that is in their best interest? Religion. You have to

have something that is irrational to counter that ratio-

nal approach. No problem. . . . [W]hen you put on

your Jesus glasses, you can’t see the truth. Um,

Joseph made these reforms with no consultation,

with no consent. (Inaudible) in the state.

Now, the father of modern conservatism is

[Edmund] Burke. He’s in this chapter. And

[Edmund] Burke made a very good point here that

Joseph II should have paid attention to. You cannot

overturn long-held traditions overnight without caus-

ing chaos, you know. You need to approach it by

C.F. v. CAPISTRANO USD 11267

getting people some education, and you need to

move it in a way that gets their support before you

do anything. . . .

Farnan also takes issue with statements Corbett made about

the relationship between religion and the Scientific Revolu-

tion:

[B]y 1543 we got religious wars going on. These are

the religious wars that Charles V was involved with

with the German princes, right? And those wars are

going to end with the peace of Augsburg in 1555.

Okay. (Inaudible). [O]kay. So we’re talking about

the beginnings here, starting at a time of real reli-

gious upheaval. . . . But what was the consequence?

You know the consequence is that mankind becomes

— because of the seismic revolution — a kind of cog

in a cosmic clock instead of God’s most important

creation.

Um, see, people believed before the scientific revo-

lution that the Bible was literal and that anything that

happened, God did it. They didn’t understand. They

didn’t have the scientific method. They didn’t

approach truth. The explanation to everything liter-

ally was that God did it. And the ultimate authority

. . . was the Bible. . . .

[T]hink how humbling it’s going to be, you know,

when all these people who have been talking about

Adam and Eve and creation and all of this stuff for

all that time when eventually something happens,

and they find out that there are people on another

planet, six billion light years away, who don’t look

like us, worshipping huge geckos. (Students laugh-

ing.)

It’s — I mean, it’s profoundly disturbing (inaudible).

You have (inaudible) people who are deep believers

11268 C.F. v. CAPISTRANO USD

and find out that maybe we’re not so important.

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 non-

sense. I mean, that’s what you call deductive reason-

ing, you know. And you hear it all the time with

people who say, “Well, if all this stuff that makes up

the universe is here, something must have created

it.” Faulty logic. Very faulty logic. What’s another

explanation? . . .

Yeah. The answer is — the other possibility is, it’s

always been here. . . . Your call as to which one of

those notions is scientific and which one is magic.

(Inaudible) the spaghetti monster behind the moon.

I mean, all I’m saying is that, you know, the people

who want to make the argument that God did it,

there is as much evidence that God did it as there is

that there is a giant spaghetti monster living behind

the moon who did it. . . .3

Because I can say to you, you know at least one of

the laws of physics: Matter, can matter be — [Stu-

dent: Created or destroyed.] Therefore, no creation,

unless you invoke magic. Science doesn’t invoke

magic. If we can’t explain something, we do not

uphold that position. It’s not, ooh, then magic. That’s

not the way we work. If we can’t find a rational

explanation, we go looking for other rational expla-

nations. We do not invoke a supernatural every time

we get stymied.

3

Intervenors note that “spaghetti monster” is a term coined by evolution

proponents who criticized the logic of teaching “creation science” in pub-

lic schools. See, e.g., Cornelia Dean, Helping Out Darwin’s Cause With

a Little Pointed Humor, N.Y. Times, Dec. 27, 2005, available at http://

www.nytimes.com/2005/12/27/science/27evol.html.

C.F. v. CAPISTRANO USD 11269

It’s okay for religious people to, you know, or a

magician (inaudible). There may be a distinction, but

there is no difference. What was it that Mark Twain

said? “Religion was invented when the first con man

met the first [fool].”

Anyway, um, he argued that all movement — no

movement without a mover in a natural state, all

objects at rest. . . . [T]his is deductive logic. It

assumes a fact not supported by evidence and then

makes logical assumptions based on that fact. Um,

but, you know, we use inductive reasoning which

requires observation and experimentation. . . .

What happened in 1450 that changed science for-

ever? . . . Remember what I said about those books

that were handwritten . . . ? See, this is one of the

differences between the real scientists (inaudible)

creationism and evolution, you know. What do evo-

lutionary scientists do every day? They try and dis-

prove the theory of evolution. Every time we find

something new, we have to see if that fits with the

central organizing theory of biology, which is evolu-

tion.

The first time a scientist finds something that can’t

be explained, you know, in evolution, it may not be

thrown out, but it is undermined. And, actually,

when they do the research, they’re not looking to

prove evolution. They’re looking to disprove it.

That’s what the moral hypothesis is. You try and dis-

prove it. And the more you try and disprove it and

the more you fail, the more you believe it.

Contrast that with creationists. They never try to dis-

prove creationism. They’re all running around trying

to prove it. That’s deduction. It’s not science. Scien-

tifically, it’s nonsense. In the case of the printing

11270 C.F. v. CAPISTRANO USD

press, the printing press gives us the opportunity to

share ideas. Scientists wrote . . . an essay of some

scientific theory that you found, and other people are

going to be able to read it. And they’ll be able to test

what you did and see if it’s true . . . .

Farnan also focuses on a statement Corbett made about a

lawsuit filed against him and the District nearly 20 years ago

by a fellow teacher, John Peloza, who had been directed by

the school not to teach creationism in his science class. The

suit was ultimately resolved in favor of Corbett and the Dis-

trict in an opinion by this court holding that requiring science

teachers to teach evolution does not violate the First Amend-

ment. See Peloza v. Capistrano Unified Sch. Dist., 37 F.3d

517, 521-22 (9th Cir. 1994) (per curiam). During class a stu-

dent asked Corbett about the controversy involving Peloza,

and Corbett said the following:

I was the adviser to the student newspaper. In his

classes, [Peloza] was not telling the kids the scien-

tific truth about evolution. He was hinting to kids in

his class that there’s another explanation, and he

invited kids to his home so they could hear the truth,

the Biblical truth about all this. And he came in at

lunch and had meetings at lunch with kids who

wanted to believe in creationism. And, anyway, my

editor wrote an editorial in which she inferred [sic]

that [Peloza] was not teaching science in his biology

classroom. Instead, he was teaching religion.

He sued me as the advisor to the paper for five mil-

lion, as a matter of fact. He also, on another issue,

sued several other members of the faculty here

because he claimed that he had the right under rules

of academic freedom, because he was a fully quali-

fied biology teacher, to teach biology any way he

saw fit as a qualified teacher. . . .

C.F. v. CAPISTRANO USD 11271

[T]he school district hired an attorney to defend us.

And at the first meeting, the school district’s attor-

ney, my attorney, said, “First thing we need you all

to do, we do not need to make any more public state-

ments about this until the lawsuit is over.” 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 John [Peloza] alone

to propagandize kids with this religious, supersti-

tious nonsense. . . . John wanted to talk about cre-

ation as a science and all that stuff, but you get

involved in that argument, you just lose because it’s

just nonsense. . . .

Based on these statements and others discussed in the dis-

trict court order, see Farnan I, 615 F. Supp. 2d at 1142-53,

Farnan filed suit under 42 U.S.C. §§ 1983 and 1988 alleging

that Corbett and the District violated the Establishment

Clause. He sought declaratory and injunctive relief and nomi-

nal damages. Corbett and the District answered the operative

first amended complaint in March 2008, but Corbett’s answer

made no mention of qualified immunity. The following

month, the district court granted the motion of the California

Teachers Association and Capistrano Unified Education

Association to intervene as defendants, and these intervenors

filed an answer raising Corbett’s entitlement to qualified

immunity as an affirmative defense.

The parties filed cross-motions for summary judgment on

the constitutionality of the challenged statements in March

2009. Without considering whether Corbett was entitled to

qualified immunity, the district court granted Farnan’s motion

for summary judgment as to the comment regarding John

Peloza’s lawsuit, but granted summary judgment to the defen-

dants as to all other challenged statements after concluding

that they did not violate the Establishment Clause. See id. The

district court denied Farnan’s request for injunctive and

declaratory relief. See C.F. v. Capistrano Unified Sch. Dist.,

11272 C.F. v. CAPISTRANO USD

647 F. Supp. 2d 1187, 1199 (C.D. Cal. 2009) (“Farnan II”).

Corbett subsequently moved to amend the scheduling order

and requested leave to file an amended answer asserting the

defense of qualified immunity. See C.F. v. Capistrano Unified

Sch. Dist., 656 F. Supp. 2d 1190, 1192 (C.D. Cal. 2009)

(“Farnan III”). The district court granted these motions and

ultimately held that, although the Peloza comment violated

the Establishment Clause, the law was not clearly established,

so Corbett was protected by qualified immunity. See id. at

1203-07.

The parties filed timely cross-appeals in October 2009. Far-

nan challenges the district court’s (1) rejection of his Estab-

lishment Clause challenge to all the statements except the

Peloza comment, (2) refusal to grant him declaratory relief,

(3) grant of leave to Corbett to file an amended answer, and

(4) grant of qualified immunity to Corbett. Corbett appeals the

grant of summary judgment to Farnan as to the unconstitu-

tionality of the Peloza comment. In accordance with the par-

ties’ stipulation, Farnan dismissed his appeal as to the District

and Corbett in his official capacity, so this appeal pertains

only to Farnan’s claims against Corbett in his individual

capacity.

DISCUSSION

I.

The district court had jurisdiction over Farnan’s § 1983

action under 28 U.S.C. §§ 1331 and 1343, and we have juris-

diction to hear the cross-appeals under 28 U.S.C. § 1291. We

review de novo both the grant of summary judgment and the

conclusion that a public employee is entitled to qualified

immunity. See Boyd v. Benton Cnty., 374 F.3d 773, 778 (9th

Cir. 2004); Peng v. Penghu, 335 F.3d 970, 973 (9th Cir.

2003). In evaluating whether summary judgment is appropri-

ate, we determine “whether the district court correctly applied

the substantive law” and whether, “view[ing] the evidence in

C.F. v. CAPISTRANO USD 11273

the light most favorable to the party against whom summary

judgment was granted,” “any genuine issue of material fact

exists.” Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir.

1987). Decisions involving pretrial scheduling orders under

Rule 16 and requests for leave to amend an answer are

reviewed for abuse of discretion. See Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001).

II.

[1] Farnan appeals the district court’s refusal to grant his

request for declaratory relief. We affirm because Farnan’s

graduation from high school mooted this claim. “Article III of

the Constitution requires that there be a live case or contro-

versy at the time that a federal court decides the case.” Burke

v. Barnes, 479 U.S. 361, 363 (1987). “It is well-settled that

once a student graduates, he no longer has a live case or con-

troversy justifying declaratory or injunctive relief against a

school’s action or policy.” Cole v. Oroville Union High Sch.

Dist., 228 F.3d 1092, 1098 (9th Cir. 2000); see also DeFunis

v. Odegaard, 416 U.S. 312, 316-19 (1974) (per curiam). Far-

nan concedes that his declaratory relief claim would be moot

under the general rule, but urges us to hold that his case falls

into the “capable of repetition, yet evading review” exception.

“That exception, however, is limited to extraordinary cases

in which (1) the duration of the challenged action is too short

to be fully litigated before it ceases, and (2) there is a reason-

able expectation that the plaintiff[ ] will be subjected to the

same action again.” Doe v. Madison Sch. Dist. No. 321, 177

F.3d 789, 798 (9th Cir. 1999) (en banc) (internal quotation

marks omitted); see also Davis v. FEC, 554 U.S. 724, 735

(2008) (“Th[e] exception applies where . . . there is a reason-

able expectation that the same complaining party will be sub-

ject to the same action again.”) (internal quotation marks

omitted). Because Farnan has graduated, there is no reason-

able probability that he will be subjected to the same action

again, and “just because this particular case did not reach the

11274 C.F. v. CAPISTRANO USD

Court until [after Farnan’s] graduation,” “it hardly follows

that the issue he raises will in the future evade review.”

DeFunis, 416 U.S. at 319; see also Cole, 228 F.3d at 1098-99;

Doe, 177 F.3d at 798-99.

Even though Farnan’s graduation mooted his claim for

declaratory relief, however, his damages claim remains via-

ble. See Cole, 228 F.3d at 1099. “[A] ‘live claim for [even]

nominal damages will prevent dismissal for mootness.’ ”

Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 425 (9th Cir.

2008) (quoting Bernhardt v. Cnty. of L.A., 279 F.3d 862, 871

(9th Cir. 2002)) (alterations in original). Accordingly, we pro-

ceed to the merits of the appeal.

III.

A.

Before we consider whether Corbett was entitled to quali-

fied immunity, we must address Farnan’s argument that the

district court erred by permitting Corbett to assert the defense

rather than holding that it was waived. Although the interve-

nors raised the defense on Corbett’s behalf in their answer,

Corbett did not assert the defense himself until after the dis-

trict court issued its decision on the constitutionality of the

challenged statements. The court then granted Corbett’s

motion to amend the scheduling order and granted him leave

to amend his answer to plead the defense of qualified immu-

nity. The district court did not abuse its discretion by permit-

ting these amendments.

[2] First, we consider whether the district court abused its

discretion in granting Corbett’s motion to amend the schedul-

ing order. “A schedule may be modified only for good cause

and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The

district court “is given broad discretion in supervising the pre-

trial phase of litigation, and its decisions regarding the preclu-

sive effect of a pretrial order . . . will not be disturbed unless

C.F. v. CAPISTRANO USD 11275

they evidence a clear abuse of discretion.” Johnson v. Mam-

moth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)

(omission in original) (internal quotation marks omitted); see

also Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir.

2007); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087

(9th Cir. 2002). “[T]he focus of the inquiry is upon the mov-

ing party’s reasons for seeking modification.” Johnson, 975

F.2d at 609.

[3] The district court concluded there was good cause to

permit the amendment because the gravamen of Farnan’s case

centered on allegations of a barrage of allegedly hostile

remarks, and thus the tenor of the case changed significantly

when the court decided on summary judgment that only a sin-

gle statement violated the Establishment Clause. See Farnan

III, 656 F. Supp. 2d at 1193. The district court did not abuse

its discretion in concluding that this event, rather than any bad

faith or dilatory purpose, motivated Corbett’s request, and that

Corbett thus did not unduly delay. See id. at 1198. We also

credit the district court’s determination that the amendment

“created no meaningful case management issues” and did not

“infringe[ ] on the efficient adjudication” of the litigation

because “[t]he qualified immunity determination is a question

of law . . . based on the factual record already developed.” Id.

at 1197. No additional discovery was necessary and no delay

ensued. See id. Indeed, in Graves v. City of Coeur D’Alene,

we saw fit to raise the issue of qualified immunity sua sponte

on appeal precisely because “[q]ualified immunity is an issue

of law and, to the extent that it depends on the factual record,

that record ha[d] [already] been fully developed.” 339 F.3d

828, 845-46 & n.23 (9th Cir. 2003), abrogated in part on

other grounds by Hiibel v. Sixth Judicial Dist. Court of Nev.,

Humboldt Cnty., 542 U.S. 177 (2004).

[4] We also appreciate that the prejudice to Corbett from

a failure to modify the order likely would be substantial.

Although Farnan sought only nominal damages, the attorney’s

fees and costs for which Corbett could be liable absent the

11276 C.F. v. CAPISTRANO USD

protection of qualified immunity undoubtedly would be con-

siderable after more than three years of litigation. See Farnan

III, 656 F. Supp. 2d at 1199 (discussing D’Aguanno v. Gal-

lagher, 50 F.3d 877, 881 (11th Cir. 1995)). In evaluating

whether Farnan was prejudiced, we note that he was put on

notice that qualified immunity was at issue when the interve-

nors raised the defense on Corbett’s behalf in their answer,

long before the parties filed their motions for summary judg-

ment.4 In addition, a plaintiff does not establish prejudice

even when the timely assertion of an affirmative defense

would have been dispositive had it been asserted at the outset

of the suit. See Owens, 244 F.3d at 713. In any event, the dis-

trict court noted that “Corbett would very likely not have suc-

ceeded on a qualified immunity defense early on,” so even if

he had raised the defense in his motion for summary judg-

ment, “the Court would have nevertheless considered the

issue of whether a constitutional violation occurred.” Farnan

III, 656 F. Supp. 2d at 1199. We therefore conclude that the

district court did not abuse its discretion under Rule 16 by

permitting the amendment to the scheduling order. See Cole-

man v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.

2000); Johnson, 975 F.2d at 607-08.

[5] The district court also did not abuse its discretion under

Rule 15 by allowing Corbett to amend his answer. Rule 15(a)

provides that “[t]he court should freely give leave [to amend]

when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This pol-

icy is ‘to be applied with extreme liberality.’ ” Eminence Cap-

ital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)

(quoting Owens, 244 F.3d at 712). “Absent prejudice, or a

strong showing of any of the remaining Foman [v. Davis, 371

U.S. 178 (1962)] factors, there exists a presumption under

Rule 15(a) in favor of granting leave to amend.” Id.5 Corbett

4

We do not decide that an intervenor may raise a defense on behalf of

another party, but mention the intervenors’ answer only in terms of notice

to Farnan of Corbett’s potential defense.

5

The Foman factors include “[1] undue delay, bad faith or dilatory

motive on the part of the movant, [2] repeated failure to cure deficiencies

C.F. v. CAPISTRANO USD 11277

had not previously amended his answer and the amendment

was not futile. Further, as we have explained, there was no

undue delay, bad faith, dilatory motive or undue prejudice to

Farnan. See Waldrip v. Hall, 548 F.3d 729, 732-33 (9th Cir.

2008); Owens, 244 F.3d at 712. The district court thus did not

abuse its discretion. We therefore turn to the merits of Cor-

bett’s qualified immunity defense.

B.

1.

The Establishment Clause applies “not only to official con-

donement of a particular religion or religious belief, but also

to official disapproval or hostility toward religion.” Am. Fam-

ily Ass’n v. City & Cnty. of S.F., 277 F.3d 1114, 1120-21 (9th

Cir. 2002); see also McCreary Cnty. v. ACLU of Ky., 545 U.S.

844, 860 (2005) (“[The Establishment Clause] mandates gov-

ernmental neutrality between . . . religion and nonreligion.”

(internal quotation marks omitted)). The Supreme Court has

long made clear, however, that “the First Amendment does

not permit the State to require that teaching and learning must

be tailored to the principles or prohibitions of any religious

sect or dogma.” Epperson v. Arkansas, 393 U.S. 97, 106

(1968). Even statements exhibiting some hostility to religion

do not violate the Establishment Clause if the government

conduct at issue has a secular purpose, does not have as its

principal or primary effect inhibiting religion and does not

foster excessive government entanglement with religion. See

Am. Family, 277 F.3d at 1121; see also Edwards v. Aguillard,

482 U.S. 578, 583 (1987); Lemon v. Kurtzman, 403 U.S. 602

(1971).

by amendments previously allowed, [3] undue prejudice to the opposing

party by virtue of allowance of the amendment, [and] [4] futility of

amendment.” Eminence Capital, 316 F.3d at 1052 (quoting Foman, 371

U.S. at 182) (internal quotation marks omitted).

11278 C.F. v. CAPISTRANO USD

[6] In evaluating a grant of qualified immunity, we ask two

questions: (1) whether, taking the facts in the light most

favorable to the nonmoving party, the government official’s

conduct violated a constitutional right, and (2) whether the

right was clearly established at the time of the alleged miscon-

duct. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001), over-

ruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.

Ct. 808 (2009). If the answer to either is “no,” the official

cannot be held liable for damages. See id. We may address the

second question first, particularly where “it is plain that a con-

stitutional right is not clearly established but far from obvious

whether in fact there is such a right.” Pearson, 129 S. Ct. at

818. We have little trouble concluding that the law was not

clearly established at the time of the events in question —

there has never been any reported case holding that a teacher

violated the Establishment Clause by making statements in

the classroom that were allegedly hostile to religion. Because

the district court’s judgment must be affirmed on that basis,

we decline to consider the constitutionality of Corbett’s state-

ments, and we vacate the district court’s decision to the extent

it decided the constitutionality of any of Corbett’s statements.

See id. at 815-18.

2.

[7] “[G]overnmental officials . . . generally are shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Deorle v.

Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) (omission in

original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982)) (internal quotation marks omitted). In evaluating

whether a right is clearly established, we look to the state of

the law at the time of the incident in question. See Bryan v.

MacPherson, 630 F.3d 805, 832 (9th Cir. 2010). “The con-

tours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creigh-

C.F. v. CAPISTRANO USD 11279

ton, 483 U.S. 635, 640 (1987)) (internal quotation marks

omitted). Courts “do not require a case directly on point, but

existing precedent must have placed the statutory or constitu-

tional question beyond debate.” Ashcroft v. al-Kidd, ___ U.S.

___, 131 S. Ct. 2074, 2083 (2011). That standard is not met

here — nothing put Corbett on notice that his statements

might violate the Establishment Clause. See Hope v. Pelzer,

536 U.S. 730, 739-41 (2002); Flores v. Morgan Hill Unified

Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir. 2003).

[8] The Supreme Court has recently reiterated that we must

not “define clearly established law at a high level of generali-

ty” when analyzing whether the qualified immunity standard

is met. Al-Kidd, 131 S. Ct. at 2084. Rather, the right alleged

to have been violated must be defined in a “ ‘more particular-

ized’ ” manner than, for example, “the general proposition

that use of force is contrary to the Fourth Amendment if it is

excessive under objective standards of reasonableness.” Sau-

cier, 533 U.S. at 201-02 (quoting Anderson, 483 U.S. at 640).

That is the fundamental problem with Farnan’s contention

that qualified immunity does not protect Corbett. Farnan

asserts that “[i]t has been clearly established for many years

that the government must remain neutral with regard to reli-

gion, and it may not show its disapproval of religion.” This

overbroad proposition, “cast at a high level of generality,” is

just the sort of sweeping statement of the law that is inappro-

priate for assessing whether qualified immunity applies.

Brousseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam);

see also al-Kidd, 131 S. Ct. at 2084; Saucier, 533 U.S. at 202-

01. Instead, the issues must be characterized with greater

specificity. See, e.g., Brousseau, 543 U.S. at 200 (defining the

relevant inquiry as whether it was a clearly established Fourth

Amendment violation “to shoot a disturbed felon, set on

avoiding capture through vehicular flight, when persons in the

immediate area are at risk from that flight”); Fogel v. Collins,

531 F.3d 824, 833 (9th Cir. 2008) (holding that qualified

immunity was warranted where there “was no reported case

in which a person in the post-September 11 environment satir-

11280 C.F. v. CAPISTRANO USD

ically proclaimed himself or herself to be a terrorist in posses-

sion of weapons of mass destruction”).

[9] Considering a more precise, and therefore relevant,

definition of the question at stake in this case suggests why

Farnan has sought to frame the issue so broadly: nothing in

the law would make clear to a reasonable person that he might

violate the Establishment Clause by making the challenged

statements in the context of a classroom discussion in an

Advanced Placement history course. Even as a general matter,

precedent on the Establishment Clause is scarce and we “have

little guidance concerning what constitutes a primary effect of

inhibiting religion.” Am. Family, 277 F.3d at 1122; see also

Vasquez v. L.A. Cnty., 487 F.3d 1246, 1256 (9th Cir. 2007)

(same). More to the point, we are aware of no prior case hold-

ing that a teacher violated the Establishment Clause by

appearing critical of religion during class lectures, nor any

case with sufficiently similar facts to give a teacher “fair

warning” that such conduct was unlawful. Flores, 324 F.3d at

1136-37; see also al-Kidd, 131 S. Ct. at 2084.

The only cases that Farnan argued in his briefs clearly

establish the law in the relevant educational context involve

claims that school officials were promoting religion rather

than expressing hostility toward it, and challenge systemic

actions such as state laws and school district policies rather

than parsing individual teachers’ classroom discussions. See,

e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15-

18 (2004) (holding that a father lacked standing to challenge

school district policy requiring teacher-led recitation of the

Pledge of Allegiance in his daughter’s kindergarten class);

Epperson, 393 U.S. at 104-08 (holding that Arkansas statutes

prohibiting the teaching of evolution in public schools vio-

lated the Establishment Clause); Sch. Dist. of Abington Twp.

v. Schempp, 374 U.S. 203, 223-25 (1963) (holding that state

laws requiring the reading of Bible verses and recitation of the

Lord’s Prayer in public school classes violated the Establish-

ment Clause). At oral argument, Farnan’s counsel conceded

C.F. v. CAPISTRANO USD 11281

that there is no case directly on point, but argued that the gen-

eral principles gleaned from the cases cited in his briefs, and

from cases involving claims of hostility to religion in nonedu-

cational contexts, are sufficient to clearly establish the law.

We cannot agree.

The Supreme Court has long recognized the importance of

protecting the “robust exchange of ideas” in education,

“which discovers truth ‘out of a multitude of tongues.’ ” Key-

ishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (quoting

United States v. Associated Press, D.C., 52 F. Supp. 362, 372

(S.D.N.Y. 1943)). “Teachers and students must always remain

free to inquire, to study and to evaluate, to gain new maturity

and understanding . . . .” Id. (quoting Sweezy v. New Hamp-

shire, 354 U.S. 234, 250 (1957)) (internal quotation marks

omitted); see also Nat’l Sch. Bds. Ass’n, School Board Poli-

cies on Academic Freedom 2, 5 (1973) (“Academic freedom

is an essential for responsible teachers. . . . To prepare stu-

dents for adult roles in a democratic society, teachers and the

schools must try to maintain an atmosphere of free inquiry.”).

This academic freedom will sometimes lead to the examina-

tion of controversial issues. Both parties agree that AP Euro

could not be taught without discussing religion. We have no

doubt that the freedom to have a frank discussion about the

role of religion in history is an integral part of any advanced

history course. Indeed, a collective of organizations including

the American Association of School Administrators, Ameri-

can Federation of Teachers, National Education Association

and National School Boards Association, has long acknowl-

edged that “[b]ecause religion plays a significant role in his-

tory and society, study about religion is essential to

understanding both the nation and the world.” Religion in the

Public School Curriculum: Questions and Answers, 8 J.L. &

Religion 309, 310 (1990); see also Tenn. Educ. Ass’n, A

Teacher’s Guide to Religion in the Public Schools 2 (2008)

(same).

[10] In broaching controversial issues like religion, teach-

ers must be sensitive to students’ personal beliefs and take

11282 C.F. v. CAPISTRANO USD

care not to abuse their positions of authority. See Edwards,

482 U.S. at 584 (“Families entrust public schools with the

education of their children, but condition their trust on the

understanding that the classroom will not purposely be used

to advance religious views that may conflict with the private

beliefs of the student and his or her family.”). But teachers

must also be given leeway to challenge students to foster criti-

cal thinking skills and develop their analytical abilities. This

balance is hard to achieve, and we must be careful not to curb

intellectual freedom by imposing dogmatic restrictions that

chill teachers from adopting the pedagogical methods they

believe are most effective. Cf. Keyishian, 384 U.S. at 604. At

some point a teacher’s comments on religion might cross the

line and rise to the level of unconstitutional hostility. But

without any cases illuminating the “ ‘dimly perceive[d] . . .

line[ ] of demarcation’ ” between permissible and impermissi-

ble discussion of religion in a college level history class, we

cannot conclude that a reasonable teacher standing in Cor-

bett’s shoes would have been on notice that his actions might

be unconstitutional. Mueller v. Allen, 463 U.S. 388, 393

(1983) (quoting Lemon, 403 U.S. at 612). We therefore affirm

the district court’s decision that Corbett was entitled to quali-

fied immunity.

CONCLUSION

[11] “[T]he Establishment Clause presents especially diffi-

cult questions of interpretation and application,” and we can-

not expect Corbett to have divined the law without the

guidance of any prior case on point. Id. at 392. Because we

conclude that Corbett is entitled to the protection of qualified

immunity, we affirm the district court’s judgment granting

qualified immunity. Because we do not reach the constitution-

ality of any of Corbett’s statements, we vacate the district

court’s judgment in that respect. Each party shall bear its own

costs on appeal.

AFFIRMED in part, VACATED in part.