Mohamed Sabra v. Maricopa County Community Coll

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOHAMED SABRA; COUNCIL ON No 20-16774

AMERICAN-ISLAMIC RELATIONS OF

ARIZONA, D.C. No.

Plaintiffs-Appellants, 2:20-cv-01080-

SMB

v.

MARICOPA COUNTY COMMUNITY OPINION

COLLEGE DISTRICT; NICHOLAS

DAMASK, in his official and

individual capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Susan M. Brnovich, District Judge, Presiding

Argued and Submitted November 15, 2021

Phoenix, Arizona

Filed August 10, 2022

Before: Richard R. Clifton, Daniel A. Bress, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Clifton;

Concurrence by Judge VanDyke;

Dissent by Judge Bress

2 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

SUMMARY *

Civil Rights

The panel affirmed the district court’s dismissal of an

action brought pursuant to 42 U.S.C. § 1983 against

Dr. Nicholas Damask and the Maricopa County Community

College District alleging that a module on Islamic terrorism

within a course in world politics taught by Damask at

Scottsdale Community College violated plaintiff’s

constitutional rights under the Establishment Clause and

Free Exercise Clause of the First Amendment, and that

Damask’s disparaging treatment of Islam was part of an

official policy embraced by the College District.

The panel first concluded that the Council on American-

Islamic Relations of Arizona, Inc. (CAIR-AZ) had

organizational standing to bring this action alongside

plaintiff Mohamed Sabra. CAIR-AZ, a non-profit

organization that advocates for the civil rights of American

Muslims, alleged that Damask’s actions frustrated its

mission and caused it to divert resources in order to combat

Damask’s distorted portrayal of Islam. At the motion-to-

dismiss stage, these allegations were sufficient to establish

organizational standing.

The panel next held that plaintiffs could not sustain a

claim for municipal liability against the College District.

First, plaintiffs abandoned their municipal liability claim on

appeal by failing to address it in their Reply Brief even after

the College District raised the argument in its Answering

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 3

Brief on appeal. But even on the merits, the claim could not

survive dismissal under Fed. R. Civ. P. 12(b)(6). Although

plaintiffs alleged that Damask has taught his World Politics

class for 24 years, they did not allege that the course in other

years contained the same content that offended Sabra, or that

Damask’s views or teaching methods were so persistent and

widespread as to constitute part of the College District’s

standard operating procedure. Plaintiffs also failed to

produce authority suggesting that a professor becomes a

“final policymaker” for an entire community college district

simply by assuming administrative responsibilities within

his department, nor had the panel located any such authority.

The panel held that Damask was entitled to qualified

immunity with respect to plaintiffs’ Establishment Clause

and Free Exercise claims. Under the second prong of the

qualified immunity analysis, the constitutional right

allegedly violated in this case was not clearly established at

the time of the events giving rise to this action. This court

has never held that actions like the ones challenged in this

case constitute a violation of the Establishment Clause or

Free Exercise Clause. Nor was this the exceptional case

where the alleged constitutional violation was so obvious as

to obviate the need for a case on point. Rather, the context

of this case weighed heavily against any argument that the

violation was obvious. Because the “clearly established”

prong was dispositive, the panel did not address whether,

under the facts alleged in the complaint, Damask violated

Sabra’s constitutional rights.

Concurring, Judge VanDyke agreed with the majority

but wrote to respond to Judge Bress’s position that qualified

immunity was inappropriate because Sabra’s Free Exercise

claim was clearly established. In reality, Sabra’s Free

Exercise claim—whether it might ultimately succeed or

4 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

not—was fraught with difficulties, which is why no claim

like it has ever, to Judge VanDyke’s knowledge, been

squarely addressed by any court. Judge VanDyke also wrote

separately to briefly note this court’s misguided approach to

organizational standing. Here, the only resources CAIR-AZ

diverted from its organization were those to further its stated

purpose of “protecting the civil rights of American

Muslims.” An activity that falls exactly in line with an

organization’s stated purpose seriously undermines any

sense of injury, and therefore runs afoul of the Supreme

Court’s threshold requirement that injury be “concrete and

particularized” and “actual or imminent.”

Dissenting, Judge Bress stated that the question here was

not whether Sabra should prevail but merely whether he had

stated a claim for relief at the motion to dismiss stage.

Although Sabra suffered no First Amendment injury through

his mere exposure to inflammatory course materials, he may

have suffered such an injury when, in connection with those

disturbing materials, he was forced to answer black and

white multiple-choice questions that he plausibly alleged

required him to violate his religious beliefs on pain of

receiving a lower grade. Discovery was therefore needed to

assess Damask’s explanations for his facially problematic

quiz questions. Judge Bress also disagreed with affirming

the dismissal of the College District on the ground that Sabra

had not pleaded a custom or practice for purposes of

municipal liability. The district court never reached this

issue, the College devoted minimal briefing to it, and Sabra

had never been given an opportunity to amend his complaint.

The majority then prevented Sabra from even having a

standard opportunity to replead by holding that Sabra had

abandoned this claim on appeal—an abandonment holding

that was unsound, unprecedented, and unfair.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 5

COUNSEL

Ahmed Soussi (argued), CAIR-AZ, Mesa, Arizona; David

Chami, Price Law Group APC, Scottsdale, Arizona;

Raeesabbas Mohamed, RM Warner PLC, Scottsdale,

Arizona; for Plaintiffs-Appellants.

Kris Leonhardt (argued) and Pavneet Singh Uppal, Fisher &

Phillips LLP, Phoenix, Arizona, for Defendant-Appellee

Nicholas Damask.

David D. Garner (argued) and Travis C. Hunt, Osborn

Maledon P.A., Phoenix, Arizona, for Defendant-Appellee.

Maricopa County Community College District.

6 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

OPINION

CLIFTON, Circuit Judge:

Mohamed Sabra (“Sabra”) and the Council on

American-Islamic Relations of Arizona, Inc. (“CAIR-AZ”)

brought this action against Dr. Nicholas Damask

(“Damask”) and the Maricopa County Community College

District (the “College District”). Plaintiffs allege that a

module on Islamic terrorism within a course in world politics

taught by Damask at Scottsdale Community College (the

“College”) violated Sabra’s constitutional rights under the

Establishment Clause and Free Exercise Clause of the First

Amendment. Plaintiffs also allege that Damask’s

disparaging treatment of Islam was part of an official policy

embraced by the College District. The district court granted

Defendants’ motion to dismiss the Complaint, and the

Plaintiffs appealed.

We conclude that CAIR-AZ has organizational standing

to bring this action alongside Sabra. CAIR-AZ, a non-profit

organization that advocates for the civil rights of American

Muslims, alleged that Damask’s actions frustrated its

mission and caused it to divert resources in order to combat

Damask’s distorted portrayal of Islam. At the motion-to-

dismiss stage, these allegations are sufficient to establish

organizational standing.

We also conclude, however, that Plaintiffs cannot sustain

a claim for municipal liability against the College District.

Plaintiffs failed to allege that their injuries were caused by a

municipal policy or custom and subsequently abandoned

their municipal liability claim on appeal.

Finally, we conclude that Damask is entitled to qualified

immunity with respect to Plaintiffs’ Establishment Clause

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 7

and Free Exercise claims. Under the second prong of the

qualified immunity analysis, the constitutional right

allegedly violated in this case was not clearly established at

the time of the events giving rise to this action. Because the

“clearly established” prong is dispositive in this case, we do

not address whether, under the facts alleged in the

Complaint, Damask violated Sabra’s constitutional rights.

We affirm the district court’s dismissal of the action.

I. Background

A. The World Politics Course at Scottsdale Community

College

This case arises from an online course offered by the

College during the spring 2020 semester. The course,

“World Politics,” was described as an “[i]ntroduction to the

principles and issues relating to the study of international

relations,” including “the political, economic, national, and

transnational rationale for international interactions.” It was

divided into six “modules,” each designed to examine a

different theme in the study of international affairs,

specifically (1) “Realism,” (2) “Idealism and International

Law,” (3) “Images of the World,” (4) “Three World Wars,”

(5) “Globalization and the World Economy,” and

(6) “Islamic Terrorism.” Within each module, there were

three components: first, students would review PowerPoint

slides discussing the theme of the module; next, they would

complete assigned readings to supplement the PowerPoint

material; and finally, they would complete an online,

multiple-choice quiz. Students were to complete the course

online at their own pace.

Sabra was a student in the course. A practicing Muslim,

Sabra alleges that the last module, Islamic Terrorism,

presented a “biased” and “distort[ed]” portrayal of Islam.

8 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

His First Amendment claims, discussed below, are based on

allegedly false and inflammatory statements throughout the

PowerPoint slides, assigned reading, and required quiz that

comprised the Islamic Terrorism module. Sabra attached

portions of these materials to his Complaint and incorporated

them by reference, and the district court considered these

materials in evaluating and granting the motion to dismiss

his claims.

1. The Islamic Terrorism Module’s PowerPoint

Slides

The module’s PowerPoint presentation, which students

were required to review independently at their own pace,

was divided into three sub-sections: (1) “Defining

Terrorism,” (2) “Islamic Terrorism: Definition,” and

(3) “Islamic Terrorism: Analysis.” Sabra focuses

predominantly on the first two sub-sections.

The first sub-section provided a general overview of

terrorism and distinguished it from other forms of war. On

one of the allegedly offending slides, Damask stated that,

“effectively[,] there is no non-Islamic international terrorism

in the contemporary world.” Another slide in this section

gave a statistical accounting of Islamic terror attacks,

comparing the scope of such attacks to other terror

movements and conflicts throughout history. The slide

stated, for example, that “Islamic terrorists kill on average

more people every 90 days than the number of blacks killed

by the Ku Klux Klan in its entire 120+ year history.”

The second sub-section purported to define Islamic

terrorism and situate it within a larger historical, theological,

and political context. One slide, for example, stated that

“Islamic terrorism should be understood within the broader

history of Islamic warfare against unbelief,” or “jihad.”

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 9

“Politically-speaking,” the slide explained, “jihad is a

religiously-justified, communal mobilization of the

resources and capabilities of the Muslim population for war

against unbelievers.”

Subsequent slides described the putative justification for

terrorism in Islamic theology and law, as well as its supposed

antecedents in early Islamic history and teaching. For

example, under a heading labeled “[t]he theological mandate

for jihad,” one slide cited Quranic passages to support a

statement that “jihad is a moral obligation of Muslims with

limited exceptions such as for the blind.” The next slide

argued that the Prophet Muhammad plays a “central role” in

the justification for Islamic terrorism. “All Islamic

terrorists,” it stated, “sanctify their actions through pious

references to the Quran and the traditions of the Prophet

Muhammad,” whose “life, sayings, and circumstances”

provide a basis for “[e]ngaging in jihad.” Rejecting the

argument that Islam does not promote “warfare or violence,”

the slide stated that such a notion “would flatly contradict

hundreds of Quranic passages and hadiths (‘traditions’) of

Muhammad, as well as longstanding Islamic jurisprudence.”

The presentation also stated that “Muhammad himself

committed acts that . . . unambiguously would be regarded

as terrorism today.”

The final sub-section of the presentation discussed how

different groups respond to Islamic terrorism. One slide, for

example, stated that “Muslim popular opinion has some

sympathy for terrorism generally, and the ultimate goals of

terror group[s] (sharia) particularly.” The same slide argued

that “Islamic states have a decided preference to employ

force over diplomacy, relative to other countries,” citing

comparative statistics regarding various countries’ use of

force.

10 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

2. The Islamic Terrorism Module’s Assigned

Reading

The module’s assigned reading was an excerpt from the

book Future Jihad: Terrorist Strategies against America, by

Walid Phares. In the first chapter, entitled “The Historical

Roots of Jihad,” Phares criticized the “western

establishment[’s] . . . efforts to convince audiences and

readers of the benign character of jihad.” Phares argued that

although western academics, journalists, and political

activists tried to “sanitize[]” and “camouflage[]” the

meaning of “jihad” throughout the 1990s, its

“comprehensive and widely understood” meaning for much

of history was quite different. “Jihad,” Phares maintained in

the assigned reading, was a “call for mobilization and action

and ultimately war” in service of the early Islamic umma, or

nation, “as it developed its military and strategic

dimensions.” The aim of jihad was “to promote, propagate,

and conquer for Islam.” Thus, Phares scoffed at westerners’

efforts to “portray personal jihad as a ‘spiritual experience

on the inside,’ almost like yoga.” Such efforts, he argued,

“can only blur the public’s vision and its grasp of the real

dangers emanating from the modern use of jihad.”

3. The Islamic Terrorism Module’s Required Quiz

Finally, after reviewing the PowerPoint slides and

completing the assigned reading, students were required to

complete a 25-question, multiple choice quiz testing their

comprehension of the module’s content. As discussed

below, Sabra maintains that several questions (and their

correct answers) display a hostility to Islam and are factually

inaccurate. Sabra identifies five examples.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 11

Question 9 asked: “Where is terrorism encouraged in

Islamic doctrine and law?” The answer choices were as

follows:

• the Medina verses

• the Muhammad verses

• the Mecca verses

• terrorism is not encouraged in Islamic

doctrine and law

The correct answer was the first choice, “the Medina

verses.” Sabra incorrectly selected the fourth choice.

Question 12 asked: “Who do Islamic terrorists strive to

emulate?” The answer choices were as follows:

• the Prophet Muhammad

• Saddam Hussein

• Osama bin Laden

• Ibn Tamiyyah

The correct answer was the first choice, “the Prophet

Muhammad.” Sabra incorrectly selected the fourth choice.

Question 15 stated: “Contemporary terrorism is

______.” The answer choices were as follows:

• communist/left-wing

• Islamic

12 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

• Mormon

• fascist/right-wing

The correct answer was the second choice, “Islamic.” Sabra

incorrectly selected the first choice.

Question 19 stated: “Walid Phares notes that although

‘gullible’ Westerners are taught that jihad can have two

meanings, people in the Arabic world understand that its

overwhelmingly obvious meaning is ______.” The answer

choices were as follows:

• struggling against sin

• spiritual contemplation

• combat/war

• peace

The correct answer was the third choice, “combat/war.”

Sabra incorrectly selected the first choice.

Question 20 stated: “Terrorism is ______ in Islam.” The

answer choices were as follows:

• justified within the context of jihad

• always forbidden

• justified under international law

• always justified

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 13

The correct answer was the first choice, “justified within the

context of jihad.” Sabra incorrectly selected the second

choice.

When Sabra took the quiz on April 29, 2020, he was, as

alleged in his Complaint, “shocked and offended” to see the

potential answer choices for each of the questions above.

These questions, Sabra alleged, forced him to make a

decision: “either disavow his religion or be punished by

getting the answers wrong on the quiz.” Sabra decided to

answer the questions in accordance with his own personal

practice of the Islamic faith and was penalized by losing

points on the quiz for selecting incorrect answer choices.

After completing the quiz, Sabra emailed Damask to

express his “disgust” at the questions above (and their

correct answers), which, Sabra said, were “absolutely in

distaste of Islam.” In response, Damask thanked Sabra for

his “heartfelt response” and attempted to “allay” Sabra’s

concerns by noting “that the course content [wasn’t] ‘for’ or

‘against’ anything, but aim[ed] to explain international

politics.” Damask went on to explain that the “point” of the

quiz and module was not to assert that what terrorists

“believe is in fact a ‘true’ or ‘right’ or ‘wrong’ interpretation

of a major religion,” but rather to convey what terrorists

believe.

In a video posted to Instagram one day after Sabra took

the quiz, a comedian who had learned about the quiz

criticized Damask’s questions and challenged the College on

its stance toward the quiz. The College contacted Sabra and

pledged to investigate the issue. Shortly thereafter, the

College posted a statement to Instagram apologizing to

Sabra “and to anyone in the broader community who was

offended by the [quiz questions].” The College called the

content of the quiz “inaccurate, inappropriate, and not

14 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

reflective to inclusive [sic] nature of college.” The College

also stated that Sabra would receive credit for three of the

questions he had missed, and that the offending questions

would be removed from future quizzes.

B. Sabra and CAIR-AZ Challenge the Islamic

Terrorism Module

Sabra brought this action under 42 U.S.C. § 1983 against

Damask and the College District, of which the College is a

part, alleging that the Islamic Terrorism module violated

Sabra’s constitutional rights under the Establishment Clause

and Free Exercise Clause of the First Amendment. Joining

Sabra as a Plaintiff in the action was CAIR-AZ, a non-profit

organization that advocates on behalf of American Muslims.

CAIR-AZ alleged that in an effort “to remedy the damage

done by Damask,” it contracted with a religious scholar to

develop materials for a public-awareness campaign that

would “correct[] . . . Islamophobic information,” thus

diverting resources from the organization’s usual advocacy

activities.

In their first cause of action, Plaintiffs allege that the

Islamic Terrorism module violates the Establishment Clause

because its “primary message is the disapproval of Islam.”

The crux of this claim is that Damask presented a “biased”

and “one-sided” portrayal of Islam as though it were fact,

without qualifying this interpretation or exposing students to

alternative views.

The Complaint gathers several examples that allegedly

illustrate this disparaging treatment of Islam. Plaintiffs

argue, for example, that Damask defined the concept of

“jihad” too narrowly, failing to inform students “that prayer,

introspection, and spiritual struggle” are what mainstream

Muslims refer to when discussing jihad. They allege that

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 15

Damask “intentionally distort[ed]” the meaning of various

passages from the Quran and the Hadith 1 by failing to

contextualize and discuss the cited source material, using

incomplete or inaccurate quotations, and relying on poor

English translations. They contend that the PowerPoint

presentation mischaracterized the actions of the Prophet

Muhammad and contained “blatantly false and

inflammatory statements about Islam” (for example, that

contemporary Islamic legal authorities unanimously

sanction suicide attacks). Moreover, they allege that the

assigned reading was authored by a “known Islamophobe”

who “represents . . . an extreme perspective.” Without this

additional contextual information, they argue, the assigned

passage suggested that Damask’s “biased interpretations” of

Islam were “academic facts.”

In their second cause of action, Plaintiffs allege that the

end-of-module quiz “forced Sabra to agree to [Damask’s]

radical interpretation of Islam” in violation of the Free

Exercise Clause. As noted, Plaintiffs maintain that certain

questions on the module’s mandatory quiz required Sabra

either to “disavow his religion” by selecting the correct

answer choice or be penalized by answering in accordance

with his personal religious beliefs.

Plaintiffs sued Damask in both his official and individual

capacities. Plaintiffs also named the College District as a

Defendant under a theory of municipal liability, alleging,

among other things, that Damask acted as a “final

policymaker” on behalf of the District, and that the District

1

The “Hadith” refers to the sayings, teachings, and actions of the

Prophet Muhammad.

16 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

“had constructive knowledge” that Damask would teach the

Islamic Terrorism module in his World Politics class.

In addition to seeking nominal damages, Plaintiffs asked

the district court to declare that Defendants’ actions violated

the Establishment Clause, and to enjoin Defendants

temporarily and permanently from teaching the offending

materials unless and until they are modified.

C. The District Court Dismisses Plaintiffs’ Claims

Defendants moved to dismiss the Complaint under Rules

12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure. The district court concluded, as a threshold

matter, that although Sabra’s completion of the World

Politics course mooted his claim for declaratory and

injunctive relief, he could still maintain an action for

nominal monetary damages. But CAIR-AZ, the court

concluded, could not establish Article III standing under a

theory of organizational injury. In the court’s view, CAIR-

AZ had not explained how its remedial actions—developing

a public-awareness campaign to combat Islamophobia—fell

outside “the realm of [its] normal advocacy,” nor had the

organization identified the source from which it was forced

to divert resources. Thus, it failed to state an injury that

would establish Article III standing.

The district court also concluded that Sabra failed to state

an Establishment Clause or Free Exercise claim. The

allegedly offensive material, the court reasoned, made up

just one part of a unit that was itself one of six modules in

the entire course. Moreover, the challenged content was

conveyed in the context of analyzing terrorism, of which

Islamic terrorism is a part. Viewing the course “as a whole,”

the court concluded, a reasonable, objective observer would

not conclude that the course’s “primary purpose” was to

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 17

inhibit the practice of Islam, and thus, Sabra failed to state a

claim under the Establishment Clause. With respect to his

Free Exercise claim, the court said Sabra was not put to the

choice of either repudiating his religion or receiving a lower

score on the quiz. In the court’s view, by selecting the

correct answer Sabra was not being forced to adopt the views

expressed by Damask or the authorities cited in the course;

rather, he was merely “demonstrat[ing] an understanding of

the material taught.” Because the course did not burden

Sabra’s personal worship, the court concluded, Sabra’s Free

Exercise claim failed as a matter of law.

Finally, the district court concluded that Damask was

entitled to qualified immunity. As the court observed,

existing precedent governing Establishment Clause

violations based on college teaching is “anything but clear,”

particularly when the challenged content involves religion.

Because it could not say that Damask would have been on

notice that his conduct might be unconstitutional, the court

concluded that Damask was shielded by qualified immunity.

This appeal followed.

II. Discussion

We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a district court’s dismissal under Rule

12(b)(1) or Rule 12(b)(6). Whitewater Draw Nat. Res.

Conservation Dist. v. Mayorkas, 5 F.4th 997, 1007 (9th Cir.

2021). We also review de novo a district court’s decision

regarding qualified immunity. Vazquez v. County of Kern,

949 F.3d 1153, 1159 (9th Cir. 2020). Where, as here, a

district court has considered documents attached to the

complaint, we may likewise consider those documents when

resolving the appeal. Interpipe Contracting, Inc. v. Becerra,

898 F.3d 879, 887 (9th Cir. 2018).

18 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

A. CAIR-AZ Has Organizational Standing

“The Article III standing inquiry serves a single purpose:

to maintain the limited role of courts by ensuring they protect

against only concrete, non-speculative injuries.” E. Bay

Sanctuary Covenant v. Biden, 993 F.3d 640, 662 (9th Cir.

2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 583

(1992)). Whether a plaintiff has standing (and thus, whether

the court has jurisdiction) is a “threshold question” that “is

distinct from the merits of his claim.” Maya v. Centex Corp.,

658 F.3d 1060, 1068 (9th Cir. 2011).

An organization can assert Article III standing in its own

right, provided it can “allege[] such a personal stake in the

outcome of the controversy as to warrant [its] invocation of

federal-court jurisdiction[.]” Havens Realty Corp. v.

Coleman, 455 U.S. 363, 378–79 (1982) (citation and internal

quotation marks omitted). In Havens, an organizational

plaintiff alleged that the defendants’ racial steering practices

impaired the organization’s efforts to achieve equal housing

access through counseling and referral services. Id. at 379.

The complaint further alleged that the plaintiff had to

“devote significant resources” to “counteract” the

defendants’ practices. Id. (record citation omitted). The

Supreme Court held that under these facts, there was “no

question” that the organization had sustained a “concrete and

demonstrable injury,” with an attendant “drain on [its]

resources,” that went well beyond a “simpl[e] . . . setback to

[its] abstract social interests.” Id.

We have “read Havens to hold that an organization has

direct standing to sue where it establishes that the

defendant’s behavior has frustrated its mission and caused it

to divert resources in response to that frustration of purpose.”

E. Bay Sanctuary, 993 F.3d at 663 (citing Fair Hous. of

Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)).

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 19

Although organizations cannot “manufacture the injury by

incurring litigation costs or simply choosing to spend money

fixing a problem that otherwise would not affect the

organization at all,” they can establish standing by showing

that they “would have suffered some other injury” had they

“not diverted resources to counteracting the problem.” Id.

(citation omitted).

Here, the district court concluded that CAIR-AZ “ha[d]

not effectively shown that it would have suffered an injury

if it had not diverted resources to counteract Dr. Damask’s

allegedly ‘Islamophobic’ teachings.” The allegedly

offending course material, the court said, was more “akin to

a mere social setback for CAIR-AZ’s abstract social

interest[s],” and the organization had not demonstrated “a

diversion of resources that [was] not a normal part of [its]

activities.” Thus, CAIR-AZ could not establish a cognizable

Article III injury.

Under our court’s precedents, we disagree. CAIR-AZ is

a non-profit organization “committed to advocacy and

protecting the civil rights of American Muslims.” The

Complaint alleges that CAIR-AZ “had to divert [its]

resources to create a campaign correcting the Islamophobic

information” in Damask’s course materials, contracting with

a religious scholar to develop materials for this campaign.

Under similar facts, we have recognized that such an injury

is sufficient to confer Article III standing on an

organizational plaintiff.

In Fair Housing Council of San Fernando Valley v.

Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012), for

example, the organizational plaintiffs stated that they had

spent resources investigating the defendant’s alleged

discriminatory actions and developing “new education and

outreach campaigns” to combat those actions, id. at 1219.

20 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

The resources spent on those efforts were unrelated to

litigation. Id. We concluded that because the defendant’s

actions caused the plaintiffs “to divert resources independent

of litigation costs and frustrated their central mission,” the

plaintiffs had established organizational standing. Id.

So it is here. CAIR-AZ alleges that in response to

Damask’s allegedly harmful depiction of Islam, it went out

of its way to develop a public-awareness campaign rebutting

the information in Damask’s course, “divert[ing] [its]

resources” by contracting with a religious scholar who

assisted in creating materials for the campaign. As in Fair

Housing Council, then, Damask’s actions “frustrated”

CAIR-AZ’s mission and caused it to divert resources

unrelated to litigation costs. See id. Although CAIR-AZ’s

diversion-of-resources injury is “broadly alleged,” such

allegations are still “sufficient to establish organizational

standing at the pleading stage.” Nat’l Council of La Raza v.

Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015).

Defendants argue that the “Havens framework” should

not govern claims arising under the Establishment Clause or

Free Exercise Clause, but we are not persuaded. There is

nothing in Havens’ discussion of organizational standing

that would limit its application in the First Amendment

context. See 455 U.S. at 378–79. The fact that Plaintiffs

have not located a case in which a court extended Havens’

rationale to First Amendment claims does not persuade us

otherwise. Indeed, we have regularly applied Havens’

organizational standing principles outside the fair-housing

context presented in Havens. See, e.g., E. Bay Sanctuary,

993 F.3d at 662–64 (applying Havens and upholding

plaintiffs’ organizational standing in the context of

immigration law); Nat’l Council of La Raza, 800 F.3d

at 1039–41 (same result in the context of voting rights law).

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 21

Because CAIR-AZ has alleged that Damask’s actions

frustrated its organizational mission and caused it to divert

resources to counteract these actions, we conclude that

CAIR-AZ stated sufficient facts to establish Article III

standing at the motion-to-dismiss stage of the litigation.

B. Plaintiffs Failed to State a Municipal Liability Claim

Against the College District and Abandoned Their

Claim on Appeal

We now turn to Plaintiffs’ municipal liability claim

against the College District. 2 Plaintiffs allege that Damask

has taught his World Politics course for 24 years, and that he

was required to submit a copy of his course syllabus to his

“division/department office” no later than the end of the first

week of class, under a college regulation. Because Damask

served as the “Social and Behavioral Sciences Evening /

Summer Department Chair” at the College, Plaintiffs allege

that he acted as a “final policymaker” for the College

District, which “knew or had constructive knowledge” that

Damask “was teaching the disapproval of Islam.”

2

The College District does not dispute that, under Monell v. New

York City Department of Social Services, 436 U.S. 658 (1978), it is a

municipal entity subject to suit under 42 U.S.C. § 1983. See also, e.g.,

Eagle Point Educ. Ass’n/SOBC/OEA v. Jackson Cnty. Sch. Dist. No. 9,

880 F.3d 1097, 1108 (9th Cir. 2018); see generally Rodriguez v.

Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703 (9th Cir. 2010). Thus,

although the College District is not a municipality per se, we still refer

to Plaintiffs’ claim against the College District as one for “municipal

liability.” Cf. Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143,

1148 (9th Cir. 2011) (referring to a § 1983 claim against a county

hospital as one for “municipal liability”).

22 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

1. Plaintiffs Abandoned Their Municipal Liability

Claim on Appeal

In the proceedings before the district court, Defendants

argued that Plaintiffs cannot sustain a claim for municipal

liability against the College District because they do not

allege an “official action or policy” giving rise to their

injuries, as is required under Monell. 3 The district court did

not reach this argument in dismissing the Complaint, instead

concluding that Plaintiffs had not stated a violation of the

Establishment Clause or Free Exercise Clause. However, we

“may affirm a 12(b)(6) dismissal on any basis fairly

supported by the record.” Adams v. Johnson, 355 F.3d 1179,

1183 (9th Cir. 2004).

As a threshold matter, Plaintiffs have abandoned their

municipal liability claim on appeal. Although Plaintiffs

advanced a claim for municipal liability in their Complaint

and then defended that claim in their opposition to

Defendants’ motion to dismiss before the district court, they

failed to address or even mention this claim in their Reply

Brief even after the College District raised its municipal

liability argument in its Answering Brief on appeal, starting

on page one of that brief. That failure amounts to

abandonment of Plaintiffs’ claim against the College District

for municipal liability and of whatever argument they might

3

Although Defendants characterize this failure as an infirmity that

impacts Article III standing, we treat it as a ground for dismissal under

Rule 12(b)(6), based on a plaintiff’s failure to state a claim. See, e.g.,

AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 635–37 (9th

Cir. 2012).

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 23

have offered to us to support that claim. See, e.g., Maciel v.

Cate, 731 F.3d 928, 932 n.4 (9th Cir. 2013). 4

The dissent emphasizes that Plaintiffs were not required

to address in their Opening Brief an alternative ground for

affirmance not addressed by the district court. See

Dissenting Op. 71–72. 5 That is true, but also beside the

point. It is Plaintiffs’ failure to address the municipal

liability claim in their Reply Brief, after it was squarely

raised by the College District in its Answering Brief, that

constitutes abandonment of the claim. Though the dissent

suggests otherwise, this conclusion is based on a

straightforward application of our case law on abandonment.

4

This failure cannot be attributed to any lack of opportunity. The

Reply Brief reported that it contained 5,400 words. Under our court’s

rules, a reply brief can extend to 7,000 words. Ninth Circuit Rule 32-

1(b). We can only infer that Plaintiffs had nothing to say.

5

The dissent also argues that a single, isolated allusion to the legal

standard for municipal liability in the Opening Brief indicates that

Plaintiffs did not intend to abandon this claim on appeal. Dissenting

Op. 72. But we have explained “that we will not ‘consider matters on

appeal that are not specifically and distinctly argued in appellant’s

opening brief,’” United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325,

335 (9th Cir. 2017) (emphasis added) (quoting Christian Legal Soc’y

Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010)).

“Applying this standard, [we have] refused to address claims that were

only ‘argue[d] in passing,’ or that were ‘bare assertion[s] . . . with no

supporting argument,’” Christian Legal Soc’y, 626 F.3d at 487 (citations

omitted) (first alteration added). Though the dissent suggests otherwise,

Plaintiffs’ passing reference to the standard for municipal liability does

not specifically or distinctly address their municipal liability claim. Cf.,

e.g., Kaiser v. Cascade Cap., LLC, 989 F.3d 1127, 1135 n.12 (9th Cir.

2021) (concluding that although a party had “gestured” at a possible

constitutional argument, it “ha[d] forfeited [that] argument by failing to

raise the issue specifically and distinctly in its brief” (citation and

internal quotation marks omitted)).

24 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

In Maciel, for example, a defendant belatedly tried to

preserve a claim that his challenge to a term of parole was

not moot by filing a Federal Rule of Appellate Procedure

28(j) letter shortly before oral argument. 731 F.3d at 932

n.4. But as we explained, the defendant “ha[d] forfeited this

argument by failing to address it in his reply brief even

though the state raised [the issue of] mootness in its

answering brief.” Id. We reaffirmed this principle two years

later in International Brotherhood of Teamsters v. Allegiant

Air, LLC, 788 F.3d 1080 (9th Cir. 2015). There, we held that

the appellant had waived a claim regarding the preclusive

effect of an agency decision by failing to “cite relevant

authority or otherwise press the point” in its reply brief,

despite the fact that the appellee had raised the issue in its

answering brief. See id. at 1090.

Although the dissent attempts to portray our conclusion

as a “novel abandonment theory,” Dissenting Op. 77, this

characterization is grounded in arguments that are

unpersuasive and inconsistent with our case law. For

example, the dissent argues that because reply briefs are

optional, an appellant’s failure to address an issue in its reply

brief cannot provide the basis for an abandonment

determination, even if the appellee has raised the issue in its

answering brief. See id. at 74–75. Of course, Plaintiffs did

file a reply brief in this appeal. More to the point, the

conclusion of the dissent’s argument does not follow from

its premise. Though our rules do not require appellants to

file reply briefs, nothing about that fact suggests that

appellants can avoid the effect of disregarding an argument

presented by the appellee. That is true whether an appellant

fails to file any reply brief or in filing a reply brief fails to

address an issue squarely raised in the appellee’s answering

brief. Indeed, the dissent’s theory is flatly inconsistent with

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 25

our conclusions in Maciel and Allegiant Air. 6 It is, of course,

an appellant’s prerogative not to file a reply brief, or to stay

silent on an issue raised by the appellee in its answering

brief. But it risks abandoning its claim in the process, as our

case law shows. Though the dissent suggests that we are

“creat[ing] potential traps for the unwary,” id. at 29,

monitoring the arguments raised by one’s opponent and

responding as necessary in the reply brief is a basic part of

vigilantly prosecuting an appeal.

The dissent also notes that we have discretion to

overlook a party’s abandonment of an issue and faults us for

not exercising that discretion here. See id. at 79. We are

aware of no case, however, in which our court has gone to

such lengths to rescue a counseled party’s claim under these

circumstances, and the dissent cites none. It is one thing to

overlook a party’s failure to address a claim in its opening

brief, as we did in the cases cited by the dissent. See id. at 79.

It is quite another to overlook a party’s failure to contest an

argument in its reply brief even after it had been squarely

presented in the answering brief. That Plaintiffs wanted to

maintain their claim for municipal liability does not, as the

dissent suggests, merit a favorable exercise of discretion.

See id. at 80. 7 If that were the case, no claim would ever be

subject to dismissal.

6

Relatedly, the dissent cites the fact that we do not have “legions of

cases finding abandonment of claims on appeal through ‘incomplete’

reply briefs” as evidence that our abandonment determination is wrong.

Dissenting Op. 75. But we do not require “legions” of cases to establish

precedent. Maciel and Allegiant Air are sufficient.

7

As the dissent acknowledges, at 80, a party cannot resuscitate at

oral argument an abandoned claim that “was not presented in the

briefs[.]” United States v. Juvenile Male, 670 F.3d 999, 1014–15 (9th

26 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

We are similarly unpersuaded by the dissent’s argument

that Plaintiffs did not abandon their municipal liability claim

because they did not “choose[] a position that removes the

[municipal liability] issue from the case.’” Id. at 70 (citation

omitted). Even assuming this standard applies under the

posture of this case, 8 remaining silent on an issue in the reply

brief after an appellee has raised the issue in its answering

Cir. 2012); see also, e.g., Recycle for Change v. City of Oakland,

856 F.3d 666, 673 (9th Cir. 2017) (noting that arguments raised for the

first time during oral argument will not be considered).

8

The dissent’s argument relies on inapposite law that has never been

applied under the posture before us. In BankAmerica Pension Plan v.

McMath, 206 F.3d 821 (9th Cir. 2000), we stated that “[a] party abandons

an issue when it has a full and fair opportunity to ventilate its views with

respect to an issue and instead chooses a position that removes the issue

from the case.” Id. at 826. But the test articulated in BankAmerica

applies to scenarios in which a party has abandoned a claim in the

proceedings below and then tries to revive that claim on appeal. See id.

(“[I]t is a general rule that a party cannot revisit theories that it raises but

abandons at summary judgment.” (citation omitted)). That was the

posture in BankAmerica, see id., and the case on which it relied for the

cited proposition, see USA Petroleum Co. v. Atlantic Richfield Co.,

13 F.3d 1276, 1283–84 (9th Cir. 1994).

We have invoked BankAmerica for the proposition cited in eight

published opinions. Every one of those cases involved a situation in

which a party had arguably abandoned a claim in the proceedings below

and then sought to revive it on appeal. See Manikan v. Peters &

Freedman, L.L.P., 981 F.3d 712, 718 (9th Cir. 2020); Echlin v.

PeaceHealth, 887 F.3d 967, 979 (9th Cir. 2018); Coomes v. Edmonds

Sch. Dist. No. 15, 816 F.3d 1255, 1261 n.4 (9th Cir. 2016); Walker v.

Beard, 789 F.3d 1125, 1132–34 (9th Cir. 2015); Ramirez v. City of Buena

Park, 560 F.3d 1012, 1026 (9th Cir. 2009); Davis v. City of Las Vegas,

478 F.3d 1048, 1058–59 (9th Cir. 2007); Pardi v. Kaiser Found. Hosps.,

389 F.3d 840, 848 n.4 (9th Cir. 2004); Montero-Martinez v. Ashcroft,

277 F.3d 1137, 1145 n.9 (9th Cir. 2002). That is not the case here, where

Plaintiffs did litigate the argument below but then failed to discuss it on

appeal before us.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 27

brief is in our view “choos[ing] a position that removes the

issue from the case.” Id. For the reasons discussed above,

Plaintiffs’ failure to respond to the College District’s

municipal liability argument in their Reply Brief is a

textbook case of abandonment.

2. Plaintiffs Failed to State a Claim for Municipal

Liability

Even if Plaintiffs had not abandoned their municipal

liability claim, however, this claim could not survive

dismissal under Rule 12(b)(6). Under Monell, plaintiffs

suing a municipal entity for damages under 42 U.S.C. § 1983

“must show that their injury was caused by a municipal

policy or custom.” Los Angeles County v. Humphries,

562 U.S. 29, 30–31 (2010). To state a claim against the

College District, then, Plaintiffs must allege “a deliberate

choice to follow a course of action . . . by the official or

officials responsible for establishing final policy with

respect to the subject matter in question.” Pembaur v. City

of Cincinnati, 475 U.S. 469, 483 (1986).

Plaintiffs could satisfy Monell’s policy requirement in

one of three ways. First, the College District may be held

liable if it acted “pursuant to an expressly adopted official

policy.” Gordon v. County of Orange, 6 F.4th 961, 973 (9th

Cir. 2021) (citation omitted). Second, the College District

may be held liable based on a “longstanding practice or

custom.” Id. (citation omitted). Third, the College District

may be held liable if “the individual who committed the

constitutional tort was an official with final policy-making

authority or such an official ratified a subordinate’s

unconstitutional decision or action and the basis for it.” Id.

at 974 (citation and internal quotation marks omitted).

28 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

A plausible reading of the Complaint suggests that

Plaintiffs attempt to invoke the latter two grounds for Monell

liability. That is, the assertion that Damask taught his World

Politics course for 24 years appears to be an allegation that

the College District had a “longstanding practice and

custom” of teaching the disapproval of Islam. Plaintiffs also

allege, more explicitly, that Damask acted as a “final

policymaker” for the College District and/or that his actions

were ratified by such a policymaker. Neither allegation,

however, is sufficient to state a Monell claim.

Establishing municipal liability through the existence of

a longstanding practice or custom is predicated “on the

theory that the relevant practice is so widespread as to have

the force of law.” Bd. of Comm’rs v. Brown, 520 U.S. 397,

404 (1997); see also Trevino v. Gates, 99 F.3d 911, 918 (9th

Cir. 1996) (noting that the practice must be so “persistent

and widespread” that it amounts to “permanent and well

settled” municipal policy (citation omitted)). Thus, an entity

may be held liable under this theory, for example, where it

“fails to implement procedural safeguards to prevent

constitutional violations” or “fails to train its employees

adequately.” Gordon, 6 F.4th at 973 (citations and alteration

omitted). By contrast, Plaintiffs cannot allege a widespread

practice or custom based on “isolated or sporadic incidents;

[liability] must be founded upon practices of sufficient

duration, frequency and consistency that the conduct has

become a traditional method of carrying out policy.”

Trevino, 99 F.3d at 918; see also Christie v. Iopa, 176 F.3d

1231, 1235 (9th Cir. 1999) (“A single constitutional

deprivation ordinarily is insufficient to establish a

longstanding practice or custom.”).

Here, although Plaintiffs allege that Damask has taught

his World Politics class for 24 years, they do not allege that

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 29

the course in other years contained the same content that

offended Sabra, or that Damask’s views or teaching methods

are so persistent and widespread as to constitute part of the

College District’s “standard operating procedure.” Ulrich v.

City & County of San Francisco, 308 F.3d 968, 984 (9th Cir.

2002). They do not allege, for example, that Damask’s

Islamic Terrorism module has been incorporated as a

standard part of the political science curriculum at the

College, or that other professors throughout the College

District subject students to similar views or teaching

methods. Without an allegation that Damask’s allegedly

unconstitutional acts constitute a “permanent and well

settled policy” embraced by the municipal entity, Plaintiffs

have alleged little more than “isolated or sporadic incidents”

that are insufficient to establish Monell liability. Trevino,

99 F.3d at 918. 9

Plaintiffs’ other theories of municipal liability fail for the

same or similar reasons. For example, the Complaint also

alleged that because Damask served as the “Social and

Behavioral Sciences Evening / Summer Department Chair”

at the College, he engaged in the allegedly unconstitutional

9

The dissent admonishes us for “expect[ing] Sabra to have pleaded

the details that [we] claim[] are missing.” Dissenting Op. 82. But we do

not suggest that the hypothetical allegations above are the only ones that

could suffice to state a plausible municipal liability claim. We offer

these merely as examples of the type of allegation that might have

“nudged [Plaintiffs’] claims across the line from conceivable to

plausible,” Bell At. Corp. v. Twombly, 550 U.S. 544, 570 (2007). And

though the dissent maintains that we are being “improperly stringent at

the motion to dismiss stage[,]” Dissenting Op. 81, the standard for

pleading municipal liability is not a low bar, see, e.g., Mansfield v.

Williamson County, 30 F.4th 276, 279 (5th Cir. 2022) (“The causal

connection required for Monell liability is demanding.”); Dean v.

Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021) (noting

Monell’s “rigorous causation standard” (citation omitted)).

30 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

conduct as the College District’s “final policymaker,” and

thus, his actions were attributable to the District.

It is true that “a municipality can be liable for an isolated

constitutional violation when the person causing the

violation has final policymaking authority.” Christie,

176 F.3d at 1235 (citation and internal quotation marks

omitted). “To determine whether a [municipal] employee is

a final policymaker, we look first to state law.” Lytle v. Carl,

382 F.3d 978, 982 (9th Cir. 2004). Although “[a] municipal

employee may act as a de facto policymaker under § 1983

without explicit authority under state law, . . . we are

ordinarily not justified in assuming that municipal

policymaking authority lies somewhere else than where the

applicable law purports to put it.” Id. at 982–83 (citation and

internal quotation marks omitted).

In this case, Arizona law designates a community college

district’s board as the body responsible for “[a]dopt[ing]

policies . . . to offer programs that meet the educational

needs of the population served by the community college[,]”

Ariz. Rev. Stat. Ann. § 15-1444, and “[e]stablish[ing]

curricula and designat[ing] courses that in its judgment will

best serve the interests of th[e] state,” id. § 15-1445. While

a final policymaker can delegate its authority to other

officials, see, e.g., Lytle, 382 F.3d at 984; Christie, 176 F.3d

at 1236, Plaintiffs do not allege that such a delegation took

place here. Indeed, even in their district court briefing,

Plaintiffs produced no authority to suggest that a professor

becomes a “final policymaker” for an entire community

college district simply by assuming administrative

responsibilities within his department, cf. Lytle, 382 F.3d

at 983 (“For a person to be a final policymaker, he or she

must be in a position of authority such that a final decision

by that person may appropriately be attributed to the

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 31

[municipal entity].”), nor have we located any such authority

ourselves.

Finally, Plaintiffs allege that the College District “knew

or had constructive knowledge” that Damask was teaching

the disapproval of Islam, and “not only condoned the

material but approved of its use in the classroom.” This

theory of municipal liability is predicated on the allegation

that under a College District regulation, professors must

submit a copy of their course syllabus to the relevant

“division/department office at the college no later than the

end of the first week of class.” But while “[a] municipality

. . . can be liable for an isolated constitutional violation if the

final policymaker ‘ratified’ a subordinate’s actions, . . . [t]o

show ratification, a plaintiff must prove that the ‘authorized

policymakers approve[d] a subordinate’s decision and the

basis for it.’” Christie, 176 F.3d at 1238–39 (quoting City of

St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)).

Ratification requires, “among other things, knowledge of the

alleged constitutional violation.” Id. at 1239.

Here, the Complaint does not plausibly allege that a final

policymaker had knowledge (actual or constructive) of the

offending course material and then sanctioned its use in the

classroom. Although the cited regulation indicates that the

academic department was to receive a copy of the syllabus

no later than a week after class had begun, Plaintiffs do not

allege that a final policymaker for the College District was

charged with reviewing the syllabus for this course or any

other, let alone approving or disapproving of their content.

We therefore conclude that Plaintiffs failed to state a

municipal liability claim against the College District.

Although in other circumstances Plaintiffs might be given

another opportunity to present a pleading that contained

more substantial allegations, that is not necessary in this

32 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

instance because, as described above, Plaintiffs abandoned

their municipal liability claim by failing to present

arguments in support of it on appeal.

C. Qualified Immunity Shields Damask From

Liability for Plaintiffs’ Establishment Clause and

Free Exercise Claims

The district court concluded that Damask was shielded

from liability under the doctrine of qualified immunity, as

there was no case law clearly establishing that his conduct

was unconstitutional at the time of the alleged offense.

While conceding that there is no case law clearly

establishing the unconstitutionality of Damask’s conduct,

Plaintiffs argue that this case presents the rare circumstance

in which “the constitutional violation is so ‘obvious’ that

prior case law is not needed.”

The doctrine of qualified immunity “shields government

officials performing discretionary functions 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.” Saved Mag. v.

Spokane Police Dep’t, 19 F.4th 1193, 1198 (9th Cir. 2021)

(citation and internal quotation marks omitted). A federal or

state official is entitled to qualified immunity “unless a

plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Following

the Supreme Court’s decision in Pearson v. Callahan,

555 U.S. 223 (2009), we are “permitted to exercise [our]

sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light

of the circumstances in the particular case at hand,” id.

at 236. “Addressing the second prong before the first is

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 33

especially appropriate where ‘a court will rather quickly and

easily decide that there was no violation of clearly

established law.’” Jessop v. City of Fresno, 936 F.3d 937,

940 (9th Cir. 2019) (quoting Pearson, 555 U.S. at 239); see

also C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist.,

654 F.3d 975, 978 (9th Cir. 2011).

A right is “clearly established” for purposes of the

second prong of the qualified immunity analysis if, “at the

time of the challenged conduct, the contours of [the] right

are sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.”

al-Kidd, 563 U.S. at 741 (citation, internal quotation marks,

and alterations omitted); see also Ballou v. McElvain,

14 F.4th 1042, 1049 (9th Cir. 2021) (explaining that

“[c]onduct violates a ‘clearly established’ right if the

unlawfulness of the action in question is apparent in light of

some pre-existing law” (citation, alteration, and some

internal quotation marks omitted)). “We do not require a

case directly on point, but existing precedent must have

placed the statutory or constitutional question beyond

debate.” Jessop, 936 F.3d at 940 (quoting al-Kidd, 563 U.S.

at 741). “This demanding standard protects all but the

plainly incompetent or those who knowingly violate the

law.” Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021)

(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018)). To determine whether rights are clearly established,

“we look to then-existing cases of controlling authority or,

absent such cases, to a consensus of persuasive authorities.”

J.K.J. v. City of San Diego, 17 F.4th 1247, 1259 (9th Cir.

2021) (citation and internal quotation marks omitted).

Because we conclude that the “clearly established”

prong is dispositive in this case, we need not address

whether, under the facts alleged in the Complaint, Damask

34 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

violated Sabra’s constitutional rights. See Jessop, 936 F.3d

at 940. As we explain below, we have never held that actions

like the ones challenged in this case constitute a violation of

the Establishment Clause or Free Exercise clause. Nor is this

the exceptional case where the alleged constitutional

violation is so obvious as to obviate the need for a case on

point. The context of this case weighs heavily against any

argument that the violation is obvious. In support of their

defense, Defendants present arguments based on “long-held

protections of academic freedom,” again starting on page

one of their Answering Brief. There are powerful forces on

both sides of this debate. Finally, while courts sometimes

hesitate to dismiss a plaintiff’s claims based on qualified

immunity at the motion-to-dismiss stage, the concerns that

might ordinarily justify such hesitancy are absent in this

case.

1. Plaintiffs’ Establishment Clause Claim

When the events giving rise to this action occurred, the

touchstone of our Establishment Clause jurisprudence was

the framework set forth in Lemon v. Kurtzman, 403 U.S. 602

(1971). Under the so-called Lemon test, a government

practice could satisfy the Establishment Clause only if, in

part, “its principal or primary effect [was] one that neither

advance[d] nor inhibit[ed] religion.” Freedom From

Religion Found. v. Chino Valley Unified Sch. Dist. Bd. of

Educ., 896 F.3d 1132, 1149 (9th Cir. 2018) (quoting Lemon,

403 U.S. at 612–13). During the half century in which we

applied this test, we never held that a teacher or curriculum’s

perceived criticism of a religion has the primary effect of

inhibiting religion in violation of the Establishment Clause.

In Farnan, for example, a high school history teacher had

made several pointed remarks disparaging religion during

class lectures. See 654 F.3d at 979–81. Affirming the

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 35

district court’s conclusion that the instructor was entitled to

qualified immunity, we observed that “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.” Id. at 986. “Because

it [was] readily apparent that the law was not clearly

established at the time of” the alleged constitutional

violation, and “because we [could] resolve the appeal on that

basis alone,” we declined to decide whether the teacher’s

actions violated the Establishment Clause. Id. at 978. Since

Farnan was decided, none of our cases has found an

Establishment Clause violation under comparable

circumstances, and Plaintiffs concede that there is no “pre-

existing case-law which establishes the unlawfulness of

[Damask’s] action beyond reasonable debate.”

We recognize that the Supreme Court’s recent decision

in Kennedy v. Bremerton School District, 597 U.S. ___

(2022), has called into doubt much of our Establishment

Clause case law, at least to the extent that law relies on

Lemon. In Kennedy, which came down several months after

this case was argued and submitted, the Court recognized

that Lemon had been overruled and abandoned what it

described as Lemon’s “‘ambitious,’ abstract, and ahistorical

approach to the Establishment Clause.” Slip Op. at 22

(alteration adopted) (citation omitted). Instead of relying on

the Lemon test, lower courts must now interpret the

Establishment Clause by “reference to historical practices

and understandings.” Id. at 23 (citation and internal

quotation marks omitted). Going forward, “the line that

courts and governments must draw between the permissible

and the impermissible has to accord with history and

faithfully reflect the understanding of the Founding

Fathers.” Id. (citation, alterations, and internal quotation

marks omitted). But while the analysis prescribed by

36 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

Kennedy marks a shift in the Court’s Establishment Clause

jurisprudence, it does not alter the conclusion of our

qualified immunity analysis in this case, which is concerned

with “the state of the law at the time of [the alleged

constitutional violation].” Jessop, 936 F.3d at 940 (citation

and internal quotation marks omitted). Here, for reasons

already discussed, the law did not clearly establish that

Damask’s actions violated the Establishment Clause at the

time Sabra was enrolled in his course.

Although Plaintiffs concede that there are no cases

clearly establishing the alleged violation in this case, they

argue that Damask is not entitled to qualified immunity for

two different reasons. First, they argue that this is one of the

exceptional cases in which a prior case (or body of case law)

is not needed to clearly establish the right in question. We

have recognized that there are “rare cases in which the

constitutional right at issue is defined by a standard that is so

‘obvious’ that we must conclude . . . that qualified immunity

is inapplicable, even without a case directly on point.”

Jessop, 936 F.3d at 942 (citation omitted) (alteration in

original); see also Wesby, 138 S. Ct. at 590 (“Of course,

there can be the rare ‘obvious case,’ where the unlawfulness

of the officer’s conduct is sufficiently clear even though

existing precedent does not address similar

circumstances.”). But we have repeatedly emphasized that

such cases are few and far between, see, e.g., Sharp v.

County of Orange, 871 F.3d 901, 911–12 (9th Cir. 2017),

and thus, we are hesitant to find a right clearly established

without a body of relevant case law.

Contrary to Plaintiffs’ assertion, this is not the

exceptional case in which the alleged constitutional violation

is “obvious” despite the absence of relevant case law. As an

initial matter, Plaintiffs’ argument frames the relevant

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 37

constitutional right at too high a level of generality. In their

briefing below and on appeal, Plaintiffs have described the

constitutional right in question as Sabra’s right to be free

from messages that are “disapproving” of his religion. The

Supreme Court has “repeatedly stressed,” however, “that

courts must not define clearly established law at a high level

of generality, since doing so avoids the crucial question

whether the official acted reasonably in the particular

circumstances that he or she faced.” Wesby, 138 S. Ct. at

590 (citation and internal quotation marks omitted). Here,

Plaintiffs’ “overbroad proposition, ‘cast at a high level of

generality,’ is just the sort of sweeping statement of the law

that is inappropriate for assessing whether qualified

immunity applies.” Farnan, 654 F.3d at 987 (quoting

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per

curiam)).

Plaintiffs’ argument also overlooks several contextual

factors that make the alleged violation less than obvious. For

example, the challenged content was not only taught in a

college course, but also made up a fragment of a single

module that was itself just one-sixth of the course.

Moreover, the offending content did not arise in a vacuum.

It was part of a module that sought to explain the

phenomenon of Islamic terrorism. Thus, Plaintiffs’

allegation that Damask devoted insufficient attention to

other terror movements is largely beside the point and does

not explain why his alleged constitutional violation was

obvious. Finally, although Plaintiffs allege that Damask

made a number of inflammatory and false statements about

Islam in his PowerPoint slides, it is plausible that Damask

was attempting to describe the views and interpretations of

Islamic extremists, as opposed to his own, subjective

opinions. Though the offending slides could have benefitted

from more precise language, clearer attribution, and better

38 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

use of citations, the ambiguity here undercuts the notion that

Damask’s alleged constitutional violation was obvious. To

be clear, in concluding that Damask is entitled to the benefit

of qualified immunity, we do not express agreement with or

endorse the substance of his teaching, but he is protected by

qualified immunity against the Establishment Clause

allegations stated in Plaintiffs’ Complaint.

Plaintiffs’ second argument is that, even if the

constitutional right violated by Damask was not clearly

established by a relevant case or body of case law, it was

clearly established by a “fact sheet” prepared by the U.S.

Department of Education and U.S. Department of Justice.

Relying on our decision in Hardwick v. County of Orange,

844 F.3d 1112 (9th Cir. 2017), Plaintiffs argue that we may

look to agency guidance and statements when deciding

whether a right is clearly established for purposes of

qualified immunity.

In Hardwick, however, we consulted non-decisional

authority (a state statute) only as a form of supplementary

support for a predicate finding that a particular right was

clearly established. See 844 F.3d at 1118–20. The predicate

finding itself was based on case law. See id. Likewise, in

Hope v. Pelzer, 536 U.S. 730 (2002), the case on which

Hardwick relied, the Supreme Court concluded that a

constitutional right was clearly established based in part on

a regulation issued by the defendants’ employer, as well as a

report, prepared by the Department of Justice, specifically

advising the employer that the conduct in question was

unconstitutional, id. at 743–45. But again, this non-

decisional authority was used to “buttress[]” a predicate

finding, based on case law, that the constitutional right in

question was clearly established. See id. at 741–43. Neither

Hardwick nor Hope stands for the proposition that an agency

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 39

“fact sheet,” without more, is sufficient to clearly establish a

constitutional right.

In any event, the fact sheet cited by Plaintiffs would not

have put Damask on notice that his conduct was

unconstitutional. Damask did not single out Sabra and

demand that he explain “why Muslims have not denounced

the terrorist attacks of 9/11,” as was true in the example of

unconstitutional conduct cited by the fact sheet. Thus, even

if we could rely solely on non-decisional authority to

conclude that a constitutional right was clearly established,

the fact sheet does not “‘squarely govern[]’ the specific facts

at issue” in this case. Kisela v. Hughes, 138 S. Ct. 1148,

1153 (2018) (per curiam) (citation omitted).

“Mindful that there has never been any prior reported

case holding that a teacher violated the Constitution under

comparable circumstances,” Farnan, 654 F.3d at 978, we

affirm the district court’s conclusion that qualified immunity

shields Damask from liability on Plaintiffs’ Establishment

Clause claim.

2. Plaintiffs’ Free Exercise Claim

Plaintiffs’ Free Exercise claim fares no better under the

“clearly established” prong of our qualified immunity

analysis.

To state a claim under the Free Exercise Clause, a

plaintiff must show that a government practice “substantially

burdens a religious practice and either is not justified by a

substantial state interest or is not narrowly tailored to

achieve that interest.” Am. Family Ass’n v. City & County

of San Francisco, 277 F.3d 1114, 1123 (9th Cir. 2002).

Again, though, we have never held under comparable

circumstances that a test requiring students to select answers

40 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

in conflict with their personal religious convictions (or risk

losing points) imposes a substantial burden on religious

practice. Indeed, the most instructive authority we have

identified goes the other way. See Wood v. Arnold, 915 F.3d

308, 318–19 (4th Cir. 2019) (concluding that an assignment

which required the student to fill in two missing words of the

shahada, an Islamic declaration—which states, “[t]here is no

god but Allah and Muhammad is the messenger of Allah”—

did not compel the student, a Christian, “to profess or accept

the tenets of Islam,” but was merely “an academic exercise

[requiring the student] to demonstrate her understanding of

the world history curriculum”). 10 As with their

Establishment Clause claim, Plaintiffs concede that there is

no case, or body of case law, that clearly establishes Sabra’s

right not to be subjected to a quiz like the one in this case.

The absence of such authority is an inescapable feature

of this case, and one that dooms Plaintiffs’ Free Exercise

10

Although Wood involved a Free Speech claim rather than a Free

Exercise claim, its factual similarity and reasoning are instructive in this

case. In Wood, the plaintiff argued that “the curriculum implemented

and supervised by [d]efendants compelled [her] to confess by written

word and deed her faith in Allah,” 915 F.3d at 318–19 (first alteration in

original), much as Sabra contends that Damask’s multiple-choice quiz

forced him to adopt views at variance with his religious convictions.

Although the claim in Wood was predicated on a theory of compelled

speech, i.e., that the plaintiff was being forced “to utter . . . speech

bearing a particular message,” id. at 319 (citation omitted), the claim is

analogous (albeit not identical) to the claim Sabra has brought under the

Free Exercise Clause. Given these patent factual parallels, we do not

agree with the dissent’s view that “[t]he facts of Wood . . . bear no

material resemblance to Damask’s quiz questions[,]” Dissenting Op. 91.

More to the point, however, even if the dissent finds Wood less

instructive than we do, it has failed to identify any case that is more

apposite than this, let alone one that would “‘squarely govern[]’ the

specific facts at issue” in this case. Kisela, 138 S. Ct. at 1153 (citation

omitted).

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 41

claim under the second prong of the qualified immunity

analysis. Although the dissent tries to find a way around this

problem, the solution it lands upon is to frame the clearly

established law at a high level of generality, an error against

which the Supreme Court has cautioned repeatedly. See al-

Kidd, 563 U.S. at 742 (“We have repeatedly told courts—

and the Ninth Circuit in particular—not to define clearly

established law at a high level of generality.” (citation

omitted)).

In the dissent’s view, the clearly established

constitutional principle is “that the state cannot condition a

benefit or impose a penalty based on a person’s adherence or

non-adherence to a religious belief.” Dissenting Op. 90.

Framing the constitutional principle in such general terms,

however, “avoids the crucial question whether the official

acted reasonably in the particular circumstances that he or

she faced.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014).

Instead, our inquiry into whether a particular right is clearly

established “must be undertaken in light of the specific

context of the case, not as a broad general proposition.”

Brosseau, 543 U.S. at 198 (citation omitted). Recently, for

example, we concluded that although the right “to be free

from sexual harassment by public officials in the workplace

and school contexts” was clearly established under our prior

case law, we had “never held that the Equal Protection

Clause protects private individuals who suffer sexual

harassment at the hands of public officials providing them

with social services.” Sampson v. County of Los Angeles ex

rel. L.A. Cnty. Dep’t of Child. & Fam. Servs., 974 F.3d 1012,

1024 (9th Cir. 2020). Because our law had not “placed the

constitutional question beyond debate . . . in the particular

context” of the case before us, we held that the constitutional

right in question was not clearly established at the time of

the alleged violation. Id. at 1024 & n.10 (emphasis added).

42 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

By contrast, the dissent’s framing of the relevant

constitutional right in this case omits any consideration of

“the specific context of the case,” Brosseau, 543 U.S. at 198,

and would vitiate the protections of qualified immunity by

allowing plaintiffs to allege violations of an “extremely

abstract right[,]” White v. Pauly, 137 S. Ct. 548, 552 (2017)

(citation omitted).

Perhaps anticipating this critique, the dissent makes two

additional points that merit a response. In response to our

conclusion that there are no cases putting Damask on notice

that his conduct might be unconstitutional under the

circumstances here, the dissent observes that “no specific

case on point is required.” Dissenting Op. 90 (citing Sharp,

871 F.3d at 911 n.7). To the extent the dissent means to

suggest that this is “one of those rare cases in which the

constitutional right at issue is defined by a standard that is so

‘obvious’ that we must conclude that qualified immunity is

inapplicable,” even without a relevant case or body of case

law, see Jessop, 936 F.3d at 942 (citation and ellipsis

omitted); see also Sharp, 871 F.3d at 911–12, that argument

is unpersuasive for reasons we discuss below. To the extent

the dissent suggests we are impermissibly demanding a case

“directly on point,” al-Kidd, 563 U.S. at 741, that is not true

either. Although no such case is required, “existing

precedent must have placed the statutory or constitutional

question beyond debate.” Id. Thus, the Supreme Court has

chided lower courts for “fail[ing] to identify a case where an

officer acting under similar circumstances . . . was held to

have violated” the relevant constitutional provision. White,

137 S. Ct. at 552. For all its spirited criticism of our

conclusion, the dissent has not furnished a single case

recognizing a Free Exercise violation under facts remotely

similar to this case, let alone one that “squarely governs the

case here[.]” Brosseau, 543 U.S. at 201.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 43

The dissent also theorizes that the “level of generality”

problem is less of an issue here than it is in cases involving

“more open-ended constitutional rights” such as the right not

to be arrested without probable cause. Dissenting Op. 86. It

is unclear where this proposed distinction comes from or

what its doctrinal basis might be. The dissent cites no

authority for this theory, and we have not located a Supreme

Court or Ninth Circuit decision that would support that

proposition. As far as we can discern, the Supreme Court’s

admonition to avoid framing clearly established rights at a

high level of generality is not limited to “open-ended” rights,

whatever those may be. That such a limitation has not been

recognized comes as no surprise, for what makes a right

more or less open-ended is unclear. 11 The standard

described by the dissent is so vague and indeterminate as to

justify any result, making principled, consistent application

hopeless.

Without a case or body of case law clearly establishing

the constitutional right in question, Plaintiffs resort to

arguing that the violation was so obvious as to eliminate the

need for such authority. But this is not one of those “rare

cases.” Sharp, 871 F.3d at 912. Even accepting as true the

allegations in Plaintiffs’ Complaint, the purpose and effect

of the quiz are susceptible to interpretation. Although

Plaintiffs argue that it “forced Sabra to disavow his faith and

adopt” views “antithetical” to his religious convictions, it is

11

It is not at all clear that the Free Exercise Clause’s “anti-penalty

and anti-hostility principles” are “more precisely defined at the outset”

than, say, the right not to be arrested without “probable cause,” as the

dissent argues. See Dissenting Op. 86 & n.5. As with probable cause,

the concepts of “hostility” and a “penalty” can be defined at widely

varying levels of generality. There is no basis to suggest that we need

less case law to define the contours of the Free Exercise principles at

issue in this case than we do in the context of other constitutional rights.

44 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

also plausible to interpret the quiz as the district court did. 12

The district court concluded that Sabra “was not required to

adopt the views expressed by Dr. Damask or the authors

Dr. Damask cited to in his course, but only to demonstrate

an understanding of the material taught.” Regardless of

whether the quiz violated the Free Exercise clause—a

question we need not decide to resolve this claim under

prong two of the qualified immunity analysis—any such

violation was far from “obvious.”

Accordingly, we conclude that Damask is also entitled to

qualified immunity with respect to Plaintiffs’ Free Exercise

claim. 13

3. Qualified Immunity at the Motion to Dismiss

Stage

The Supreme Court has “repeatedly . . . stressed the

importance of resolving immunity questions at the earliest

possible stage in litigation.” Dunn v. Castro, 621 F.3d 1196,

1199 (9th Cir. 2010) (alteration in original) (quoting Hunter

12

By offering this observation, we are not, as the dissent suggests,

“drawing inferences in favor of the [D]efendants.” Dissenting Op. 84.

We are merely noting that, even taking all of Plaintiffs’ allegations as

true, the alleged violation is not so obvious as to make this the “rare

case[]” in which a constitutional right is clearly established even without

a body of relevant case law. Jessop, 936 F.3d at 942.

13

The dissent observes that we have not “openly dispute[d]” its

conclusion that Plaintiffs have stated a Free Exercise claim. Dissenting

Op. 83. But we have no reason to dispute such a conclusion where, as

here, we can dispose of a claim based on the second prong of our

qualified immunity analysis. See Jessop, 936 F.3d at 940. In light of our

conclusion that Damask is entitled to qualified immunity, we need not,

and do not, take any position as to the merits of Plaintiffs’ Free Exercise

claim.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 45

v. Bryant, 502 U.S. 224, 227 (1991)). That is because

qualified immunity gives government officials “a right, not

merely to avoid standing trial, but also to avoid the burdens

of such pretrial matters as discovery.” Id. (internal quotation

marks omitted) (quoting Behrens v. Pelletier, 516 U.S. 299,

308 (1996)).

It is true that resolving claims of qualified immunity at

the motion-to-dismiss stage can sometimes present “special

problems for legal decision making,” Keates v. Koile,

883 F.3d 1228, 1234 (9th Cir. 2018), particularly when we

are “aided only by the skeletal . . . factual picture sketched

out in the complaint,” Wong v. United States, 373 F.3d 952,

956 (9th Cir. 2004). Thus, it is understandable that district

courts sometimes delay a decision on qualified immunity

until the parties have had the opportunity to develop a more

comprehensive factual record. See O’Brien v. Welty,

818 F.3d 920, 936 (9th Cir. 2016) (observing that a Rule

12(b)(6) dismissal based on qualified immunity “is not

appropriate unless we can determine, based on the complaint

itself, that qualified immunity applies” (citation omitted)).

In this case, though, there are two unique features that

obviate the concern over resolving qualified immunity

claims prior to discovery.

First, Plaintiffs attached substantial documentary

evidence to their Complaint, including the allegedly

offending slides; the assigned reading excerpt from Future

Jihad; screenshots of the full end-of-module quiz; the World

Politics course syllabus; screenshots of Sabra’s

correspondence with Damask following his completion of

the quiz; and screenshots of the College’s statement posted

to Instagram. We therefore have access to the allegedly

offending course material that forms the sum and substance

of Plaintiffs’ claims, as well as other materials that serve to

46 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

contextualize Plaintiffs’ factual allegations. These are

precisely the materials that ordinarily would have been

produced in discovery.

Second, Damask’s World Politics course was a self-

guided course administered entirely online. The PowerPoint

slides, assigned readings, and end-of-module quizzes made

up the entirety of the course. There were no lectures,

discussion groups, or other pedagogical components beyond

the materials described in the Complaint. In other words, we

have before us the universe of evidence we might wish to

consider in resolving Damask’s claim of qualified immunity.

Discovery would not serve to sharpen our understanding of

the factual picture in this case.

Even if discovery somehow were to produce additional

relevant evidence, it is difficult to conceive of evidence that

would alter the result in this case. As discussed, we have

found no cases that would have put Damask on notice that

his conduct might be unconstitutional under the

circumstances here. No matter what we might learn in

discovery, then, Damask would still be shielded by qualified

immunity. 14 Postponing our qualified immunity decision

until the summary judgment stage would only consume

14

The dissent takes a more optimistic view as to the fruitfulness of

discovery in this case. See Dissenting Op. 88. But even if that is correct,

the dissent has not explained what we might learn in discovery that

would deprive Damask of qualified immunity. There is good reason to

sidestep that question, for such an outcome would require a case (or body

of case law) that clearly establishes the unlawfulness of Damask’s

actions under the “particular circumstances” in this case. Plumhoff,

572 U.S. at 779. The dissent has not identified a single case that would

serve this function.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 47

additional time, expense, and judicial resources, without any

realistic possibility that the outcome would change.

Accordingly, although we conclude that CAIR-AZ has

organizational standing, we affirm the district court’s

dismissal of this action.

AFFIRMED.

VANDYKE, Circuit Judge, concurring:

I agree with the majority opinion and join it. I write to

respond to Judge Bress’s position that qualified immunity is

inappropriate here because Sabra’s Free Exercise claim is

clearly established. In reality, Sabra’s Free Exercise claim—

whether it might ultimately succeed or not—is fraught with

difficulties, which is why no claim like it has ever, to my

knowledge, been squarely addressed by any court. The only

thing clearly established about that claim is that nothing

about it is clearly established.

I also write separately to briefly note our court’s

misguided approach to organizational standing.

I. Qualified Immunity

“The doctrine of qualified immunity shields officials

from civil liability so long as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Mullenix v. Luna,

577 U.S. 7, 11 (2015) (cleaned up). A clearly established

right is one that is “sufficiently clear that every reasonable

official would have understood that what he is doing violates

that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012)

48 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

(cleaned up). The Supreme Court “ha[s] repeatedly told

courts—and the Ninth Circuit in particular—not to define

clearly established law at a high level of generality,”

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (cleaned up),

as doing so would “convert the rule of qualified immunity

. . . into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights,” Anderson v.

Creighton, 483 U.S. 635, 639 (1987).

Notwithstanding this “demanding standard,” District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018), our

dissenting colleague defines a constitutional violation at a

level so abstract that it becomes difficult to identify any clear

limit to its application. The dissent would make it a

constitutional violation for instructors such as Professor

Damask to teach and test about their controversial opinions,

but presumably only where those opinions are “crude,”

“wayward,” “gross misconceptions,” “offensive,” or

“denigrating” or “hostile” to a religion. Whatever one thinks

of Professor Damask’s course content, there are serious

concerns with relying on a judge’s subjective views of the

Professor’s possible motives as authorizing the judiciary to

use one part of the First Amendment to cannibalize another.

How we would proceed on the merits, if we needed to, in

this challenging area is a very hard question; the only thing

clear to me is that it would not be appropriate for our analysis

to turn on our own personal views about whether what

Professor Damask taught was too “offensive” or “hostile.”

According to the dissent, “the two offending [multiple-

choice] questions put Sabra to a facially invalid choice

between disaffirming his religious beliefs or receiving a

lower grade.” And so Sabra was “forced to ratify [Professor

Damask’s] views or face a tangible detriment.” For this

reason, the dissent “would have held that Sabra stated a Free

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 49

Exercise Clause claim and remanded for the parties to

engage in discovery.” To drive this point home, the dissent

encourages everyone to “imagine multiple-choice questions

such as these being posed to us based on what we would

regard as gross misconceptions of our own religions.”

This is always good advice, especially for judges. It

never hurts to ask ourselves whether we could live with the

rule we are applying in a case if it was our ox being gored.

I’m a Christian, so I’ll craft the hypothetical accordingly:

The Bible instructs followers of Christ to “hate [their] father

and mother, wife and children, [and] brothers and sisters.”

Luke 14:26 (NIV). Obviously, many people—including

most (if not all) Christians, myself included—would not

interpret this passage in isolation to represent an accurate

statement of Christian doctrine about loving your family.

But a “wayward” professor could certainly rely on it to

support an “offensive” view that the Bible directly teaches

that all Christians must hate their families—full stop. That

same professor, having taught that controversial view, might

require his students to answer the following multiple-choice

question on a graded quiz:

Where does the Bible instruct Christians to

hate their families?

A. The Gospel of Luke

B. The Epistle to the Hebrews

C. The Book of Deuteronomy

D. Hating one’s family is not taught in the

Bible.

50 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

Christian students (myself included) may strongly believe

the correct answer is D, but according to the professor, the

correct answer would be A.

This hypothetical demonstrates several salient points.

Among them, just as most people view terrorism as very bad,

the same could be said of hating one’s family. 1 And a

religion that teaches its followers to hate one’s family would

most certainly be viewed with near universal disdain. But

would an offended Christian student similarly situated to

Sabra have a Free Exercise claim just because his professor

taught this controversial position taken directly from the

Bible, and then tested on it? Should the availability of that

claim turn on the professor’s personal motives for teaching

the material? I suppose jurists could disagree about those

questions. But it would be much harder for them to dispute

whether anything in our caselaw clearly establishes such a

claim.

We have repeatedly affirmed the idea that academic

freedom protects a professor’s right to teach controversial

subjects. See, e.g., C.F. ex rel. Farnan v. Capistrano Unified

Sch. Dist., 654 F.3d 975, 988 (9th Cir. 2011); Rodriguez v.

Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 709 (9th

Cir. 2010). This principle plainly extends to testing students

on what they were taught, even if it only concerns the

professor’s opinions and not demonstrable facts. Were this

not the case, judges and juries would be given the power to

decide which opinions are too “hostile” or “denigrating” to

1

Teaching that the Bible instructs all Christians to hate their families

is much closer to teaching that Islam supports terrorism than it may

appear at first blush because the Bible elsewhere equates hating with

being a murderer. See I John 3:15 (NIV) (“Anyone who hates a brother

or sister is a murderer.”).

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 51

a religion, to use some of the dissent’s terms. That is

troubling.

So ultimately, if we remanded this case, and everything

the dissent imagines might favor Sabra turned out to be true,

Sabra still would not have a clearly established Free Exercise

claim. Only by ignoring the utter paucity of similar cases in

this context can the dissent conclude otherwise. If we had to

decide whether Professor Damask’s views cross the “dimly

perceived line of demarcation” such that teaching his

controversial opinions was unconstitutional, Farnan,

654 F.3d at 988 (cleaned up), we obviously would. But we

would be the first to address that issue, and it would be very

difficult. And because we would be the first to do so, this is

obviously a case in which qualified immunity applies. See

Mullenix, 577 U.S. at 11.

II. Organizational Standing

While I agree with the majority opinion that our circuit’s

precedent compels the conclusion that CAIR-AZ has

organizational standing, this case presents yet another

example where our court’s jurisprudence is at “loggerheads”

with Supreme Court precedent. See Fair Hous. Council of

San Fernando Valley v. Roommate.com, LLC, 666 F.3d

1216, 1224 (9th Cir. 2012) (Ikuta, J., concurring and

dissenting). The Supreme Court has determined that

organizational standing arises upon a showing of an injury

in fact, similar to the test for individual standing. See

Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79

(1982). This means that an organization must show “an

invasion of a legally protected interest which is (a) concrete

and particularized, and (b) actual or imminent.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (cleaned

up). To satisfy this standard, the challenged conduct should

“perceptibly impair[]” the organization’s interest in carrying

52 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

out its core mission. See Havens, 455 U.S. at 378–79.

Consistent with Havens, our court has determined that an

organization can establish standing if it can show

“(1) frustration of its organizational mission; and

(2) diversion of its resources to combat the [challenged

actions].” Smith v. Pac. Prop. & Dev. Corp., 358 F.3d 1097,

1105 (9th Cir. 2004).

But as in other areas of our court’s jurisprudence, we

have paid lip service to these rules while faltering in our

application. In multiple cases, we have watered down the

requisite injury to the point where “we have held that an

organization with a social interest in advancing enforcement

of a law was injured when the organization spent money

enforcing that law.” Fair Hous. Council of San Fernando

Valley, 666 F.3d at 1226 (Ikuta, J., dissenting) (discussing

Smith, 358 F.3d at 1105). As Judge Ikuta has astutely noted,

“[t]his looks suspiciously like a harm that is simply ‘a

setback to the organization’s abstract social interests,’ the

very thing Havens indicated was not a ‘concrete and

demonstrable injury to the organization’s activities . . . .’”

Id. (quoting Havens, 455 U.S. at 379).

We can add this case to the pile. CAIR-AZ pled that it

is a “non-profit organization committed to advocacy and

protecting the civil rights of American Muslims while

promoting justice.” It also pled that “[i]n an attempt to

remedy the damage done by [Professor] Damask, CAIR-AZ

has had to divert their resources to create a campaign

correcting the Islamophobic information.” And it further

pled that “it has contracted with a religious scholar to create

materials for this campaign.” While this suffices under our

precedent, it merely establishes that CAIR-AZ simply “spent

money . . . addressing the exact problem [it was] established

to address.” Fair Hous. Council of San Fernando Valley,

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 53

666 F.3d at 1226 (Ikuta, J., dissenting). In other words, the

only resources CAIR-AZ diverted are those to further its

stated purpose of “protecting the civil rights of American

Muslims.” An activity that falls exactly in line with an

organization’s stated purpose seriously undermines any

sense of injury, and therefore runs afoul of the Supreme

Court’s threshold requirement that injury be “concrete and

particularized” and “actual or imminent.” See Lujan,

504 U.S. at 560. Given our warping of clear Supreme Court

instruction, I agree with Judge Ikuta that we should revisit

our circuit’s organizational standing test en banc. See Fair

Hous. Council of San Fernando Valley, 666 F.3d at 1227

(Ikuta, J., dissenting).

BRESS, Circuit Judge, dissenting.

Mohamed Sabra, a Muslim student at a public

community college, was literally put to the test. In a class

presentation reasonably viewed as denigrating to Islam,

Professor Nicholas Damask taught that Islamic terrorism

was rooted in the Koran’s religious mandates and that the

Prophet Muhammad had himself committed acts of

terrorism. Asserting that “[t]he legitimacy of terrorism is

supported by nearly every Islamic legal authority of any

significance” and that “[c]ontentions that Islam does not

promote warfare or violence cannot be supported on either

theological or historical grounds,” Damask littered his

presentation with photos of Muslim children with captions

such as “A future Hamas terrorist?” and “Yet another?”

Damask then had students take a crude multiple-choice quiz

in which to receive credit, Sabra was forced to answer—

contrary to his religious beliefs—that terrorism is

“encouraged in Islamic doctrine and law” and “justified

54 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

within the context of Jihad.” Faced with formal questions of

Islamic religious doctrine and constrained by the format,

Sabra chose his religious beliefs and got the questions

wrong, earning a lower grade.

Being put to the stark choice between adhering to one’s

sincerely held religious beliefs or facing a penalty falls

within the heartland of the Free Exercise Clause’s

protections. The question here, however, is not whether

Sabra should prevail but merely whether he has stated a

claim for relief at the motion to dismiss stage. He has.

Although Sabra suffered no First Amendment injury through

his mere exposure to inflammatory course materials, he may

have suffered such an injury when, in connection with those

disturbing materials, he was forced to answer black and

white multiple-choice questions that he plausibly alleges

required him to violate his religious beliefs on pain of

receiving a lower grade. Discovery is therefore needed to

assess Damask’s explanations for his facially problematic

quiz questions.

The majority opinion unfortunately never gets there by

relying on alternative grounds for dismissal that result in the

majority avoiding the question of whether Sabra’s Free

Exercise claim is legally valid. But the majority’s grounds

for decision are not correct. The majority bestows qualified

immunity on Professor Damask based on a minimal record

that raises more questions than it answers, even though we

have repeatedly held that granting qualified immunity at the

motion to dismiss stage and without discovery is disfavored.

The majority also affirms the dismissal of the Maricopa

County Community College District because Sabra

supposedly has not pleaded a custom or practice for purposes

of municipal liability, even though the district court never

reached this issue, the College devoted minimal briefing to

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 55

it, and Sabra has never been given an opportunity to amend

his complaint. The majority then prevents Sabra from even

having that standard opportunity to replead by holding that

Sabra has abandoned this claim on appeal—an abandonment

holding that is unsound, unprecedented, and unfair. The

majority has effectively imposed a case-ending sanction on

Sabra in circumstances that do not remotely warrant it.

I would have met Sabra’s Free Exercise claim on the

merits rather than rely on legally infirm alternative grounds

for affirmance. Sabra’s allegations are troubling, concern

matters of sincerely held religious conviction, and warrant

further judicial inquiry. I respectfully dissent.

I

The plaintiff, Mohamed Sabra, enrolled in Professor

Nicholas Damask’s World Politics course at Scottsdale

Community College in the 2020 spring semester. The

College is part of the Maricopa County Community College

District (“MCCCD”), and a state actor for purposes of

42 U.S.C. § 1983. Damask’s course, which he has been

teaching at the College for 24 years, is self-guided and

administered online. When students have questions, they

can message Damask on the College’s internal

communication software platform.

This appeal centers on a unit of Damask’s course entitled

“Islamic Terrorism.” During that unit, Damask assigned an

excerpt from the book Future Jihad: Terrorist Strategies

Against America by Walid Phares, had students review a

PowerPoint presentation that Damask created, and

administered a 25-question, multiple-choice quiz. The heart

of Sabra’s Free Exercise Clause claim turns on two questions

in this quiz for which Sabra lost points, but which he claims

he could not answer “correctly” because the questions as

56 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

written required him to affirm a view of Islam that is contrary

to his religious beliefs.

The district court dismissed Sabra’s complaint under

Rule 12(b)(6), finding that Sabra failed to state a Free

Exercise Clause violation because the quiz only required

Sabra “to demonstrate an understanding of the material

taught.” The majority decides this case in a way that allows

it to avoid the merits of this claim. In a subsequent section,

I will explain why the majority is wrong to do so. In this

section, I explain why, in my view, Sabra has stated a claim

for relief under the Free Exercise Clause. There are

unanswered questions here, but those require discovery; we

cannot simply accept the defendants’ view of the facts. 1

A

The question in the current posture is only whether Sabra

has pleaded enough factual allegations to survive dismissal

of his Free Exercise claim. To do so, Sabra’s complaint must

contain a “short and plain statement of the claim showing

that [he] is entitled to relief.” Fed. R. Civ. P. 8(a). This

requires Sabra to plead a claim that is “plausible on its face,”

meaning that his complaint must contain sufficient “factual

content that allows the court to draw the reasonable

inference that the defendant[s] [are] liable for the

1

I agree with the majority that under our precedents, plaintiff

Council on American-Islamic Relations of Arizona, Inc. (“CAIR-AZ”)

has organizational standing under Article III. (For ease of reference,

however, I will refer to Sabra as the plaintiff.) I also agree with

defendants that Sabra’s Establishment Clause claim lacks merit. The

Establishment Clause does not provide the right doctrinal “box” for the

problem before us. See Cal. Parents for Equalization of Educ. Materials

v. Torlakson, 973 F.3d 1010, 1022 (9th Cir. 2020) (CAPEEM) (Bress, J.,

concurring).

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 57

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). Sabra has met this threshold burden.

Although Damask’s quiz questions form the basis for the

claimed Free Exercise Clause violation—because it is

through them that Sabra suffered a formal penalty—

Damask’s PowerPoint presentation provides the primary

context for the quiz. The PowerPoint slides were made

available prior to the quiz and are attached as an exhibit to

Sabra’s complaint. The slides would understandably cause

considerable offense to a Muslim student (among others)

because they portray Islam as a religion that not only

supports terrorism but requires it. I offer only a few of

Damask’s slides here for consideration. I have added red

boxes around some of the more striking portions of the

slides:

58 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

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60 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 61

The only other relevant course material was an excerpt from

a book by Walid Phares, who Sabra alleges promotes anti-

Muslim ideologies.

At the conclusion of the unit on Islamic terrorism,

Damask had students take a multiple-choice quiz. Two

questions form the core of Sabra’s Free Exercise Claim. In

Question 9, Sabra was asked to answer: “Where is terrorism

encouraged in Islamic doctrine and law?” Consistent with

his religious beliefs, Sabra chose the fourth answer:

“terrorism is not encouraged in Islamic doctrine and law.”

The “correct” answer was “the Medina verses.” This

screenshot of the web-based quiz shows the question and

Sabra’s incorrect answer:

(The reader will notice that there is a box in the bottom

labeled “Additional Comments,” but there is no suggestion

that it was Sabra who could add such comments when taking

the quiz. Instead, it appears this box was to be used by the

62 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

instructor, in the event the instructor wanted to comment on

the student’s answer.)

In Question 20, Sabra was asked to fill in the blank:

“Terrorism is ______ in Islam.” Consistent with and

constrained by his religious beliefs, he chose the second

answer: “always forbidden.” That too was wrong:

After taking the quiz, Sabra messaged Professor Damask

to express his “disgust” at having to answer questions that

were “absolutely in distaste of Islam.” Sabra explained that

he “usually do[es] not feel offended when my religion is

talked about” and “underst[ood] the school has a

curriculum,” but nevertheless, “I feel I should not let these

types of questions just stand.” In response, Damask wrote

that the questions were designed to illuminate “what beliefs

motivate [terrorists] no matter how wrong they may be.”

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 63

Damask did not give Sabra credit for his answers to these

two questions, and Sabra received a 64% on the quiz. Sabra

posted the quiz questions on social media, where the story

quickly went viral. The College at first condemned

Damask’s actions, but then later retracted its disapproval and

called for an “immediate independent investigation of the

facts related to this situation.” It appears that the College

initially indicated that it would give Sabra credit for three

questions he missed, but Sabra alleges that the points have

not been credited.

B

With this background in place, I turn to the merits of

Sabra’s Free Exercise challenge. A student does not state a

Free Exercise violation merely because he was exposed to

offensive content in class. See Cal. Parents for Equalization

of Educ. Materials v. Torlakson, 973 F.3d 1010, 1016 (9th

Cir. 2020). But when a school “penalize[s], interfere[s]

with, or otherwise burden[s] religious exercise,” id. at 1020,

or when the challenged action has “a coercive effect that

operates against the litigant’s practice of his or her religion,”

Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1533 (9th

Cir. 1985), the student has a viable claim.

To determine if a Free Exercise violation has occurred,

we ask whether the state has put the plaintiff to a choice

between exercising religion or “recei[ving] an important

benefit upon conduct proscribed by a religious faith, . . .

thereby putting substantial pressure on an adherent to modify

his behavior and to violate his beliefs.” Thomas v. Review

Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717–18

(1981). In other words, a plaintiff states a Free Exercise

claim when state action forces a conditional choice between

exercising one’s religious beliefs and avoiding a penalty or

gaining a benefit. See Fulton v. City of Philadelphia, 141

64 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

S. Ct. 1868, 1876 (2021) (“[I]t is plain that the City’s actions

have burdened [plaintiff’s] religious exercise by putting it to

the choice of curtailing its mission or approving

relationships inconsistent with its beliefs.”); Trinity

Lutheran v. Comer, 137 S. Ct. 2012, 2021–22 (2017) (“[T]he

Department’s policy puts Trinity Lutheran to a choice: It

may participate in an otherwise available benefit program or

remain a religious institution . . . . [W]hen the State

conditions a benefit in this way . . . the State has punished

the free exercise of religion.”).

We have upheld schools’ curricular decisions against

Free Exercise challenge when such an unconstitutional

choice has not been imposed. In CAPEEM, a group of

parents of Hindu children in the California public schools

challenged the state’s curricular standards, alleging that they

“carr[ied] a hostile and denigrating message about the

origins of Hinduism when compared with similar provisions

relating to other religions of the world.” 973 F.3d at 1013–

15. The district court dismissed the parents’ Free Exercise

claims and we affirmed. We held that because the standards

“at most . . . contain material Appellants find offensive to

their religious beliefs,” the defendants did not violate the

Free Exercise Clause. Id. at 1020. In Grove, we similarly

held that a school board’s refusal to remove from the

curriculum a book that offended plaintiff’s “religious

sensibilities” did not create a Free Exercise Clause issue.

See 753 F.2d at 1533–34.

Given this precedent, Damask’s PowerPoint

presentation, standing alone, did not violate Sabra’s Free

Exercise rights, however repugnant Sabra may have found

the course materials. But the quiz is a different matter

because of its penalty component. On its face, the quiz—

which based on the record before us provided no context

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 65

except the bare questions asked—put students to a black-

and-white choice on direct questions of Islamic religious

doctrine. To gain points on Question 9, Sabra had to affirm

that terrorism is “encouraged in Islamic doctrine and law,”

and lost points when he answered: “terrorism is not

encouraged in Islamic doctrine and law.” Similarly, in

Question 20, Sabra had to ratify that terrorism was

“justified” in Islam, when he believed, consistent with the

second answer, that it was “always forbidden.”

A “severe” and “inescapable” impact on religious

exercise exists when state action “affirmatively compels” a

student to “perform acts undeniably at odds with

fundamental tenets of their religious beliefs.” Wisconsin v.

Yoder, 406 U.S. 205, 218 (1972). That is the core principle

that Sabra plausibly invokes here. We can all imagine

multiple-choice questions such as these being posed to us

based on what we would regard as gross misconceptions of

our own religions. It is one thing to be exposed to such

material in a public-school setting. It is quite another to be

forced to ratify those views or face a tangible detriment. And

while Sabra’s claim ultimately turns on just two questions

on a quiz, I know of no “peppercorn” exception to the Free

Exercise Clause, by which religious liberties could

apparently be whittled away on the theory that they matter

not enough. To regard Sabra’s challenge as de minimis is to

ignore the constitutional injury of which he reasonably and

rightly complains.

There is of course a fine line between unlawfully

penalizing a student for his religious beliefs and teaching a

student a point of view that may offend those beliefs.

College professors should have wide latitude in choosing

how they will teach a course. And the temptation to turn

every uncomfortable moment into a constitutional violation

66 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

should be resisted. But what I believe is doing the work here

for Sabra at the motion to dismiss stage is the intensely

formal nature of the multiple-choice format; the specific way

in which the questions were drafted; their orientation around

Islamic religious beliefs; and the fact that when Sabra

answered the questions “incorrectly,” he lost points on the

quiz.

Sabra was not merely made to endure offensive course

materials. He was instead placed into a caged pedagogical

exercise in which he was forced to affirm a wayward view

of his religion or else receive a lower grade. There was no

way out for Sabra on this one. The issue here is thus not

Sabra’s discomfort, but his being docked points—receiving

a penalty—for his failure formally to answer “correctly” a

question of Islamic religious doctrine. On its face, the two

offending questions put Sabra to a facially invalid choice

between disaffirming his religious beliefs or receiving a

lower grade.

C

But is there some other explanation for this? Was this

just a poorly drafted quiz or were the quiz questions

reflective of Professor Damask’s possible hostility toward

Islam? Or is there some other reason we can be less

concerned about what happened here? The problem is that

at this stage of the proceedings, we do not know. And we

need discovery to get to the bottom of this, including on

Damask’s request for qualified immunity.

The quiz questions themselves came with no

introduction, explanation, or disclaimer. They lack any

context as presented. And the most salient context we have

is Damask’s PowerPoint presentation. Suffice to say,

however, if a professor was hoping to explain away facially

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 67

problematic quiz questions such as these, the PowerPoint

Damask created is a very poor choice for putting those

concerns to rest. One can easily read into that PowerPoint a

denigrating view of Islam. Sabra thus plausibly alleges not

only that the quiz questions put him to an unconstitutional

Catch-22, but that they required him to endorse the

disapproving view of Islam that he could reasonably

perceive in the PowerPoint slides. Damask’s PowerPoint

presentation thus underscores the need for discovery into

Sabra’s allegations.

The defendants offer two main responses to the quiz, but

neither can carry the day at the motion to dismiss stage.

First, when Sabra complained to Professor Damask using the

College’s messaging system, Damask suggested in response

that the quiz questions were written from the perspective of

what an Islamic terrorist would argue, with the implication

that students were supposed to answer the questions from

that standpoint. Damask urged Sabra “not to think about

whether the terrorists’ beliefs are ‘right’ or ‘wrong’ or

‘true,’” but to “approach the discussion” by “thinking

simply” about “what beliefs motivate [the terrorists] no

matter how wrong they may be.”

It is possible that this was Damask’s thinking when he

prepared the quiz. But there is no basis to credit that

explanation without discovery. Damask’s response to Sabra

is hard to square with the fact that the quiz questions are

drafted as though they are calling for purely factual,

objective answers—as one might expect for a multiple-

choice quiz. And when the quiz asked students to think from

a certain perspective, the questions so indicated. For

example, Question 19 was framed around what Walid Phares

believes. Questions 9 and 20 were not written in that way.

And Damask’s PowerPoint was not written in that way,

68 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

either. While Damask attributes some of the statements in

his slides to others, many of the most troubling statements

were offered without attribution.

Second, the defendants argue that Sabra has not stated a

claim because he was merely “being tested to demonstrate

understanding of the course material.” The district court

similarly believed there was no Free Exercise Clause

violation because Sabra was only being asked “to

demonstrate an understanding of the material taught.” It is

possible that this may turn out to be the best view of what

happened. But we cannot treat the defendants’ position as

true in the present posture.

The implication of the defendants’ argument is that a

public school could teach a curriculum hostile to a religion,

penalize students who answer formal questions of religious

doctrine “wrong,” and then absolve itself of liability by

arguing that students were merely being asked to rehash

what they learned in the course. That is an unsettling

proposition with no apparent limiting principle. And it

would mean that even outright animus toward religion in a

public-school setting could be immunized from

constitutional challenge by the circular response that

students were merely being tested on the course materials.

Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n, 138 S. Ct. 1719, 1731 (2018) (state actors may not

act with “hostility to a religion or religious viewpoint”). The

defendants’ argument therefore sweeps too broadly. I

cannot credit the evident suggestion that no public-school

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 69

class can ever produce a Free Exercise violation, regardless

of how the course is taught or the material tested. 2

To say that Sabra was being tested on the course

materials, as defendants do, thus requires further analysis

into the nature of those materials and the context for the

disputed quiz questions. And on that issue, we do not have

complete information. I would have held that Sabra stated a

Free Exercise Clause claim and remanded for the parties to

engage in discovery.

II

The majority bypasses the merits of Sabra’s Free

Exercise claim altogether. It affirms the district court’s

judgment for the College District on alternative grounds that

the district court did not reach. The majority further holds

that Professor Damask is entitled to qualified immunity.

These holdings are mistaken.

A

The majority affirms the district court’s dismissal of the

College District by concluding that (1) Sabra on appeal

abandoned his municipal liability claim against the College

District; and (2) his complaint fails to allege a custom or

practice for purposes of municipal liability. In my view, the

majority errs in resolving this claim on grounds that the

district court did not reach, and on a pleading issue for which

2

This is not a matter of bringing to bear one’s subjective or personal

views, as the separate concurrence incorrectly asserts. It is instead part

of our obligation to ensure that government actors do not act in ways that

“are hostile to the religious beliefs of affected citizens” or “in a manner

that passes judgment upon or presupposes the illegitimacy of religious

beliefs and practices.” Masterpiece Cakeshop, 138 S. Ct. at 1731.

70 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

Sabra was entitled to leave to amend his complaint. The

majority compounds that error by improperly holding that

Sabra has abandoned his claims against the College District.

1

The district court did not reach the question of whether

Sabra sufficiently alleged an official custom or practice for

purposes of the College District’s “municipal” liability. See

Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978).

Although the College District advanced this argument in its

motion to dismiss, the district court instead found that Sabra

had not pleaded a First Amendment violation. The district

court therefore did not address whether Sabra sufficiently

pleaded an official custom or practice for purposes of the

College District’s alleged municipal liability.

Somewhat remarkably, the majority holds that Sabra

“abandoned [his] municipal liability claim on appeal.” Maj

Op. 22. That is not correct. “A party abandons an issue

when it has a full and fair opportunity to ventilate its views

with respect to an issue and instead chooses a position that

removes the issue from the case.” BankAmerica Pension

Plan v. McMath, 206 F.3d 821, 826 (9th Cir. 2000). That is

not what happened here. 3

3

Although the majority tries to suggest otherwise, BankAmerica sets

the standard for when “a party abandons an issue.” 206 F.3d at 826. We

have set forth that standard in general terms in many cases, without

suggesting that it is limited only to abandonment of a claim at the district

court as opposed to the court of appeals. Nor is it apparent why any

different standard would apply in those two contexts. The majority thus

itself evaluates abandonment under BankAmerica’s test and does not

suggest any alternative standard that we should apply instead. Maj.

Op. 26.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 71

We can begin with Sabra’s opening brief. To the extent

the majority is faulting Sabra for not specifically addressing

in his opening brief whether he had pleaded a custom or

practice for purposes of the College District’s municipal

liability, Sabra had no obligation to raise this issue on his

own. The district court did not rule against him on this basis.

There is no requirement that an appellant seeking reversal of

the judgment below engage in shadowboxing by

preemptively discussing other alternative grounds for

affirmance in his opening brief.

Our cases are clear on this point. As we reiterated last

year:

We have previously held that the failure of a

party in its opening brief to challenge an

alternate ground for a district court’s ruling

given by the district court waives that

challenge. . . . [An appellant] does not waive

a challenge to any ground for the district

court’s ruling in its opening brief that was not

relied on in the district court’s order.

Warmenhoven v. NetApp, Inc., 13 F.4th 717, 729 (9th Cir.

2021) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6

(9th Cir. 2010)) (alterations omitted; second emphasis

added); see also Vos v. City of Newport Beach, 892 F.3d

1024, 1035 n.10 (9th Cir. 2018) (rejecting the argument that

appellants waived an issue by not addressing it in their

opening brief because the district court did not rule on that

basis). Indeed, we have described it as “‘groundless’” “to

suggest that an appellant must address all possible alternate

grounds for affirmance—even those not ruled upon by the

district court—in an opening brief.” Warmenhoven, 13 F.4th

at 729 (quoting Rodriguez, 591 F.3d at 1118 n.6). To the

72 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

extent the majority premises its abandonment holding on

what Sabra allegedly failed to include in his opening brief,

the majority clearly errs.

While our clear case law on this issue is sufficient to

show that Sabra had no obligation to raise municipal liability

in his opening brief, I note that Sabra certainly did maintain

in his opening brief that he was seeking relief against the

College District and that he had a basis to do so. Sabra

argued, among other things, that “MCCCD had actual and

constructive knowledge that the Islamic Terrorism module

was going to be taught at [the College] because MCCCD’s

own Regulation 3.6 requires that ‘a copy of the course

syllabus [] be submitted to [MCCCD] no later than the end

of the first week of class.’” He further argued in his opening

brief that “MCCCD not only had notice of the class material,

but it condoned the same and approved its use in the

classroom.”

These statements each directly address the legal standard

for municipal liability, which in the majority’s words

requires that the College District had “knowledge (actual or

constructive) of the offending course material and then

sanctioned its use in the classroom.” Maj. Op. 31. And more

broadly, throughout his opening brief, Sabra made clear that

he was seeking reversal of the judgment as to both Damask

and the College District. This was more than sufficient to

show that Sabra was still pressing this claim, even as nothing

required Sabra to address the sufficiency of his custom and

practice allegations when the district court did not rule on

that basis. 4

4

In a footnote, the majority maintains that these statements in

Sabra’s opening brief were not sufficient to show that Sabra “specifically

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 73

We can turn next to the remainder of the briefing. In

approximately two and a half pages of its 53-page answering

brief—on pages 43 to 46—the College District argued that

we could affirm on the alternative ground that Sabra had

failed to plead an official custom or policy for purposes of

municipal liability. Much of this abbreviated discussion in

the College District’s answering brief consisted of

background legal citations. As the majority notes, Sabra in

his reply brief did not specifically address this claimed

alternative ground for affirmance.

The majority seizes on this to hold that Sabra has thereby

abandoned his Monell theory on appeal. According to the

majority, even though the district court never ruled on this

basis, once the College District in its answering brief raised

this supposed alternative ground for affirmance—on a

pleading issue for which Sabra otherwise would have

received leave to amend—Sabra’s failure to respond to the

argument in his reply brief means he has now forfeited his

entire municipal liability claim for all time. According to the

majority, this abandonment rule “is true whether an

appellant fails to file any reply brief or in filing a reply brief

fails to address an issue squarely raised in the appellee’s

answering brief.” Maj. Op. 24. The majority thus holds that

once the appellant in a reply brief “disregard[s] an argument

presented by the appellee” in its answering brief, the

appellant has thereby conceded the argument through

abandonment. Maj. Op. 24–25. The majority claims this

and distinctly” argued his municipal liability claim there. Maj. Op. 23

n.5. But as I have explained, Sabra had no obligation at all to address in

his opening brief possible grounds for affirmance on which the district

court did not rely. Warmenhoven, 13 F.4th at 729. I point out what Sabra

said in his opening brief to show that even notwithstanding his lack of

obligation, Sabra did not somehow walk away from his claim against the

College District.

74 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

rule of law “is based on a straightforward application of our

case law on abandonment,” and indeed reflects “a textbook

case of abandonment.” Maj. Op. 23, 27.

It is hard to overstate the unprecedented nature of this

holding as a matter of appellate procedure. Under the

Federal Rules of Appellate Procedure, appellants are not

required to file reply briefs at all; they are optional. See

Fed. R. App. P. 28(c), 31(a). Many litigants in our Court do

not file them. United States v. Dharni, 757 F.3d 1002, 1004

(9th Cir. 2014) (“It is not at all unusual for appellants to fail

to file reply briefs, which are optional.”). The order

docketing this case thus used our standard language stating

that Sabra’s “optional reply brief is due 21 days after service

of the answering brief.” To the extent the majority is

suggesting that an appellant’s failure to file a reply brief is

tantamount to abandonment, the majority contradicts both

the Federal Rules and the explicit guidance we gave the

parties in this case through our usual case-opening order.

The rules governing reply briefs explain why we do not have

loads of cases finding issues abandoned for failure to file

reply briefs, which would be the case if the majority’s rule

were actually the law.

To the extent the majority’s abandonment holding turns

on the fact that Sabra chose to file a reply brief but did not

address every issue raised in the answering brief—here, a

pleading issue that the district court did not even reach—the

majority’s abandonment rule is equally invalid. With a

background rule that reply briefs are optional, we have never

told appellants that if they elect to file a reply brief, failure

to respond to a particular argument made in the answering

brief means appellants will be treated as forfeiting that claim.

As I explain below, a failure to address an issue in a reply

brief can contribute to an appellant losing on the merits of

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 75

that issue. But we have never held that in and of itself, such

a failure is a procedural default. Once again, it is

commonplace that litigants in optional reply briefs do not

always address every single argument raised in an answering

brief, especially ones that were not grounds for the decision

below. If the majority’s rule were the law, we would again

have legions of cases finding abandonment of claims on

appeal through “incomplete” reply briefs.

Instead, for all its representation that its abandonment

holding is a “straightforward application of our case law on

abandonment,” Maj. Op. 23, the majority identifies only two

cases supporting its broad abandonment theory. But the

majority quotes isolated lines from those cases without

revealing their full picture. Those two cases do not support

what the majority is doing here. And they confirm that

today’s decision is anything but a “straightforward

application” of existing law.

In the first case, Maciel v. Cate, 731 F.3d 928 (9th Cir.

2013), the appellee argued for the first time in its answering

brief that the defendant’s completion of parole mooted the

appeal, based on events post-dating the filing of the appeal.

Id. at 931–32. The appellant responded to the mootness

issue in his reply brief. See Maciel v. Cate, No. 11-56620,

Dkt. 33 at 2–4. Then, the appellant attempted to raise a new

argument against mootness in a letter filed pursuant to

Federal Rule of Appellate Procedure 28(j). In a footnote, we

stated that the appellant had “forfeited this argument” by

“failing to address it in his reply brief” and by instead raising

it in an “improper[]” Rule 28(j) letter “filed shortly prior to

oral argument.” Maciel, 731 F.3d at 932 n.4.

We have never at any point in Maciel’s nearly 10-year

existence cited this two-line snippet in a footnote as setting

forth some watershed principle of abandonment

76 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

jurisprudence (indeed, it appears we have never cited this

aspect of Maciel at all). Maciel does not support, much less

require, the majority’s abandonment holding. The appellant

in Maciel of course forfeited his right to make any further

argument on appeal on the mootness issue; that is what made

his Rule 28(j) letter improper. And that explains why in the

one sentence the majority relies upon, Maciel cited only

United States v. McHenry, 659 F.3d 893, 902 (9th Cir. 2011),

a case that also rejected an argument because it was made

for the first time in a Rule 28(j) letter. See Maciel, 731 F.3d

at 932 n.4. But to say that an appellant cannot make

additional arguments in a Rule 28(j) letter filed on the eve of

argument—a longstanding point we make all the time—is a

far cry from saying the appellant in a reply brief has totally

abandoned an entire claim forever, especially one based on

a pleading issue that the district court never addressed. And

for all the majority’s reliance on Maciel’s footnote, Maciel

ultimately went on to address the argument on the merits as

a matter of discretion. Id. If the majority had followed the

rest of Maciel’s footnote, it would have had to remand to

allow Sabra to replead, as I explain below.

The second case the majority cites is International

Brotherhood of Teamsters v. Allegiant Air, LLC, 788 F.3d

1080 (9th Cir. 2015). That case also does not support the

majority’s broad abandonment rule. In Allegiant Air, the

appellant failed to argue in its opening brief that an agency

decision should have preclusive effect. Id. at 1090. Out of

an apparent abundance of caution, the appellee argued in its

answering brief that collateral estoppel did not prevent us

from revisiting the issue. Id. In its reply brief, the appellant

then tried to argue that the agency determination did have

preclusive effect, but it offered only a conclusory assertion

on this point. Id. We stated that although “[w]e have

discretion to consider an issue raised in a reply brief where,

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 77

as here, an appellee raised an issue in its brief . . . [b]ecause

[appellant’s] Reply does not cite relevant authority or

otherwise press the point, we find the argument waived.” Id.

Properly considered, the central problem in Allegiant Air

was that the appellant failed to raise an argument in its

opening brief. The question then became whether to

exercise our discretion to address the argument because the

appellee had raised it in its answering brief. Allegiant Air

thus speaks to the question of what an appellant must do to

revive an argument it neglected to include in its opening

brief, but which is potentially back in play based on the

appellee discussing it in the answering brief.

This case is completely different because as I discussed

above, Sabra had no obligation to address the municipal

liability pleading issue in his opening brief. Allegiant Air

did not purport to set forth a general rule of irrecoverable

abandonment of a claim anytime a reply brief does not

address an argument made in the answering brief. The

majority’s assertion that my views here are “flatly

inconsistent with our conclusions in Maciel and Allegiant

Air,” Maj. Op. 24–25, is thus simply wrong, ignoring the

critical differences between this case and those ones. This is

not a “textbook case of abandonment,” as the majority

somehow asserts, Maj. Op. 27, but the deployment of an

entirely novel abandonment theory.

To be sure, and as I referenced above, an appellant’s

failure to respond to an argument raised in an answering

brief can result in the appellant losing on the merits of the

ground raised in the answering brief and not addressed in a

reply brief. That is because (as the majority notes) we “may

affirm a 12(b)(6) dismissal on any basis fairly supported by

the record,” Adams v. Johnson, 355 F.3d 1179, 1183 (9th

Cir. 2004), just as we may affirm the judgment on alternative

78 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

grounds more generally, see, e.g., Harris Rutsky & Co. Ins.

Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1136

(9th Cir. 2003).

But losing on the merits is entirely different than losing

on grounds of abandonment. The problem here is that the

majority cannot just affirm on the merits. The Monell issue

is, at best, a failure to plead sufficient facts. Until today,

Sabra had never received a ruling identifying insufficiencies

in his “custom and practice” factual allegations. And as I

explain further below, Sabra would have been given leave to

amend his allegations as a matter of course—as the majority

expressly concedes. Maj. Op. 31–32. The Monell pleading

issue is thus not on its own an alternative ground for

affirmance: we could at best vacate the district court’s

decision on this basis as to the College District and instruct

that Sabra be given leave to replead with additional facts.

Yet the only reason the majority is disallowing Sabra from

having that standard opportunity to amend his complaint is

by bootstrapping its improper theory that Sabra abandoned

this issue in his reply brief.

As a procedural ruling, the implications of today’s

abandonment holding will likely extend far beyond Sabra

and his claims. Parties often spar in the district court over

various claimed pleading deficiencies as to which the court

does not rule but which, if it had dismissed on those bases,

would have been the proper subject of leave to amend. Now

every one of these fact pleading defects is in play on appeal

as an alternative ground for affirmance on abandonment

grounds if the appellant fails to address them preemptively

in his opening brief and/or in his reply brief. With no basis

in the federal rules or our precedents, the majority has

created potential traps for the unwary while inviting

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 79

extensive and unnecessary protective briefing on pleading

issues that district courts did not address.

Of course, even if the majority’s abandonment-by-reply-

brief theory were plausible, nothing requires the majority to

find Sabra’s claim against the College District abandoned

and thereby block Sabra from pursuing any further relief

against this defendant. “We have discretion . . . to overlook

any waiver.” Phillips v. E.I. DuPont de Nemours & Co. (In

re Hanford Nuclear Rsrv. Litig.), 534 F.3d 986, 1007 (9th

Cir. 2008). Indeed, we often exercise that discretion even

when an appellant fails specifically and distinctly to argue

an issue in his opening brief—unlike here, the violation of

an actual, well-established procedural requirement. See,

e.g., Etamedi v. Garland, 12 F.4th 1013, 1027 (9th Cir.

2021); Wooten v. Kirkland, 540 F.3d 1019, 1025 n.4 (9th Cir.

2008); Koerner v. Grigas, 328 F.3d 1039, 1048–49 (9th Cir.

2003).

Why not exercise that discretion here, when Sabra is

being blindsided with a novel theory of abandonment and

when he has advanced troubling allegations related to his

religious beliefs? A favorable exercise of discretion would

further be warranted considering that nothing in Sabra’s

reply brief indicates that he was “choos[ing] a position that

removes the [Monell] issue from the case,” as is required to

find Sabra’s claim against the College District abandoned.

BankAmerica Pension Plan, 206 F.3d at 826. Sabra’s reply

brief consistently indicated that he was seeking reversal of

the district court’s judgment as to both appellees. From

Sabra’s reply brief, the majority “infer[s] that [Sabra] had

nothing to say” about his Monell claim. Maj. Op. 23 n.4.

Why not infer instead that Sabra believed, correctly, that he

had no obligation to say anything on this issue?

80 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

When we asked Sabra’s counsel at oral argument about

this, he made clear that Sabra was not abandoning any claim

against the College District, explaining at length Sabra’s

theories of municipal liability. I agree with the majority that

an abandoned claim cannot be resuscitated at oral argument.

But the oral argument colloquy with Sabra’s counsel

confirms that the Monell issue was never abandoned in the

first place. And it underscores the severity of the majority’s

abandonment ruling.

The majority claims it is “aware of no case . . . in which

our court has gone to such lengths to rescue a counseled

party’s claim under these circumstances.” Maj. Op. 25. But

surely other parties have done worse and fared better. I do

not understand why, even on the majority’s misguided view

of abandonment, that the majority is insisting that Sabra face

case-ending consequences as an exercise of our discretion.

I am aware of no case in which we have found a claim

abandoned in circumstances such as this, and the majority

cites none. Nothing in our cases required this. And I see no

judicial interest in applying the doctrine of abandonment in

the unforgiving fashion that the majority does here. The

majority has turned what is at best a minor omission in an

optional reply brief into a death knell.

2

Equally severe is the majority’s conclusion that Sabra’s

complaint fails to allege a custom or policy, and that Sabra

is not even allowed an opportunity to amend.

To demonstrate an official custom or policy under

Monell, Sabra was required to allege that the College District

made “a deliberate choice to follow a course of action . . . by

the official or officials responsible for establishing final

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 81

policy with respect to the subject matter in question.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). To

state such a claim, Sabra could have alleged a “longstanding

practice or custom.” Gordon v. Cnty. of Orange, 6 F.4th

961, 973 (9th Cir. 2021) (quotations omitted). In addition,

even if the incident is isolated, municipal liability remains

proper “if [a] final policymaker ratified a subordinate’s

actions,” meaning that the policymaker “approve[d] a

subordinate’s decision and the basis for it.” Christie v. Iopa,

176 F.3d 1231, 1238–39 (9th Cir. 1999) (quotations

omitted).

Sabra plainly endeavored to plead these elements in his

complaint. He alleged that the College District had

constructive knowledge of the class syllabus; that Damask

had been teaching this class for 24 years; that the College

District “publicly defended” Damask after Sabra’s

allegations came to light; and that because “Damask, as the

division/department chair, engaged in [the challenged]

actions[,] and thus as the final policymaker[,] Damask’s

actions are attributable to” the College District. Sabra thus

specifically alleged that the College District “not only

condoned the material but approved of its use in the

classroom.”

The majority spends pages explaining why these

allegations are insufficient—far more than the College

District itself spent on this issue in its answering brief. On

the merits, I find much of the majority’s analysis improperly

stringent at the motion to dismiss stage. For example, the

majority faults Sabra for “not alleg[ing] that the course in

other years contained the same content that offended Sabra,”

and notes that Sabra did not allege that “other professors

throughout the College District subject students to similar

views or teaching methods.” Maj. Op. 28–29. I doubt Sabra

82 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

had to make allegations so far-reaching to state a claim for

municipal liability. But at the same time, Sabra did allege

that Damask had been teaching the course for nearly a

quarter century, and that he was the department chair who in

that capacity approved his own course. On this front, it is

not reasonable to expect Sabra to have pleaded the details

that the majority claims are missing.

The larger point, however, is that even if one were

inclined to agree with the majority that Sabra’s existing

complaint could use some beefing up, Sabra has never been

given the opportunity to cure the deficiencies that the

majority identifies. Under Rule 15, leave to amend should

be “freely give[n].” Fed. R. Civ. P. 15(a)(2). “[T]his

policy,” we have held, “is to be applied with extreme

liberality.” Owens v. Kaiser Foundation Health Plan, Inc.,

244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band

of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.

1990)). Thus, “a district court should grant leave to amend

even if no request to amend the pleading was made, unless it

determines that the pleading could not possibly be cured by

the allegation of other facts.” Ebner v. Fresh, Inc., 838 F.3d

958, 963 (9th Cir. 2016) (quotations omitted).

If the district court had ruled against Sabra on the bases

that the majority does, Sabra clearly would have been

entitled to leave to amend. Indeed, if the district court had

refused to grant Sabra leave to amend, we would have held

that the court abused its discretion. See Eminence Capital,

LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)

(holding that the district court abused its discretion because

“[d]ismissal with prejudice and without leave to amend is

not appropriate unless it is clear on de novo review that the

complaint could not be saved by amendment”). There is

strong reason to believe that Sabra could address the alleged

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 83

shortcomings that the majority identifies considering

Damask’s lengthy history of teaching this class, his

prominent decision-making role in the College, and the fact

that Sabra can plausibly allege that the College approved or

was aware of Damask’s course materials. The majority

effectively agrees, recognizing that “in other circumstances

Plaintiffs might be given another opportunity to present a

pleading that contained more substantial allegations.” Maj.

Op. 31–32.

But the majority then remarkably shuts this down too

because “Plaintiffs abandoned their municipal liability claim

by failing to present arguments in support of it on appeal.”

Maj. Op. 31–32. This is excessive and wrong for the reasons

I have given above. What was at best Sabra’s minor

omission in his reply brief on appeal has become the

supposed justification for a case-dispositive sanction

preventing him from even re-pleading a legitimate claim.

B

The majority further errs in granting qualified immunity

to Professor Damask at this preliminary stage of the

proceedings. To determine if Damask is entitled to qualified

immunity we consider “(1) whether there has been a

violation of a constitutional right; and (2) whether that right

was clearly established at the time of [his] alleged

misconduct.” Jessop v. City of Fresno, 936 F.3d 937, 940

(9th Cir. 2019) (quotations omitted). Here, plaintiffs have

stated a Free Exercise claim, which the majority does not

openly dispute. So, to receive qualified immunity, Damask

must show that he did not violate a clearly established right.

It may be that Damask will be able to make that showing.

But we are not in a position to form that judgment now, at

this early juncture. A state actor cannot condition a benefit

84 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

or impose a penalty on the plaintiff’s exercise, or willingness

not to exercise, a religious belief. See, e.g., Fulton, 141

S. Ct. at 1876; Trinity Lutheran, 137 S. Ct. at 2022; Thomas,

450 U.S. at 716; Yoder, 406 U.S. at 218; Grove, 753 F.2d

at 1533–34. The issue is not whether that principle is clearly

established—it obviously is—but instead whether that is

what happened here, and whether Damask acted with

hostility towards Islam in the process. See Masterpiece

Cakeshop, 138 S. Ct. at 1731. That is why discovery is also

needed to evaluate the qualified immunity question.

The majority sees things differently, but its reasoning is

not persuasive. The majority concludes that “[t]he purpose

and effect of the quiz are susceptible to interpretation.” Maj.

Op. 43. But this only shows that the majority is drawing

inferences in favor of the defendants, which is impermissible

at this stage. See Ass’n for Los Angeles Deputy Sheriffs v.

Cnty. of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011) (on

a motion to dismiss “[t]he court draws all reasonable

inferences in favor of the plaintiff”). In any event, the two

disputed quiz questions do not require much interpretation

to see they are problematic. And if they are not, it is only

because the context of the rest of the course demonstrates

that the quiz questions are not as they might seem. But we

need discovery to figure that out.

The majority’s conclusion otherwise reflects error. The

majority “stress[es] the importance of resolving immunity

questions at the earliest possible stage in litigation.” Maj.

Op. 44 (quoting Dunn v. Castro, 621 F.3d 1196, 1199 (9th

Cir. 2010)). Although I agree with the sentiment, it does not

govern here. In Dunn, the case the majority cites on this

point, the plaintiff prisoner filed a § 1983 claim rooted in

substantive due process, claiming that the prison had

violated his “fundamental liberty interest in his relationship

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 85

with his children” after the prison prohibited minors from

visiting him after he had phone sex with his wife from the

prison with one of his children on the line. 621 F.3d at 1198,

1204. We were quite right to reject that near-frivolous claim

on qualified immunity grounds at the motion to dismiss

stage. But that case bears no resemblance to this one, where

the baseline constitutional right is clearly established, and

the key question is instead how the disputed quiz questions

should be properly understood.

The more relevant cases for our purposes are the ones

emphasizing that “[d]etermining claims of qualified

immunity at the motion-to-dismiss stage raises special

problems for legal decision making” because we must accept

the well-pleaded allegations in the complaint as true. Keates

v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018) (reversing

district court’s grant of qualified immunity at the Rule

12(b)(6) stage); see also O’Brien v. Welty, 818 F.3d 920, 936

(9th Cir. 2016) (reversing district court’s grant of qualified

immunity at the Rule 12(b)(6) stage because “dismissal is

not appropriate unless we can determine, based on the

complaint itself, that qualified immunity applies”) (quoting

Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001));

Morley v. Walker, 175 F.3d 756, 761 (9th Cir. 1999)

(affirming denial of qualified immunity at the Rule 12(b)(6)

stage); Pelletier v. Federal Home Loan Bank of S.F.,

968 F.2d 865, 872 (9th Cir. 1992) (same). We have

therefore cautioned that the “skeletal—at best—factual

picture sketched out in [a] complaint” can preclude the

resolution of qualified immunity at the motion to dismiss

stage. Wong v. United States, 373 F.3d 952, 956 (9th Cir.

2004).

It is of course true, as the majority notes, that “courts

must not define clearly established law at a high level of

86 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

generality, since doing so avoids the crucial question

whether the official acted reasonably in the particular

circumstances that he or she faced.” District of Columbia v.

Wesby, 138 S. Ct. 577, 590 (2018) (quotations omitted). But

not every qualified immunity case presents a dispositive,

first-order level of generality problem at every stage of

litigation. And setting aside that Wesby was a summary

judgment case, the “level of generality” problem in qualified

immunity cases is more pronounced in cases like Wesby

itself, which involve more open-ended constitutional

rights—there the right not to be arrested without “probable

cause.” Id. at 582, 584. Here, the Free Exercise Clause’s

anti-penalty and anti-hostility principles are fairly defined. 5

And I do not believe we need an exhaustive body of case law

to conclude that it is improper to impose a penalty based on

hostility or animus toward a particular religion, assuming

that is what happened here.

Although it is possible that after discovery Damask may

have a “level of generality” argument, the questions we need

to consider first are simply what the quiz questions meant

and what Damask was teaching, which require factual

development. The majority thus proves my point in

repeatedly emphasizing that qualified immunity turns on the

specific context of the case. Maj. Op. 41. It is that context

that I believe necessitates further factual inquiry before the

qualified immunity question can be confidently answered.

5

A constitutional right that is more precisely defined at the outset

requires less case-by-case development to illuminate its meaning.

Therefore, the level of generality problem is less acute. This reasoning

should hardly be considered controversial, as the majority incorrectly

asserts.

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 87

That is why our case law recognizes the difficulties

associated with making qualified immunity determinations

at the motion-to-dismiss stage, difficulties that I believe are

present here. Keates v. Koile, 883 F.3d at 1234; O’Brien,

818 F.3d at 936; Wong, 373 F.3d at 956. As we explained in

Keates in reversing the grant of qualified immunity on a Rule

12(b)(6) motion, “our decision at the motion-to-dismiss

stage sheds little light on whether the government actors

might ultimately be entitled to qualified immunity ‘were the

case permitted to proceed, at least to the summary judgment

stage’ and the court is presented with facts providing context

for the challenged actions.” 883 F.3d at 1235 (quoting

Wong, 373 F.3d at 957) (emphasis added); see also O’Brien,

818 F.3d at 936 (“Once an evidentiary record has been

developed through discovery, defendants will be free to

move for summary judgment based on qualified

immunity.”).

The majority concedes that “district courts sometimes

delay a decision on qualified immunity until the parties have

had the opportunity to develop a more comprehensive

factual record.” Maj. Op. 45–45. But it concludes that “two

unique features” of this case make qualified immunity

appropriate at the pleadings stage. Maj. Op. 45. I disagree

with that assessment.

The first “unique” feature that the majority identifies is

the fact that the plaintiffs “attached substantial documentary

evidence to their Complaint,” including the quiz questions

and offending slides. Maj. Op. 45. The majority thus

believes it has “precisely the materials that ordinarily would

have been produced in discovery.” Maj. Op. 46. This is not

persuasive.

Plaintiffs often attach exhibits to their complaints. But

that standard practice does not invariably, or on its own,

88 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

justify granting a motion to dismiss, including on qualified

immunity grounds. Equally unfounded is the majority’s

suggestion that there are no further documents out there that

could bear on this case. There is no basis for that

assumption.

One can easily imagine the many document requests that

Sabra could legitimately serve on the defendants that would

shed further light on Damask’s facially problematic quiz

questions and how he taught his class. These include but are

not limited to documents on which Damask relied in

preparing the quiz; documents on which Damask relied in

preparing the PowerPoint; Damask’s communications with

the College and others about Sabra’s complaints or

Damask’s controversial teaching materials; Damask’s class

notes; Damask’s earlier versions and drafts of these course

materials; any past complaints made to Damask or the

College about Damask’s course; documents bearing on the

College’s initial decision to condemn Damask’s actions, and

its about-face on that issue; documents related to the

College’s own investigation into the events giving rise to this

case; and so on.

The majority tells us that “[t]he context of this case

weighs heavily against any argument that the violation is

obvious.” Maj. Op. 34. But it then in the name of qualified

immunity prevents Sabra from conducting even basic

document discovery into the surrounding context. That has

it backwards. There is no basis to conclude that the relevant

documents in this case are only the ones Sabra himself had

on hand and attached to his complaint (something Sabra was

not even required to do in the first place).

A second “unique feature” of this case, the majority tells

us, is that because Damask’s class “was a self-guided course

administered entirely online,” “we have before us the

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 89

universe of evidence we might wish to consider in resolving

Damask’s claim of qualified immunity.” Maj. Op. 46.

Indeed, the majority goes so far as to conclude, “[d]iscovery

would not serve to sharpen our understanding of the factual

picture in this case.” Maj. Op. 46. These suggestions are

unfounded.

I have explained above why it is folly to assume that

there are no other relevant documents besides the ones Sabra

attached to his complaint. But the majority’s secondary

suggestion that this case could be decided purely on a paper

record is entirely at odds with the basic discovery practices

authorized in federal court, most notably oral testimony. See

Fed. R. Civ. P. 30. Our system places a premium on putting

witnesses under oath and requiring them to explain their

actions. Damask’s under-oath explanation for his quiz

questions is at present among the most critical information

we are lacking. There is thus nothing “unique” about the fact

that Sabra’s claims are based in documentary evidence.

Many legal claims can be so described. What is unique,

however, is the majority’s insistence that we can make

factual judgments at the pleading stage, without any of the

basic discovery that the Federal Rules allow.

The majority nonetheless concludes that “[e]ven if

discovery somehow were to produce additional relevant

evidence”—which it of course would—we can still cut off

this lawsuit at the pleading stage because “[n]o matter what

we might learn in discovery . . . Damask would still be

shielded by qualified immunity.” Maj. Op. 46. It is not

apparent to me how the majority can say this. The majority

does not dispute that Sabra has pleaded a Free Exercise

Clause violation. The majority asserts that it has “found no

cases that would have put Damask on notice that his conduct

might be unconstitutional under the circumstances here.”

90 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

Maj. Op. 46–46. But no specific case on point is required.

See, e.g., Sharp v. City of Orange, 871 F.3d 901, 911 n.7 (9th

Cir. 2017); Browder v. City of Albuquerque, 787 F.3d 1076,

1082–83 (10th Cir. 2015) (Gorsuch, J.). And, in any event,

there are legions of cases establishing the basic Free

Exercise clause principle that the state cannot condition a

benefit or impose a penalty based on a person’s adherence or

non-adherence to a religious belief.

The majority replies that “we have never held under

comparable circumstances that a test requiring students to

select answers in conflict with their personal religious

convictions (or risk losing points) imposes a substantial

burden on religious practice.” Maj. Op. 39–40. But that

understates Sabra’s allegations substantially. What we have

here is a student who, on the face of a highly constrained

multiple-choice exercise, was seemingly required to affirm

a particular view of his religion or else receive a lower grade,

with a problematic PowerPoint presentation as our primary

context and, as of yet, no evidence of the instructor’s

objectives.

The majority’s reliance on Wood v. Arnold, 915 F.3d 318

(4th Cir. 2019), which the majority describes as “the most

instructive authority” it has identified, only underscores how

the majority errs in affirming the denial of qualified

immunity at the motion to dismiss stage. Maj. Op. 40. In

Wood, a public high school taught a unit on the “Muslim

World” in a world history course, during which students

were asked to complete a worksheet covering the “beliefs

and practices” of Islam. 915 F.3d at 312–13. This

assignment specifically appeared under the heading “Beliefs

and Practices: The Five Pillars.” Id. at 317. One fill-in-the-

blank question asked students to fill in the underlined words:

SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 91

“There is no god but Allah and Muhammad is the messenger

of Allah.” Id. at 312–13.

Wood does not remotely support awarding Damask

qualified immunity at the motion to dismiss stage. As the

majority concedes in a footnote, Wood did not even involve

a Free Exercise claim. Maj. Op. 40 n.10. The core theory

Sabra advances was thus not even discussed in Wood. The

facts of Wood also bear no material resemblance to

Damask’s quiz questions and pejorative PowerPoint slides

because, among many other reasons, the disputed

assignment in Wood contained clear context (“Beliefs and

Practices: The Five Pillars”) confirming that students were

merely being asked to “identify the tenets of Islam.” 915

F.3d at 317. The context here is hardly so conclusive, and

instead raises even more questions.

Finally, and perhaps most critically, Wood was resolved

at the summary judgment stage. Id. at 313. Although the

plaintiff’s allegations in Wood pale in comparison to

Sabra’s, the plaintiff in Wood had the opportunity to conduct

discovery—which the majority improperly denies Sabra.

Wood thus if anything confirms that the majority acts

prematurely in letting Damask out of this case at the pleading

stage. Unfortunately, this is only of a piece with the

majority’s improper determination to prevent the further

e

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