Opposition Brief — Peloza v. Capistrano Unified School District

No. 94-1423 t MAR 2 4 1995

4

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I n T h e ee Ok Ws. tT ere ar aan

Supreme Court of the United States

October Term, 1994

JOHN E. PELOZA,

Petitioner,

CAPISTRANO UNIFIED SCHOOL DISTRICT, et al.,

Respondents

+ emma Stiletenisentigntieneneiniia

On Petition For Writ Of Certiorari

To The Ninth Circuit Court Of Appeal

7 — ¥ Siatibliiaitaaciceaaeaatgittettialesiitita

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

— FOR THE NINTH CIRCUIT

- +. eee

Davip C. LarsEN*

JerpReEY WerTHEIMER

RuTAN & TUCKER

611 Anton Blvd., Suite 1400

Costa Mesa, California 92626

(714) 641-5100

GERALDINE JAFFI

ORANGE County DerartTMENt

or EDUCATION

SCHOOLS LEGAL SERVIC!

200 Kalmus Drive

Costa Mesa, California 92626

(714) 966-4214

*Counsel of Kkecord

QUESTIONS PRESENTED

Based upon the Complaint, documents provided by

defendants which were incorporated therein by reference,

and judicially noticed public records dealing with issues

raised in the Complaint, the District Court dismissed

Plaintiff John Peloza’s federal civil rights and conspiracy

lawsuit. The United States Court of Appeals for the Ninth

Circuit affirmed that decision.

1. Does a public school district have the right

and/or duty to preclude a teacher from religious prosely-

tization of students when students are in attendance pur-

suant to compulsory education laws and the teacher is on

paid contract time?

2. Is the Ninth Circuit’s analysis in this case dealing

with teacher speech and the Establishment Clause in

conflict with the decisions of other circuits?

3. Did the Ninth Circuit err when, as part of its

consideration of a motion for dismissal brought under

Federal Rule of Civil Procedure 12(b)(6), it reviewed doc-

uments that were judicially noticed, and documents that

were incorporated into the pleadings by reference?

TABLE OF CONTENTS

Page

CUES ES PR GOIU EES occ ctnnsncesdecsennseace i

SA CF PATE I Me oo escsdecdesustveteawiaue iil

CMe HEAT OOMED 660 oc sak dideenh sensuueeuseneny ]

Say STUUR shone so vade sv 6s bees eee eee 1

EPR P hs SUING 6b. 0 best andcas teases ]

CONSTITUTIONAL AND STATUTORY PROVI-

SURIPE 5s 0s odd Geis des bed eee aaa ee 2

PEASE EEIES COE COU CAs ois ckcctesdaeweaemenes 2

SUMMARY OF ARGUMENT....................... 8

REASONS FOR DENYING THE WRIT............. 9

I. THE DISTRICT HAD BOTH THE RIGHT AND

THE RESPONSIBILITY TO INSURE THAT

PUBLIC SCHOOL TEACHERS DO NOT USE

THEIR POSITIONS FOR FURTHERING THEIR

OWN PERSONAL RELIGIOUS INTERESTS .. 9

Il. THERE IS NO CONFLICT BETWEEN THE

CIRCUITS IN CASES INVOLVING TEACHER

DISCIPLINE OR RESTRICTIONS RELATING

TO SPEECH AND ACADEMIC FREEDOM... 14

III. DISMISSAL OF THIS ACTION WAS APPRO-

PRIATE IN LIGHT OF DOCUMENTS JUDI-

CIALLY NOTICED AND INCORPORATED IN

THE COMPLAINT BY REFERENCE ......... 17

oe Ee eer ey eee ety Fs 19

APPENDIX A - Relevant Statutory Provisions...... la

APPENDIX B - Declaration of Thomas B.

Anthony and Attached Directives .... 1b

———————

ill

TABLE OF AUTHORITIES

Page

CASES

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675

(EEE COR AES eae ag a 10

Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991)...15, 16

Board of Educ. of the Westside Community Schools v.

Mergens, 496 U.S. 226 (1990)............... 11, 12, 13

Conmice 0. Myers, 461 1.5. 136 (1983)... .........645. 12

Cornelius v. NAACP Legal Defense and Educ. Fund,

RE PE OEE os nade sd eek cede svasdaaeeesenns 12

East Hartford Educ. Assoc. v. Board of Educ., etc., 562

A ES sf a eee 14

Edwards v. Aguillar, 482 U.S. 578 (1987)........ 4, 11, 18

Epperson v. Arkansas, 393 U.S. 97 (1968) .......... 18, 19

Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d

as a de 17

Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012 (ist Cir.

Oe c ake UW iks Ve ad e Nn ba Hoe ee e668 08 17

Hazelwood School Dist. v. Kuhlmeir, 484 U.S. 260

ASSES Si lb ee a ae 2, 10, iz, 13,

Johnson v. Huntington Beach Union High School

Dist., 68 Cal. App. 3d 1, 137 Cal. Rptr. 43, cert.

Ae 8 Ee Be. og 2 rr 7

Katz v. McAulay, 438 F.2d 1058 (2d Cir. 1971), cert.

MI, A RS COPA oc ccc sees eccectecees 7

Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969)........ 14

Kramer v. Time-Warner, Inc., 937 F.2d 767 (2d Cir.

TABLE OF AUTHORITIES — Continued

Page

Lamb's Chapel v. Center Moriches Union Free School

UO i cctcore WY. seams SO Oe AAs BEES CPR) oe esis #, 43

Leavitt v. Committee for Public Educ. and Religious

Fo eR BOM oe 2): Sr rene ere mers 1]

Lemon v. Kurtzman, 403 U.S. 602 (1971).............. 11

Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279

Se ls Rs Oi sek wae ch ok oak ak ae aene ta eeea 17

Miles v. Denver Public Schools, 944 F.2d 773 (10th

Re BMED 62a 05a 4 Cade Gee uwas Hee ERE ANE EEA eR KS 15

Minarcint v. Strongsville City School Dist., 541 F.2d

ee eo, | er ere er er eee Pe 15

Nicholson v. Board of Educ., 682 F.2d 858 (9th Cir. |

ee poe reer erry ithe era Shit einmane ae 15

Peloza v. Capistrano Unified School Dist., 782 F.

DU. BREE Gt Ge. FONE sok sa cicenasevercsvcccs 1

Peloza v. Capistrano Unified School Dist., 37 F.3d 517

Sea RE GS i064 Pu sears the eewedcerk ens eens dees 1

Pension Benefit Guar. Corp. v. White Consol. Indus.,

mc., GS Foe Ti9s Cee Cie. F999)... ww. cee cence: 17

Perkins v. Silverstein, 939 F.2d 463 (7th Cir. 1991) .... 17

Perry Educ. Assoc. v. Perry Local Educators Assoc.,

eS a EOD 6k er pain WH ok Fe eens Me kee 12

Pickering v. Board of Educ., 391 U.S. 563 (1968)

E piiratiets eae Ss bak as bau Re A a eS oe ‘a, bh, 2% Lo

Rankin v. McPherson, 483 U.S. 378 (1987) ............ 12

Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990) .... 17

TABLE OF AUTHORITIES - Continued

Page

Tinker v. Des Moines Indep. Community School Dist.,

DPS US. SD CT) 3 oc kn odes hhc aseess 7, 9, 10, 14, 16

Venture Assocs. Corp. v. Zenith Data Systems Corp.,

tg eS! By Ee Ew ae, | ery errr a 17

Ward v. Hickey, 996 F.2d 448 (1st Serre 15

Washington Legal Found. v. Massachusetts Bar

Found., 993 F.2d 962 {ist Cir. P99) «0.6.2 cncccunes 17

Watterson v. Page, 987 F.2d 1 (Ist Cir. 1993) ......... 17

Webster v. New Lenox School Dist. No. 122, 917 F.2d

fio ir. oe a) rr ee eee ray 17

Zykan v. Warsaw, 631 F.2d 1300 (7th Cir. 1980)....... 15

CONSTITUTIONS, STATUTES AND RULES

tS. Comet. AONE. fo. os cc sevens: - eee

20 U.S.C.A. § 4071(c) (West 1990)...... eer

28 U.S.C.A. § 1254(a) (West 1993) .........---- ee eee. ]

28 U.S.C.A. § 1331 (West 1995)....... hg aA taal 1

42 U.S.C.A. § 1961 (West 1994)............ cee ee cease l

42 US.C.A. § 1983 (West 1994).............--5. 1, 2, 19

42 U.S.C.A. § 1985 (West 1994)...........-...0.0055 1, 19

i Bs a ak... rer rere mera ry. ar TZ

Cal. Educ. Code, § 44807 (West 1993) ............. 7, 10

REGULATIONS

Cal. Code Regs. tit. 5, § 5552 (1995) .............. 7, 10

Cal. Code Regs. tit. 5, § 5570 (1995) ........... .7, 10

V1

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS

Clarick, Public School Teachers and the First Amend

ment: Protecting the Right to Teach, 63 N.Y.U.

Se ke: Bt Re) errr re vers

RELIEF REQUESTED

Defendants respectfully request that this Court deny

Peloza’s Petition for Writ of Certiorari to review the

decision of the United States Court of Appeals for the

Ninth Circuit.

OPINIONS

The United States Court of Appeals for the Ninth

Circuit issued its decision on October 4, 1994. The deci-

sion is reported as Peloza v. Capistrano Unified School Dist.,

37 F.3d 517 (9th Cir. 1994). The decision affirmed the

judgment of the United States District Court for the Cen-

tral District of California filed on February 27, 1992,

which is reported as Peloza v. Capistrano Unified School

Dist., 782 F.Supp. 1412 (C.D. Cal. 1992).

¢

JURISDICTION

Peloza’s Complaint alleged a civil action for depriva-

tion of rights under 42 U.S.C.A. sections 1981, 1983 and

1985 (West 1994). The District Court therefore had juris-

diction pursuant to 28 U.S.C.A. section 1331 (West 1993).

This Court has jurisdiction pursuant to 28 U.S.C.A. Sec-

tion 1254(a) (West 1993).

ee

CONSTITUTIONAL AND STATUTORY PROVISIONS

—

The First Amendment to the United States Constitu- )

tion provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Govern-

ment for a redress of grievances.

In pertinent part, Title 42 U.S.C.A. section 1983 (West

1994) states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

Relevant state statutes and regulations are set forth in

Appendix A.

STATEMENT OF THE CASE |

Plaintiff John Peloza is a biology teacher at a public

high school. Parents, teachers and students began expres-

sing concerns that during paid contract time Peloza was

advocating his religious beliefs to students in an attempt

ee

to proselytize them. Concerns were also raised over Pel-

o0za’s apparent refusal to follow the established curricu-

lum when teaching the subject of evolution. The

Capistrano Unified School District (“District”), pursuant

to its duty to avoid an Establishment Clause violation,

directed Peloza to stop.

On September 3, 1991, Peloza filed his Complaint for

Damages and for Injunctive and Declaratory Relief

against Defendants the District, the Board of Trustees of

the District, the principal and assistant principal of Cap-

istrano Valley High School, several teachers at the high

school, and an attorney employed by the Orange County

Department of Education.

The primary thrust of the Complaint, as set forth in

the first paragraph, concerned Peloza’s desire, based on

his religious principles, to avoid teaching the established

biology curriculum relating to evolution. (Appendix to

Petition 58a-60a). The Complaint incorporated by refer-

ence a written directive to Peloza, which dealt not only

with teaching of the established curriculum but his pros-

elytizing of students both within and outside his class-

room. (Appendix to Petition 64a, para. 26.) Copies of that

written directive and an earlier directive also incorpo-

rated into the Complaint by reference were supplied to

the District Court as part of the Defendants’ motion for

dismissal under Federal Rule of Civil Procedure 12(b)(6).

(The Declaration of Thomas Anthony, with the two

exhibits setting forth the entire text of the directives,

incorporated by reference into the Complaint in para-

graph 26, is attached hereto as Appendix B.)

In addition to directing Peloza to comply with the

State’s Science Framework in teaching evolution,! the

written reprimand set forth complaints from parents with

respect to Peloza’s proselytizing of students both during

and outside of class, and contained specific directives

with respect to his expected future conduct. (Appendix B

at 4b-14b.) The parents complained about conversations

with students during class, at lunch time, and after class.

During these conversations, Peloza preached from the

Bible and stated his convictions that those who did not

believe in Jesus would go to hell, and would be subject to

constant “burning, your teeth are getting knocked out,

you are always suffering, there are demons around you

for all eternity, and you can never leave.” (Appendix B at

9b.) He went so far as to inform one Jewish student that

because she was thinking of converting, she in fact was

converted; he prayed with her and then told her that she

was irrevocably converted. (Appendix B at 9b-10b.)

These types of complaints prompted the District to

give Peloza the following directive on February 7, 1991:

1 At Defendants’ request, the District Court also took judi-

cial notice of the California Department of Education’s Science

Framework which Peloza was required to follow. (See Appendix

to Petition at 4a.) As noted by the incorporated directive, Peloza

was specifically directed to teach the theory of evolution as

required by the State Framework. (See Appendix B at 13b-14b.)

Although the major thrust of Peloza’s arguments at both the

trial and appellate court levels was his contention that he

should not be required to teach evolution as part of the standard

biology curriculum, Peloza has apparently decided not to pur-

sue that issue as part of this Petition, since the issues raised in

that respect were in fact decided by this Court in Edwards v.

Aguillar, 482 U.S. 578 (1987).

You are hereby directed to refrain from any

discussion of religion in any of your science

classes, and to refrain from attempting to influ-

ence your students to accept your own personal

religious or philosophical beliefs. You are

directed to follow the course outlines in the

subject area of high school biology and, more

specifically, in the teaching of evolution.

You are further directed to refrain from making

any comments about Jesus Christ, about the fact

that people who do not believe in Jesus Christ

burn in hell, and to refrain from discussing reli-

gion or quoting from the Bible during any of

your classes. If a student does ask you a ques-

tion about religion, you are directed to refer

them to their parents or to their own clergy

person for guidance. (Appendix B at 13b-14b.)

Peloza’s constant inquiries and assertions that during

the school day he was free to conduct himself as he

desired outside of the classroom (Appendix to Petition at

65a-66a, para. 32), led the District to expand its original

directive. On May 13, 1991, the District issued a second

expanded directive. The May 13, 1991, directive is set

forth in paragraph 43 of the Complaint, as follows:

You are hereby directed to refrain from any

attempt to convert students to Christianity or

initiating conversations about your religious

beliefs during instructional time, which the Dis-

trict believes includes any time students are

required to be on campus as well as the time

students immediately arrive for the purposes of

attending school for instruction, lunch time, and

the time immediately prior to students’ depar-

ture after the instructional day. Please be

advised that should you fail to comply with

these written directives, or should there be any

additional incidents of this kind, further disci-

plinary action will be considered. (Appendix to

Petition at 68a, para. 43.)

As noted in the Ninth Circuit opinion:

Peloza seeks a declaration that this definition of

instructional time is too broad, and that he

should be allowed to participate in student-initi-

ated discussions of religious matters when he is

not actually teaching class. (Appendix to Peti-

tion at 46a-47a; see also paragraph 3 of the

Complaint (Appendix to Petition at 60a)

wherein Peloza asserts that the definition of

instructional time is too broad.)?

The District consistently has taken the position that

while acting in a paid status as a public school teacher,

Peloza was not free to use his District paid time and

position to preach his religious beliefs to students who

were present pursuant to compulsory attendance laws.

? Throughout the record of these proceedings there are

alternate references to “instructional time” and “contract time,”

which, in effect, have essentially the same meaning when stu-

dents are present. (See Petition at page 4 for definition of con-

tract time as “anytime while working as a teacher.” See also,

Appendix to Petition at 47a.) In all respects Plaintiff is on paid

time and functioning as a teacher. In his Opening Brief to the

Ninth Circuit, Plaintiff stated:

Contract time is the time when a teacher is required to

be on the school premises but is not involved in class-

room instruction. .. . Again, Peloza sought a declara-

tion of his rights to have private, student-initiated

discussions on religious topics during his contract

time and not during classroom time. (Appellant's

Opening Brief to the Ninth Circuit at pp. 47-48.)

—

ame

The District’s position mirrors the California Education

Code and state regulations which include within the

instructional day times when students are required by

compulsory attendance laws to be present at school. Cal.

Code Regs. tit. 5, §§ 5552, 5570 (1995); Cal. Educ. Code,

§ 44807 (West 1993). See also Johnson v. Huntington Beach

Union High School Dist., 68 Cal. App. 3d 1, 14, n. 12, 137

Cal. Rptr. 43, 50, cert. denied, 434 U.S. 877 (1977). Cf. Katz

v. McAulay, 438 F.2d 1058, 1061 (2d Cir. 1971), cert. denied,

405 U.S. 933 (1972).

In considering this issue, the District Court noted

among other things that the District has a strong interest

in maintaining its secular purpose of educating students

and protecting students’ right to freedom from religious

influence and indoctrination in public school classrooms.

(Appendix to Petition at 13a.) The court concluded that

the District correctly instructed Peloza to refer religious

issues raised by students to their parents or clergy. The

court noted:

This instruction is not a violation of the plain-

tiff’s first amendment right to free speech, but

rather a directive to insure that religious dogma

is not taught in the public school. (Appendix to

Petition at 14a.)

In upholding the decision, the Ninth Circuit, after

reviewing this Court’s decisions in Tinker v. Des Moines

Indep. Community School Dist., 393 U.S. 503, 506-07 (1969)

(“Tinker”), and Lamb’s Chapel v. Center Moriches Union Free

School Dist., __ U.S. __, 113 S.Ct. 2141, 2148 (1993),

concluded that the District's directive was consistent with

its constitutional responsibility to avoid violation of the

Establishment Clause. The court majority stated:

While at the high school, whether he is in the

classroom or outside of it during contract time,

Peloza is not just any ordinary citizen. He is a

teacher. He is one of those especially respected

persons chosen to teach in the high school’s

classroom. He is clothed with the mantle of one

who imparts knowledge and wisdom. His

expressions of opinion are all the more believ-

able because he is a teacher. The likelihood of

high school students equating his views with

those of the school is substantial. To permit him

to discuss his religious beliefs with students

during school time on school grounds would

violate the Establishment Clause of the First

Amendment. Such speech would not have a sec-

ular purpose, would have the primary effect of

advancing religion, and would entangle the

school with religion. (Appendix to Petition at

47a-48a.)

Peloza sought a rehearing, with a suggestion of

rehearing en banc, with the United States Court of

Appeals for the Ninth Circuit, which was denied on

November 25, 1994. (Appendix to Petition at 57a.) This

Petition for Writ of Certiorari followed.

4

SUMMARY OF ARGUMENT

The District issued specific directives to Peloza pre-

cluding him from proselytizing students both in and out

of the classroom when acting as a paid teacher. Both the

trial and appellate courts reviewed those directives as

part of their respective proceedings.

In issuing those directives, the District acted well

within its rights and responsibilities as recognized by

ao

decisions from this Court. In light of the well-established

state of the law and a lack of any real conflict between

any of the circuits, no basis justifies granting the Petition

for Writ of Certiorari.

REASONS FOR DENYING THE WRIT

|

THE DISTRICT HAD BOTH THE RIGHT

AND THE RESPONSIBILITY TO INSURE

THAT PUBLIC SCHOOL TEACHERS DO NOT USE

THEIR POSITIONS FOR FURTHERING THEIR

OWN PERSONAL RELIGIOUS INTERESTS.

In Hazelwood School Dist. v. Kuhlmeir, 484 U.S. 260

(1988) (“Hazelwood”), this Court recognized that public

schools do not necessarily qualify as public fora and that

school officials may impose reasonable restrictions on the

speech of students, teachers and other members of the

school community. 484 U.S. at 267. The Court distin-

guished Tinker on the basis that there is a substantial

difference between tolerating and promoting individual

speech. 484 U.S. at 270-271. With respect to a school

district’s right to be free from promoting particular

speech, the Court recognized that a school had authority

over such school-sponsored matters as publications, the-

atrical productions, and “other expressive activities that

students, parents, and members of the public might rea-

sonably perceive to bear the imprimatur of the school.”

Id. The Court went on to note that these types of activities

“may fairly be characterized as part of the school curricu-

lum, whether or not they occur in a traditional classroom

10

setting, so long as they are supervised by faculty mem-

bers and designed to impart particular knowledge or

skills to student participants and audiences.” 484 U.S. at

271.3

The Court concluded that district officials were enti-

tled to exercise greater control over this type of expres-

sion in order to “assure ... that the views of the

individual speaker are not necessarily attributed to the

school.” Id. In Hazelwood, this Court found no offense to

the First Amendment when control was asserted over

speech in school-sponsored expressive activity so long as

the control was reasonably related to legitimate ped-

agogical concerns. 484 U.S. at 272.

A key character in the school-sponsored educational

process is the paid school teacher. Not only is the teacher

involved in the presentation of information or curriculum

but he/she is also a disciplinarian, holding students respons-

ible for their conduct at all times while on the school

campus. Cal. Educ. Code § 44807 (West 1993). See also Cal.

Code Regs. tit. 5, § 5552 (West 1995). State law requires that

the teacher be present at least 30 minutes before the instruc-

tional day begins. Cal. Code Regs. tit. 5, § 5570 (West 1995).

The teacher also serves as a role model. “[W]hether con-

sciously or otherwise,” the teacher “demonstrates the appro-

priate form of civil discourse and public political expression

by his conduct and deportment in and out of class.” Bethel

School Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986). See also

3 In Tinker, the Court also recognized that the cafeteria,

playing field, or other on-campus areas where students are

present during authorized hours are important to the educa-

tional process. 393 U.S. at p. 512.

a

11

Edwards v. Aguillar, 482 U.S. 578, 583 (1987); and Board of

Educ. of the Westside Community Schools v. Mergens, 496 U.S.

226, 251 (1990). Because teachers serve a unique role as

disciplinarians and role models, a school district has the

right to hold them accountable for their conduct, including

speech, to insure that it furthers the interest and purpose for

which they are hired. See Pickering v. Board of Educ., 391 U.S.

563 (1968) (“Pickering”). Teaching religion is clearly not a part

of that purpose and, in fact, is contrary to the Establishment

Clause protections guaranteed to students and their parents.

As noted by this Court in Edwards v. Aguillar:

Families entrust public schools with the educa-

tion of their children, but condition that trust on

the understanding that the classroom will not

purposely be used to advance religious views

that may conflict with the private beliefs of the

student and his or her family. Students in such

institutions are impressionable, and their atten-

dance is involuntary.

482 U.S. at 583-84.

This Court has further declared that, “[t]he state

must be certain, given the religion clauses, that subsi-

dized teachers do not inculcate religion.” Lemon v. Kurtz-

man, 403 U.S. 602, 619 (1971). See also Leavitt v. Committee

for Public Educ. and Religious Liberty, 413 U.S. 472, 480

(1973) (“[t]he state is constitutionally compelled to assure

that the state-supported activity 1s not being used for

religious indoctrination.”)

Congress has also recognized that teacher involve-

ment in religious discussions while on paid time violates

the Establishment Clause. In the 1984 Equal Access Act,

12

—

which enables students to participate in religious discus-

sions where a limited open forum has been established,4

Congress specifically provided that school district

employees could only attend religious group discussions

in a non-participatory capacity. 20 U.S.C.A. § 4071(c)(3)

(West 1990). Subsequently, this Court recognized that this

non-participation by school authorities was essential in

order to insure that implementation of the Equal Access

+ Public school is clearly not a forum for religious expression

by teachers. See discussion of Hazelwood, supra, at pp. 10-11.

While it may become a limited open forum for student thought

and expression where religious speech is accommodated, that

accommodation clearly does not require that teacher expression

of religious sentiment be included. 20 U.S.C.A. § 4071(c) (West

1990). Board of Educ. of the Westside Community Schools v. Mergens,

496 U.S. 226, 251-253 (1990). Moreover, this Court has recognized

that the state may reasonably regulate speech to insure that it

comes within the intended purpose of a non-public forum pro-

vided that it does not suppress expression merely because of

opposition to a speaker’s particular viewpoint. See Perry Educ.

Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 45-46 (1983);

Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 806

(1985); Hazelwood, 484 U.S. at 272. For public employees acting

within the workplace, that regulation may include speech which

is detrimental to the purpose for which they are employed. See

Pickering; Rankin v. McPherson, 483 U.S. 378 (1987); Connick v.

Myers, 461 U.S. 138 (1983).

Each of these cases recognizes the validity of content-based

restrictions on public employee speech. See particularly discus-

sion in Connick v. Myers, 461 U.S. at 147-148. Furthermore, asser-

tions that the Peloza case involves viewpoint restriction are not

well-taken. Nowhere in the Complaint is there an allegation that

the District has allowed some teachers to engage in religious

discussion with students. That Peloza alone may have been given

a specific directive in this regard is nothing more than a function

of the fact that he alone aggressively proselytized students,

prompting parental complaints requiring District intervention.

13

Act. Board of Educ. of the Westside Community Schools v.

Mergens, 496 U.S. 226, 251-253, 260 (1990) (Kennedy, J.

concurring).

Upon receiving complaints from parents and stu-

dents that Peloza, in his capacity as a teacher, was

actively engaged in sharing his beliefs relating to the

Bible, Jesus Christ, hell, salvation, and the conversion

process, the District acted to insure that if these discus-

sions were occurring, they would not continue. The Dis-

trict instructed Peloza not to use his position as a teacher

to advance his religious beliefs. (Appendix B at 13b-14b.)

The District instructed him to refer student questions

relating to religion to parents or clergy. (Appendix B at

14b.)

Peloza asserted a right to engage in those discussions

during lunch and other times when students were not

actually in class. (See Appendix to Petition at 61a-62a,

para. 32). The District clarified the matter to insure Peloza

understood that instructional time included time when

students were present at school as a result of compulsory

attendance laws and when he was on paid duty (Appen-

dix to Petition at 68a, para. 43). In doing so, the District

followed this Court’s mandate to insure that a subsidized

teacher is not inculcating religion, thereby protecting the

constitutional rights of students and parents (which is a

legitimate pedagogical concern). Hazelwood School Dist. v.

Kuhlmeir, 484 U.S. 260, 272 (1988). Indeed, the Ninth

Circuit recognizes the District had a compelling interest

to insure it did not violate the Establishment Clause.

(Appendix to Petition at 47a.) See also Lamb’s Chapel v.

Center Moriches Union Free School Dist., __ U.S. __, 113

S.Ct. 2141, 2148 (1993).

14

II

THERE IS NO CONFLICT BETWEEN THE

CIRCUITS IN CASES INVOLVING TEACHER

DISCIPLINE OR RESTRICTIONS RELATING TO

SPEECH AND ACADEMIC FREEDOM.

Peloza entices this Court to grant a Petition for Writ

of Certiorari by asserting a non-existent conflict between

the circuits. Peloza asserts that this Court’s decisions in

Pickering and Tinker are in conflict. Pickering and Tinker

are however, entirely consistent. Just as there is no con-

flict between those two decisions, there is no conflict

between the circuits. Moreover, as recognized by this

Court, questions relating to teacher speech are often

decided on the basis of their individual circumstances.

Pickering, 391 U.S. at 569. Finally, the cases Peloza relies

upon do not concern the Establishment Clause.®

> In discussing many of the cases which Peloza cites as

creating two separate and distinct tests, one commentator cited

by Peloza in his brief has noted that the tests “closely approxi-

mate” each other, and further notes that “both tests” offer

teachers substantial first amendment protection of their speech.

Clarick, Public School Teachers and the First Amendment: Protecting

the Right to Teach, 63 N.Y.U. L.Rev. 693, 708 (June 1990). That

same commentator also concludes that cases involving the per-

missibility of teaching religious values in schools decided on

establishment grounds are of little value in reaching a deter-

mination on regulating teacher expression that does not involve

religious values. /d., at pp. 696-697. Only one of the circuit cases

Peloza cites deals with the religion issue, which was fundamen-

tal to the determination of both courts below. Moreover, an

actual reading of the cases cited at page 13 of the Petition does

not support the conclusion reached. Some of the cases do not

even discuss Pickering or Tinker. See, e.g., Keefe v. Geanakos, 418

F.2d 359 (1st Cir. 1969); East Hartford Educ. Assoc. v. Board of

15

In Pickering v. Board of Educ., 391 U.S. at 568, this

Court concluded that a school district acting as an

employer has an interest in regulating the speech of its

employees to insure that its public mission is accom-

plished. The Court recognized that teachers do not “relin-

quish the First Amendment rights they would otherwise

enjoy as citizens to comment on matters of public interest

in connection with the operation of the public schools in

which they work.” Id. The Court concluded that, if the

teacher’s speech would harm the school’s ability to oper-

ate efficiently or inhibit the teacher’s ability to carry out

his/her duties, the speech could be regulated. See 391

U.S. at 572-73. There is nothing inconsistent between this

holding and this Court’s decision in Tinker.

In Tinker, the Court recognized that students, as well

as teachers, did not shed their constitutional rights at the

Educ., etc., 562 F.2d 838 (2d Cir. 1977). Others do not involve

teacher rights to speech but the rights of students to particular

instructional materials. Zykan v. Warsaw, 631 F.2d 1300 (7th Cir.

1980); Minarcini v. Strongsville City School Dist., 541 F.2d 577 (6th

Cir. 1976). The most recent decisions cited are based on this

Court's analysis in Hazelwood and conclude that the issue is one

of limitations which are reasonably related to pedagogical con-

cerns. See Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993); Miles v.

Denver Public Schools, 944 F.2d 773 (10th Cir. 1991); Bishop v.

Aronov, 926 F.2d 1066 (11th Cir. 1991). Indeed, it is difficult to see

any difference between the standard applied in these last three

cases and that applied by the Ninth Circuit in Nicholson v. Board

of Educ., 682 F.2d 858 (9th Cir. 1982), which allowed a school

district to insure that teacher expression did not impede the

teacher’s proper performance of duties in the classroom or

interfere with the regular operations of schools. Nicholson was

cited with approval by this Court in Hazelwood, 484 U.S. at 273,

n. 7.

16

schoolhouse door. 393 U.S. at 506. As in Pickering, the

Court in Tinker recognized the obligation of school offi-

cials to prescribe and control conduct in the schools. 393

U.S. at 507. In dealing with student speech, the Court

concluded that the case did not concern speech that

intruded on the rights of other students. 393 U.S. at 508.

The Court also concluded that the public school had a

legitimate interest in regulating speech which would sub-

stantially interfere with the work of the school or impinge

upon the rights of others. 393 U.S. at 509, 513. The Tinker

court also recognized that the students’ right to freedom

of speech would yield to a constitutionally valid reason

for regulation. 393 U.S. at 511.

In this case, both the Ninth Circuit and District Court

recognized Tinker and concluded that the directives

issued by the Defendants were an appropriate regulation

of employee speech in light of the constitutional man-

dates of the Establishment Clause, combined with the

rights of students and parents to be free from proselytiza-

tion by a paid teacher in a public school setting. (Appen-

dix to Petition at 13a and 47a.) These decisions by the

courts below are consistent with both Tinker and Picker-

Ing.

The Ninth Circuit’s decision in this case is substan-

tially similar to decisions in the Tenth and Eleventh Cir-

cuits dealing with teachers involved in religious speech

while performing official duties. Rather than being incon-

sistent with these circuits as asserted at page 13 of the

Petition, the Ninth Circuit in this case reached a similar

result in recognizing a school district’s right to restrict

religious speech directed at students by public school

teachers while on duty. Bishop v. Aronov, 926 F.2d 1066

17

(11th Cir. 1991); Roberts v. Madigan, 921 F.2d 1047 (10th

Cir. 1990).

Ill

DISMISSAL OF THIS ACTION WAS

APPROPRIATE IN LIGHT OF DOCUMENTS

JUDICIALLY NOTICED AND INCORPORATED

IN THE COMPLAINT BY REFERENCE.

While it is true that in considering a motion to dis-

miss under Federal Rule of Civil Procedure 12(b)(6), the

court assumes the existence of well-pled facts, it is

equally true that mere conclusions of the pleader are not

accepted as true. Fernandez-Montes v. Allied Pilots Ass‘n,

987 F.2d 278, 284 (5th Cir. 1993); Washington Legal Founda-

tion v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st

Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.

1991). Moreover, the court is not required to accept as

true assertions which are contrary to matters of which the

court may take judicial notice. Watterson v. Page, 987 F.2d

1, 3-4 (1st Cir. 1993); Kramer v. Time-Warner, Inc., 937 F.2d

767, 773 (2d Cir. 1991); Mack v. South Bay Beer Distrib., Inc.,

798 F.2d 1279, 1282 (9th Cir. 1986). The Court may look to

material found in documents incorporated by reference in

the complaint or which form the basis of the complaint.

Pension Benefit Guaranty Corp. v. White Consolidated Indus.,

Inc., 998 F.2d 1192, 1196 (3rd Cir. 1993); Venture Associates

Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th

Cir. 1993); Fudge v. Penthouse Int'l. Ltd., 840 F.2d 1012,

1014-1015 (1st Cir. 1988). See also Webster v. New Lenox

School Dist. No. 122, 917 F.2d 1004, 1006 (7th Cir. 1990).

18

In this case, the District Court had not only the

Complaint and the documents incorporated therein by

reference, but also the State Curriculum Framework for

the Teaching of Science which set forth the requirements

for biology instruction relating to evolution. As a result,

there was no factual question as to what the District

required Peloza to teach, or whether the instruction he

was required to give involved atheism or inhibition of

religion, as asserted in the Petition at page 20, note 9. As

set forth in the written directives, Peloza had been

directed to teach the subject of evolution in compliance

with the California Department of Education Science

Framework. Many of the concepts relating to the theory

of evolution contained in that Framework are also set

forth in the incorporated directives. (Appendix B at

15b-20b.)

This information provided the factual basis for the

trial court’s description of the theory of evolution, which

the appellate court accepted. (Appendix to Petition at 12a

and 45a-46.) What Peloza and all public school teachers in

California were required to teach is nothing more nor less

than what this Court has on several occasions recognized

as a valid scientific theory which may be taught in public

schools without violating the Establishment Clause. See

Epperson v. Arkansas, 393 U.S. 97 (1968), and Edwards v.

Aguillar, 482 U.S. 578 (1987). Moreover, the requirement

that Peloza not teach creationism as a counterbalance to

evolution is also appropriate constitutionally as recog-

nized by this Court in Edwards.

In light of the fact that what Peloza was required to

teach was not in violation of the Establishment Clause,

there is no constitutional basis for asserting that he can

19

substitute his own materials for the established curricu-

lum. See Epperson v. Arkansas, 393 U.S. at 107. Finally, the

requirement that Peloza not engage in religious discussion

with students while on paid time is also a subject which

can be decided as a matter of law. Consequently, the Ninth

Circuit did not err in granting a judgment affirming the

District Court’s dismissal of Peloza’s Section 1983 and

Section 1985 claims.

CONCLUSION

The issues raised by the facts and circumstances of

this case have been clearly resolved by prior decisions of

this Court. There simply is no basis in law for asserting

that a paid public school teacher can use his position and

paid time to proselytize students, whether in or out of

class. Nothing in this Court’s prior decisions, nor in any

case pending before this Court, suggests that there is now

or ever will be a legal basis for such an assertion. The

Petition for Writ of Certiorari should therefore be denied.

Respectfully submitted,

Davip C. LarsEN*

JEFFREY WERTHEIMER

Rutan & TUCKER

611 Anton Blvd., Suite 1400

Costa Mesa, California 92626

(714) 641-5160

GERALDINE JAFFE

ORANGE County DEPARTMENT OF

EDUCATION SCHOOLS LEGAL SERVICE

200 Kalmus Drive

Costa Mesa, California 92626

(714) 966-4214

* Counsel of Record

la

APPENDIX A

CALIFORNIA EDUCATION CODE

§ 44807. Duty concerning conduct of pupils

Every teacher in the public schools shall hold pupils

to a strict account for their conduct on the way to and

from school, on the playgrounds, or during recess. A

teacher, vice principal, principal, or any other certificated

employee of a school district, shall not be subject to

criminal prosecution or criminal penalties for the exercise

during the performance of his duties, of the same degree

of physical control over a pupil that a parent would be

legally privileged to exercise but which in no event shall

exceed the amount of physical control reasonably neces-

sary to maintain order, protect property, or protect the

health and safety of pupils, or to maintain proper and

appropriate conditions conducive to learning. The provi-

sions of this section are in addition to and do not super-

sede the provisions of Section 49000.

CALIFORNIA CODE OF REGULATIONS, TITLE 5

§ 5552. Playground Supervision.

Where playground supervision is not otherwise pro-

vided, the principal of each school shall provide for the

supervision by certificated employees of the conduct and

safety, and for the direction of the play, of the pupils of

the school who are on the school grounds during recess

and other intermissions and before and after school.

2a

CALIFORNIA CODE OF REGULATIONS, TITLE 5

§ 5570. When School Shall Be Open and Teachers Present.

Unless otherwise provided by rule of the governing

board of the school district, teachers are required to be

present at their respective rooms, and to open them for

admission of the pupils, not less than 30 minutes before

the time prescribed for commencing school.

All teachers shall observe punctually the hours fixed

by regulation of the governing board of the school district

for opening and closing school.

1b

APPENDIX B

RUTAN & TUCKER

DAVID C. LARSEN

JEFFREY WERTHEIMER

611 Anton Boulevard

Suite 1400

Costa Mesa, California 92628-1950

Telephone: (714) 641-5100

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

JOHN E. PELOZA,

Plaintiff,

V.

CAPISTRANO UNIFIED SCHOOL ?

DISTRICT, BOARD OF TRUSTEES ?

OF THE CAPISTRANO UNIFIED ?

SCHOOL DISTRICT, PAUL B.

HASEMAN, CRYSTAL

KOCHENDORFER, MARLENE M.

DRAPER, ANNETTE B. GUDE,

KATHRYN I. ITZEL, E.G. KOPP,

A. EDWARD WESTBERG, JEROME

R. THORNSLEY, WILLIAM D.

ELLER, GERALDINE JAFFE,

THOMAS R. ANTHONY, ROSS

VELDERRAINE, JAMES

CORBETT, PAUL PFLUEGER,

RAY PANICI, TIM DUNN,

WILLIAM REDDING AND DOES

1 THROUGH 200, INCLUSIVE,

mee eee eee”

CASE NO.

CV 91-5268

DWW(Bx)

DECLARATION

OF THOMAS

ANTHONY

[F.R.C.P. 12(b)6,

Fed. R. Ev. 201]

DATE:

December 16, 1991

TIME: 9:00 a.m.

COURTROOM:

Honorable

David W. Williams

2b

DECLARATION OF THOMAS ANTHONY

I THOMAS ANTHONY declare as follows:

1. I am currently the Director of Secondary Schools

for the Capistrano Unified School District and a defen-

dant in the above-entitled action. From July, 1986 to July,

1991 I was the principal of Capistrano Valley High

School, the school where Plaintiff John Peloza has been

teaching biology class during all times relevant to this

litigation.

2. While I was principal of Capistrano Valley High

School, it was my responsibility to ensure that all state

and district curriculum guidelines, frameworks and poli-

cies were adhered to in all classes taught at Capistrano

Valley High School. Whenever a curriculum was not

being followed by an individual teacher, it was my

responsibility to investigate the matter and, when neces-

sary, take appropriate steps to make sure that the

assigned curriculum would be followed.

3. With respect to Plaintiff, it came to my attention

that there were complaints being lodged with my office

indicating that he was not following the assigned curricu-

lum regarding the teaching of evolution in his biology

class. I investigated the matter and, as a result of that

investigation, on February 7, 1991 I personally issued

Plaintiff a Written Reprimand. This Reprimand is the

same February 7, 1991 Reprimand that Plaintiff alleges I

issued to him in Paragraph 26 of his Complaint.

4. In Paragraph 26 of his Complaint, Plaintiff incor-

porates the February 7, 1991 Reprimand into his Com-

plaint as part of his allegations. A true and correct copy

3b

of that Reprimand given from me to Plaintiff is attached

hereto as Exhibit A to my Declaration.

5. Paragraph 26 also incorporates by reference into

the Complaint an October 11, 1990 letter from then Vice

Principal Ross Velderraine to Plaintiff. I assisted in the

drafting of that letter and personally reviewed it prior to

it being delivered to Plaintiff. Additionally, I have

reviewed Plaintiff’s personnel file in order to make sure

that the October 11, 1990 letter incorporated by reference

in Plaintiff’s Complaint is the only October 11, 1990 letter

from Ross Velderraine. After reviewing the letter and

Plaintiff’s personnel file, I can state that a true and cor-

rect copy of the October 11, 1990 letter from Ross Velder-

raine to Plaintiff and incorporated by reference in

Paragraph 26 of Plaintiff's Complaint is attached to my

Declaration as Exhibit B.

I declare under penalty of perjury under the laws of

the State of California and the United States of America

that the foregoing is true and correct.

Executed this Illegible day of November, 1991, at

Illegible, California.

/s/ Thomas Anthony

Thomas Anthony

7/237 /061458-0016/004

4b

Exhibit A

CAPISTRANO UNIFIED SCHOOL DISTRICT

CAPISTRANO VALLEY HIGH SCHOOL

Mission Viejo, California

February 7, 1991 \

TO: John Peloza, Teacher, Capistrano Valley High

School

FROM: Tom Anthony, Principal, Capistrano Valley

High School

SUBJECT: REPRIMAND

This letter constitutes a formal written reprimand for

your repeated refusal to follow course outlines and cur-

riculum guides regarding the teaching of evolution as a

valid scientific theory to your high school Biology classes.

This letter also constitutes a formal written reprimand for

your inappropriate discussion of religion with students in

an attempt to convert them to Christianity.

On June 9, 1990, a meeting was held between Bill Red-

ding, Curriculum Specialist for Science, you and Mr.

Velderrain, Vice Principal. During that meeting you were

advised that you must always follow course outlines and

curriculum guides provided by the District and that you

must not teach creationism in the classroom as it does not

comply with the State Framework on Science. You were

advised that you are not to teach religion in the classroom

in the context of the subject matter of evolution.

In a letter dated October 11, 1990, from Ross Velderrain,

you were given clear directions as to what the Capistrano

5b

Unified School District expects you to teach in the subject

of evolution in compliance with the California State

Department of Education Science Framework, and to

inform you not to teach creationism in the classroom. A

copy of Mr. Velderrain’s October 11, 1990, letter is

attached to this reprimand. These issues have been raised

with you during the past two years pursuant to com-

plaints from parents, students and other staff members.

Mr. Velderrain’s letter of October 11, 1990, clearly

informed you that your presentation of the theory of

evolution violated both the letter and the spirit of the

state curriculum guidelines whose intent is to have evolu-

tion taught as one of the main themes of science and that

creationism not be taught in the classroom. Further, he

told you he would be available to assist you in meeting

the objective of developing lesson plans that presented

evolution as a valid scientific theory.

As a follow-up to the October 11, 1990, letter, several

meetings were held between you, Dr. Harold Hester,

Director of Secondary Education for the District, Bill Red-

ding, and Mr. Velderrain regarding your lesson plans on

the unit of evolution for the 1990-91 school year. After

several meetings, it was agreed that Dr. Hester and Mr.

Velderrain would separately observe you as well as other

biology teachers at the high school teaching evolution to

their classes. During these classroom observations by Dr.

Hester and Mr. Velderrain you began your unit on evolu-

tion by passing out an outline entitled “Evidence in Sup-

port of the Refutation to Evolution”: similar to the outline

you had passed out in the 1989-90 school year.

Although when you were formally observed by adminis-

trators you did not make any religious comments or

6b

directly attach [sic] evolution as an invalid scientific the-

ory, several students who are in different periods of your

high school Biology classes stated that since the begin-

ning of the 1990-91 school year you have made many

comments regarding your views on creationism. Follow-

ing is a summary and some specific instances where

inappropriate curriculum was taught or inappropriate

comments to students were made.

Several students heard you state at the beginning of the

1990-91 school year that you had a movie on prehistoric

man that you wanted to show to the students but that the

school board would not let you do it because they would

disapprove. You stated that you were a creationist and

that you were free to say it. At the beginning of the

1990-91 school year, you stated to your second period

Biology class, “I know it’s not legal to teach religion in

class, but I don’t care if I get fired for my beliefs.” You

stated that you have been with the District ten years and

have not been fired yet.

During the first semester of the 1990-91 school year, you

stated that the Bible was the historical way and that it

cannot be proven wrong. On more than one occasion

since the beginning of the 1990-91 school year, you have

stated to your students that the school board won't let

you teach what you want to on creation. In September of

1990 you stated that you were “a creationist” and that

“we will go into evolution but I am a creationist.”

Several of your students remarked that your method of

teaching them the unit on evolution was to instruct them

to outline the chapters in the science textbook on their

own, and that the next day in class you would show the

a

7b

students how the information they had outlined the pre-

vious day on evolution was wrong. Often when you were

asked a question by a student on an issue such as prehis-

toric fossils, your reply was that what the text said was

all wrong, there was no proof, and you would state what

creationism said about the issue. When you taught units

other than evolution you followed the textbook. Accord-

ing to several of your students you spent approximately a

week and a half teaching the class about how evolution

was wrong, disproving it and almost never used the

textbook. You “taught” them the theory of evolution by

telling the students to read the chapters in the book, but

never teaching it yourself.

Sometime in October, 1990, during your second period

Biology class in response to a remark by you that anyone

who did not believe in Jesus Christ would go to hell,

[deleted]* told you that she did not believe in Jesus Christ

and that she knew she was not going to hell. You told her

to come in at lunchtime and talk to you about this in your

office. [deleted] came into your classroom during lunch-

time with another student, [deleted].

During your lunchtime conversation with [deleted], you

began by taking out a Bible from your brief case.

[deleted] asked you how you could state that God exists

and you quoted various portions of the Bible to prove

that God did exist. [deleted] remarked that the Bible can

be interpreted in many different ways depending on who

is reading it. You replied that “My way is the right way

*The names of the students have been deleted to protect their

identity.

8b

because I believe in Jesus Christ” and then stated, “if you

do not believe in Jesus, you will go to hell.”

[deleted] replied that Jews do not believe in hell and Jews

do not believe that Jesus is the Messiah. You replied

“What I believe is in Jesus and you should believe it too.”

[deleted] asked if you were here to convert her and you

stated no, you were here to get people to be aware of

religion and that everybody should believe in being a

Christian just like you did. You stated, “If you believe in

Jesus and you sign and you ask Jesus to forgive you, he

will because he forgives and forgets.” You further stated

that there is so much sin on Earth because the devil has

come out and taken over the world and that at this time

Jesus is holding the world together in his hands.

On December 18, 1990, [deleted] and [deleted], parents of

[deleted], lodged a formal written complaint protesting

your preaching religion to your students, stating that you

said those students who did not accept Jesus Christ

would definitely “go to hell.” The [deleted] further prot-

ested what they stated to be your absolute rejection of the

theory of evolution, your characterization of it as

undocumented fact and objected to your teaching to your

science classes that the theories of the Bible regarding

creationism were the only truth about evolution.

On December 9, 1990, [deleted] the father of [deleted]

also lodged a formal written complaint against you. The

substance of Mr. [deleted] complaint was that during

your sixth period Biology class you proceeded to discuss

the merits of fundamentalist Christianity, stating that if

one did not believe in divine creation and the divinity of

Jesus Christ one was doomed to go to hell for all of

ae,

9b

eternity. According to Mr. [deleted], you described what

would happen to someone who did not believe in Jesus

Christ in graphic detail.

Mr. [deleted] centers around an incident that took place

on November 27, 1990, during seventh period between

you, his daughter [deleted] and another student

[deleted]. On November 27, 1990, these two students

stayed after class because they were trying to prove that

you were wrong about evolution, the Lucy skeleton and

transitional forms. During this discussion you stated that

none of these things were true and that “there has to be a

creator.” According to [deleted] you then “preached that

Jesus is the only way.” You explained hell to [deleted] as

follows; “You are constantly burning, your teeth are get-

ting knocked out, you are always suffering, there are

demons around you for all eternity, and you can never

leave.” You also stated that, “if you do not believe in

Jesus Christ you will burn in hell forever.” You told these

girls that there are lots of ways to get to hell but there is

only one way to get to heaven and that is to believe in

Jesus Christ as God. [deleted] told you that she believed

in God and you remarked that “Jesus is God so you don’t

believe in God if you do not believe in Jesus.”

{deleted] asked you what happened if you were a good

person and you responded, “It doesn’t matter if you

don’t believe in Jesus.” You further stated that “God was

not fair but if God were fair everyone would be in hell

because all of humanity are such sinners.” [deleted] then

told you she was really worried about her family going to

hell especially her seven-year-old brother. You told her

that it was a shame her parents were so stubborn in not

letting her believe the right way, i.e., that Jesus was God.

10b

[deleted] told you she was thinking about converting

because she did not want to go to hell.

You then told [deleted] she was already a Christian

because once you have converted you become a Christian

and you cannot take it back. You told her that God,

meaning Jesus, would never kick [deleted] out of heaven.

After that, you remarked, “Let’s pray together.” The three

of you closed your eyes and put your heads down. You

instructed [deleted] to accept Jesus into her heart and to

repeat the following words: “I [deleted], will want Jesus

to love me, accept me and take me into his heart.” You

then stated, “This is final, that’s it ‘you’re a Christian’

you cannot take it back.” You asked [deleted] if she

would like a Bible and then joked “I'll get you a pocket

Bible so your parents won't know.”

[deleted] was very distraught after this conversion and

on November 28, 1990, told her mother about the conver-

sion and how badly she felt because no one else in her

family would be going to heaven with her. [deleted]

called her Rabbi and went to his house with her father.

On December 11, 1990, at your instigation, you switched

sixth period Biology classes with Mr. Ray Panici for that

one day only. According to several of your students the

purpose of your switching classes with Mr. Panici was

because you stated that you were biased towards cre-

ationism and you wanted to be fair; therefore, you

thought that the two classes should switch teachers so

they could hear Mr. Panici’s view since he was an evolu-

tionist.

On December 12, 1990, your sixth period Biology class

was having a discussion on what Mr. Panici had taught

CRE nnee reece ee Ce ee oe

11b

them. You got into a discussion on satanism and several

members of the class remarked that you could not prove

the satanism was wrong. Several students kept insisting

that it was not fair for you to state that evolution and

satanism were wrong because you could not disprove

these things. At that point you started to discuss the

Bible.

You quoted from the Book of Genesis, discussing Adam

and Eve, discussing other portions of the Bible and in

essence “preaching” to your class. You also discussed

Lucifer stating that there were three angels besides God

and Lucifer was kicked out of heaven and sent down to

hell. You stated that the devil made Eve take the apple

from the tree and that is how the devil got dominion over

the Earth. You then stated that now the devil rules over

the Earth and that is why the world is evil and why we

have sin. Although you began this discussion with the

Book of Genesis you kept quoting numerous Biblical pas-

sages from memory. You talked a long time about Jesus

Christ, preached about Jesus, and stated there was no

other way to believe and that you “know the one way is

right.” You also discussed extensively good versus evil

and Jesus or Christians versus everyone else. This discus-

sion took place for approximately 15 to 20 minutes during

your sixth period Biology class on December 12, 1990.

During the first semester of the 1990-91 school year, in

your second period Biology class, you got entirely off the

subject matter and made the following statements to the

entire class. You told the class that you saw Jesus Christ

save your brother and that you had also seen Jesus save

you sister. Whenever you discussed the subject of evolu-

tion you said you didn’t believe in it and that the Bible

12b

was the one true written document. Sometime in October

1990 you were discussing evolution in your second

period Biology class when the class got on the subject of

religion and you stated, “if you do not believe in Jesus

Christ, you will go to hell.”

Faculty members have also taken exception to contradic-

tory statements and apparent misinformation conveyed

by you regarding the subject matter of evolution. Another

high school Science teacher was teaching atomic theory to

his classes and quoted a statement from Dr. David Good-

stein of Cal Tech as follows:

“There are theories in science which are so well

verified by experience that they become pro-

moted to the status of fact. One example is the

special theory of relativity, it’s still called theory

for historical reasons, but it is in reality a simple

engineering fact routinely used in the design of

giant machines like nuclear particle accelerators

which always work perfectly. Another example

of that sort of thing is the theory of evolution.

These are called theories but they are in reality

among the best of established facts in all of

human knowledge. Our job today is to look into

those facts and theories and models which

underlie our understanding of the ultimate con-

stituents of matter.”

Immediately after the teacher read this statement by Dr.

Goodstein, several students took exception to these

remarks stating that they were not true and that this

individual should talk to Mr. Peloza who would set him

straight on evolution.

A Social Science teacher was discussing social Darwinism

in her World History class when several of her students

EE

13b

reacted very negatively to the term Darwinism stating

that it had no scientific basis, was not provable, and was

against the Bible. They cited you as the source of their

information. According to one student you had told them

that “Darwinism is the same as Communism.” This

teacher was distressed by the idea that students were

being taught theology along with Biology so that the

result was that some students were not even open to

discuss how the concept of Darwinism impacted history.

The District has the responsibility to monitor the content

of its teachers’ lesson plans to ensure that the establish-

ment clause of the First Amendment is not violated. A

teacher’s freedom to exercise and express their religious

preference is limited by their students’ rights to be free

from religious indoctrination or influence in the class-

room. The District’s Board Policy on the Instruction of

Controversial Issues, number 6136, Section IV (B) 13,

explicitly states that teachers have the responsibility to

“refrain from attempting to indoctrinate students with

his/her point of view.” When a teacher in a public school

uses religion and teaches religious beliefs in a science

class, or espouses theories which are clearly based on

religious underpinnings, the principles of the separation

of church and state are clearly violated.

You are hereby directed to refrain from any discussion of

religion in any of your science classes and to refrain from

attempting to influence your students to accept your own

personal religious or philosophical beliefs. You are

directed to follow the course outlines in the subject area

of high school Biology and more specifically in the teach-

ing of evolution.

ee

14b

You are further directed to refrain from making any com-

ments about Jesus Christ, about the fact that people who

do not believe in Jesus Christ burn in hell, and to refrain

from discussing religion or quoting from the Bible during

any of your classes. If a student does ask you a question

about religion, you are directed to refer them to their

parents or to their own clergy person for guidance.

You are further directed to teach evolution as a valid

scientific theory and to refrain from any teaching of cre-

ationism as a valid scientific theory. This direction to

teach evolution as a valid scientific theory is a part of the

accepted and adopted school curriculum in high school

Biology and your refusal to teach evolution can be con-

strued to constitute persistent failure to obey local and

state rules and regulations regarding classroom instruc-

tion, evident unfitness for service and unprofessional

conduct. You are explicitly directed to refrain from teach-

ing creationism in addition to, rather than, or in refuta-

tion to, evolution. Please be advised that should you fail

to comply with these written directives or should there

by [sic] any additional incidents of this kind, further

disciplinary action will be considered.

A copy of this written reprimand will be placed in your

personnel file ten (10) days from today. If you wish to

respond in writing to this reprimand, please do so within

ten (10) calendar days by sending your response to Dr.

Harold Hester, Director, Secondary Education. Any

response will be attached to this reprimand and included

in your personnel file.

cc: Personnel File

Pak «iw ttl BAB 56

eC Ps MT ST SP PI ES) Go) MNT eo CES ..4"- — —

15b

Exhibit B

CAPISTRANO VALLEY

HIGH SCHOOL (LOGO)

26301 VIA ESCOLAR MISSION VIEJO, CA 92692

(714) 364-6100

October 11, 1990

To: John Peloza, Biology Teacher

From: Ross Velderrain, Vice Principal

Subject!) TEACHING EVOLUTION IN HIGH SCHOOL

BIOLOGY CLASSES

I am writing you at the beginning of the school year

regarding this subject for several reasons:

1. To provide you with clear direction regarding what

the district expects you to teach in the subject of

evolution in compliance with the California Depart-

ment of Education’s science framework,

2. To inform you of the State Board of Education’s Janu-

ary 13, 1989, policy statement on the teaching of

natural sciences, and

3. To reinforce the district’s concerns regarding your

following course outlines and curriculum guides and

not teaching creationism in the classroom.

On June 9, 1989, a meeting was held between Bill Red-

ding, Curriculum Specialist for Science at the Capistrano

Valley High School, Thomas Anthony, Principal of the

high school, and you and I. During this meeting you were

advised that you must always follow course outlines and

curriculum guides provided by the district, and that you

must not teach creationism in the classroom as it does not

16b

comply with the State framework on science. You were

advised that you are not to teach religion in the classroom

in the context of the subject matter of evolution.

Please be assured that the district is well aware that you

have very strong religious beliefs regarding the biblical

theory of creationism and that you personally feel it to be

a valid scientific theory. While the federal and state con-

stitutions protect an individual’s freedom of religious

beliefs, when you teach biology, you are expected to

follow the State framework and implement appropriate

curriculum in the area of evolution.

On January 13, 1989, the State Board of Education

adopted a policy statement on. the teaching of natural

sciences; this statement supersedes the Board’s 1972 Anti-

dogmatism Policy which was printed as part of the 1984

science framework addendum. The statement specifically

addresses the issue of evolution and creationism and

reads in pertinent part as follows:

e “Discussions of any scientific fact,

hypothesis, or theory related to the origins of

the universe, the earth, and of life (the how) are

appropriate to the science curriculum.

e Discussions of Divine creation, ultimate

purposes, or ultimate causes (the why) are

appropriate to the history-social science and

English-language arts curricula.

e Philosophical and religious beliefs are

based, at least in part, on faith and are not

subject to scientific tests and refutation. Such

beliefs should be discussed in the social science

17b

and language arts curricula. The Board’s posi-

tion has been stated in the Board’s adopted pol-

icy, Moral and Civic Education and Teaching

about Religion (1988), and in the History-Social

Science framework (1988).

e Neither the California nor the United

States Constitution requires, in order to accom-

modate the religious views of those who object

to certain material or activities that are pre-

sented in science classes, that time be given in

the curriculum to those particular religious

views. It may be unconstitutional to grant time

for that reason.”

The 1990 “Science Framework for California Public

Schools, Kindergarten Through Grade 12” adopted by the

California State Board of Education, was developed by

the Science Curriculum Framework and Criteria Commit-

tee. All references are to the 1990 addition of this frame-

work published by the California Department of

Education. The science framework discusses the nature of

science in Chapter 1 and the subject of evolution as

follows:

e “Evolution is the central organizing the-

ory of biology and has fundamental importance

in other sciences as well. It is an accepted scien-

tific explanation and therefore no more contro-

versial in scientific circles than the theories of

gravitation and electron flow.”

e The theory of evolution, like other theo-

ries, is more than the sum of the facts from

which it is derived. It is the best explanation for

the facts, and it has predictive value. However

evolution has worked - its patterns, processes,

mechanisms, and history — composes the theory

18b

of evolution, which is constantly being modified

as new evidence emerges.

e Teachers should be aware that the theory

of evolution has been tested and refined for over

a 100 years and that the majority of criticisms

that find their way into popularly circulated

publications have not been validated scien-

tifically; usually, the criticisms have been evalu-

ated and rejected by the scientific community.

Teachers should consider the validity of such

criticisms carefully before accepting them or

deciding whether they are worth “creation sci-

ence” (or “scientific creationism”) has been thor-

oughly studied by the leading scientific societies

and rejected as not qualifying as a scientific

explanation.

e Some students may be concerned about

evolution and its bearing «n their religious

beliefs. Teachers — and textbooks — should make

it very clear that from a scientific prospective,

evolution, like other scientific topics, does not

bear on an individual’s religious beliefs. Science

is not theistic, nor it is atheistic; it does not

presuppose with the mechanics, processes, pat-

terns, and history of nature; it is neutral with

respect to divinity, the supernatural, or ultimate

causes. .. . The way in which scientific under-

standing is related to religion is a matter for

each individual to resolve; thus, the State

Board's policy is that there should be a clear

separation between science and religion.”

In the 1990 science framework, the State Board of Educa-

tion sets forth six major themes that comprise the big

ideas, overarching concepts, unifying constructs or

underlying assumptions of the science framework, and

———

19b

which are distinct from facts or concepts. These major

themes of science are: 1. Energy, 2. Evolution, 3. Patterns

of Change, 4. Scale and Structure, 5. Stability, and 6.

Systems and Interactions. In discussing evolution in the

context of the major themes of science, the State’s curricu-

lum reads as follows:

¢ “Evolution in a general sense can be

described as change through time, and virtually

all natural entities and systems change through

time. Evolution embodies history and therefore

is a part of every discipline in which history has

a role. In order to teach life science, earth sci-

ence, Or astronomy, evolution should be a fun-

damental, central concept of the curriculum.

Evolution, which Darwin described as ‘descent

with modification’ is the central organizing

principle in life science.”

The concurrent teaching of both evolution and creation

science violates a science teacher’s professional respon-

sibility to teach science since both the scientific commu-

nity and the courts have found that “creationism” is not

science, rather it meets the definition of a “religion” or

“religious belief.” Because teachers, among other things,

provide role models for their students, it is imperative

that a science teacher be a role model for the scientific

community and the scientific processes of careful obser-

vation, formulation of a hypothesis, and the experimenta-

tion and coliection of data leading to a conclusion which

either supports or rejects the hypothesis. The scientific

community as a whole, and its professional organizations

such as the American Association for the Advancement of

Science (AAAS), the National Academy of Sciences

(NAS), the National Science Teachers Association (NSTA)

20b

and the American Biology Teachers Association (ABTA),

have all found that evolution and its theories have with-

stood the test of time and that creationism fails to meet

scientific criteria as a valid scientific theory.

During the past two school years, concerns have been

raised and brought to my attention that you were either

openly teaching creationism in your science classes or

attacking evolution as an invalid scientific theory based

on your belief in creationism. These concerns were

brought to my attention by students, parents and other

staff members. A review of your 1989-90 lesson plans in

the area of evolution buttresses these concerns since your

lesson plans are entitled “Evidence in Support and

Refutation to Evolution” and you have a separate subsec-

tion entitled “Evidence in Refutation to Evolution.” My

review of your last year’s lesson plans in the area of

evolution indicates that the clear thrust of these lesson

plans is to promote creationism and classify the theory of

evolution as a speculative hypothesis and to refute the

accepted theory of evolution point by point. Your presen-

tation of the theory of evolution clearly violates both the

letter and the spirit of the State curriculum guidelines

whose intent is to have evolution taught as one of the

main themes of science and that creationism not be

taught in the classroom.

Before your Stull Bill goals and objectives are finalized

for this year, | am requesting that you provide me with

lesson plans that demonstrate how you will meet the

objective of teaching evolution in the classroom in com-

pliance with the State science framework and curriculum.

Bill Redding, who has had many discussions with you

regarding the teaching of evolution and, conversely, that

21b

creationism should not be taught in science classes, is

available to work with you to assist you in developing

lesson plans that present evolution as a valid scientific

theory. I am requesting that you have these lesson plans

submitted to me by October 16, 1990. I am also available

to assist you in meeting this objective.

/s/ Ross Velderrain

Ross Velderrain

Vice Principal

/pa

cc: Harold Hester

Thomas Anthony