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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Sunday, April 18, 2010

Capistrano case - qualified immunity

Here is the opinion of Judge Selna, back in September 2009, which ruled that Dr James Corbett had qualified immunity in respect of the one statement he made that was previously held to be a constitutional breach. As a result, he ultimately won the case, in the sense that he was held not to be liable for any remedy or for the costs of the student concerned.

This was the case in which a student took his history teacher to court over various remarks that were supposedly disparaging of religion.

Note that qualified immunity may or may not apply in any future such situations. It is important that an element of the finding is that the law was unclear in 2007 when Corbett made the remark. Still, the judgment is worth reading in the light of recent discussion in the blogosphere of the rights of teachers in US state schools who may be at risk of litigation for saying something that is held to be disparaging of religion. It shows the court taking a reasonable approach, and that teachers will not lightly be subjected to some kind of legal liability for a statement that was not deliberately intended to disparage religion. Law suits brought by plaintiffs seeking to harass teachers will be brought at a high risk of gaining no remedy and accruing substantial costs.

These paragraphs from the concluding comments are useful:

Public officials have no choice about interacting with the public; that is their job. Unlike interactions in the private sector, every interaction brings into play potential Constitutional rights and the possibility of infringement of those rights. Perhaps this is most clearly seen in the context of law enforcement where advisements of Constitutional rights, search and seizure issues, and the use of lawful force are a part of a police officer’s daily responsibilities. But the same is true of a teacher presenting a challenging subject such as Advanced Placement European History which cannot be fairly treated without discussing religion, just as Corbett was doing during the fall of 2007.

Public officials must be able to do their jobs without fear that every misstep, however slight, will subject them to liability and the paralysis which goes with such a fear. Thus, the doctrine of qualified immunity looks to whether there was a clearly established right in issue. Here, the Court has found that there was not, and thus Corbett is shielded from liability–not because he did not violate the Constitution, but because of the balance which must be struck to allow public officials to perform their duties. The law as it existed in the fall of 2007 did not make clear that a single statement in an area of the law which lacks precision could violate the Constitution. The decision here on the merits advances the clarity of Farnan’s right to be free of anti-religious comments, but the extent of the advance and the results of future applications of the doctrine of qualified immunity in this area are for another day and another court.

It does seem on the current state of the law that only statements that are deemed by a court to be gratuitous will, all by themselves, attract potential liability. Notice that the comment that caused the most trouble for Dr Corbett was made to students in class about another teacher (a Creationist); it was not part of the structured content of a history lesson: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." Accordingly, the judge says:

The Peloza statement had no relationship to Corbett’s AP class; it was a gratuitous divergence which cannot be saved by the fact that it was made during the AP class. That statement was the proper focus of the Court’s analysis.

A comment with a proper pedagogical purpose within the course of a lesson, or a mere word or two in a paragraph (or even the whole paragraph) of a textbook will not be looked at in isolation. The overall intent and effect of the lesson or book, or whatever it may be, will be considered (though the courts will surely not apply this idea in a way that allows premeditated contrivances).

A teacher who actually sets out to disparage religion, or a religion or doctrine - or a fellow teacher's religious beliefs! - as part of lesson may be asking for trouble. But given the resolution of this case to date there's no need for teachers who are acting in good faith to panic. Indeed, the opinion cites some very comforting authority from a Ninth Circuit case:

The Ninth Circuit has recently explained that "because whether a public employee’s speech is constitutionally protected turns on a context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely, if ever, be sufficiently ‘clearly established’ to preclude qualified immunity." Dible v. City of Chandler, 515 F.3d 918, 930 (9th Cir. 2008). The present case is not one of those rarities.

The whole case is now on appeal, and perhaps some more clarity will emerge when the appeal court decides it more authoritatively. Then we can have better informed discussions about how much American teachers really need to watch their backs when the subject matter relates in some way to religion.


Jerry Coyne said...

Nice post (except for the troll whose comment is directly above).

Russell Blackford said...

Yeah, our pet troll. But remember, everyone, not to feed him.

Russell Blackford said...

Anyway, the moral of this story is that some actual legal research always helps. Hope Michael De Dora is taking notes.

Unknown said...

Farnan’s right to be free of anti-religious comments

No one has such a right. The very notion is a lie. And everyone knows this – but they dare not stand up to the men who make the rules.

A teacher who actually sets out to disparage religion … as part of lesson may be asking for trouble.

Holy mother of god – have we sunk this low? Have the apologists utterly commandeered the terms of discussion? "You're not from around here, are you, boy? Look here, my friends: we got ourselves a trouble-maker." What a sorry, sordid, evil-smelling situation.

Ophelia Benson said...

Ah yes, thanks, Russell, very helpful – I was thinking of this case but couldn’t remember any details apart from AP history class and (I think) New Jersey – which probably would have been enough to find it, but I never got around to it.

Anyway, I agree with yashwata, alas – I don’t find this comforting at all. The fact that one remark in class could become a court case on such ridiculous grounds is chilling. I can easily see a case for the school telling the teacher to knock it off; I can see the school telling Corbett that in a very annoyed voice. But a lawsuit? Er, no. If something as trivial and offhand as that is grounds for suing...we’re doomed!

“Public officials have no choice about interacting with the public; that is their job. Unlike interactions in the private sector, every interaction brings into play potential Constitutional rights and the possibility of infringement of those rights.”

Jeez, you know what? I used to have a job in the public sector. I was hardly what you’d call a public official, but then neither are school teachers. Just imagine if I’d said something rude about creationism while wearing my zoo uniform. Call the cops! Or at least a lawyer.

Mind you, I wouldn’t have. I’m a coward. But I do think I should have a legal right to. And I did overhear plenty of stupid creationist crap there – adults carefully informing children that these fascinating gorillas were of course no relatives of ours.

Dale said...

Thanks for the clarification and citations. It is most helpful.

Daniel Schealler said...

Thanks for that Russel. I had a feeling that there had to be something out there like this.

I had accepted De Dora's interpretation of the constitution and his recommendation as to how it would be applied because I didn't have the legal background in US law to offer a defense... But I didn't like it. I know America is nuts, but... that nuts?

It's very good to know there are mechanisms in place to hold back this kind of insane and frivolous legal action.

Michael De Dora said...

Yes, Russell, taking note (as much as I can). Thanks for the post.