In Sabra v. Maricopa County Community College District, published August 10, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit. The defendant professor at the defendant community college district taught a course on world politics. One module of that course was on Islamic terrorism. The plaintiff student took the course. The student alleged that the course included material that denigrated Islam and was misleading. The plaintiff was a Muslim. The course included a multiple-choice quiz that allegedly required the student to choose answers that attacked the student's faith or else be graded downward. An organization that advocates on behalf of American Muslims joined the student as a plaintiff. The plaintiffs alleged that the Islamic Terrorism module violated the Establishment Clause of the 1st Amendment because its primary message is the disapproval of Islam, allegedly presenting a biased and one-sided portrayal of Islam as though it were presenting fact. The lawsuit also alleged that the quiz violated the student's rights under the Free Exercise Clause of the 1st Amendment by allegedly requiring the student to disavow his religion by selecting the correct answer choice or be penalized by answering in accordance with his beliefs. The lawsuit named the professor in his personal and official capacities and named the district under a theory of municipal liability. The district court concluded that the organizational plaintiff lacked standing under a theory of organizational injury. The court further determined that the complaint did not state violations of the student's 1st Amendment rights, and that the professor was entitled to qualified immunity.
The appellate court ruled that the organizational client had established standing, by alleging that the district's and professors' acts required it to divert its resources to create a campaign correcting the allegedly Islamophobic information in the course materials. The panel majority concluded that the plaintiffs had abandoned their municipal liability claim on appeal, because the district raised the municipal liability argument in its answering brief and the plaintiffs failed to respond to it in their appellate reply brief. Further, on the merits, the majority rejected the argument that because the professor taught the course for 24 years, the district had a longstanding practice and custom of teaching that disapproved Islam. The complaint failed to allege facts that the challenged material was taught for a long period. The allegation that the professor was a policymaker for the district because he was the chair of a department failed; under law, the district's board was the policymaking body. The complaint failed to plausibly allege a ratification theory of liability, because it did not plausibly allege that a policymaker had actual or constructive knowledge of the offending material and sanctioned its use in the classroom. Because the plaintiffs abandoned the municipal liability claim on appeal, they were not entitled to a remand to allow them to amend their complaint. Addressing the claims against the professor, the panel majority agreed with the district court that the professor was entitled to qualified immunity. No case law established beyond debate that teaching material that allegedly denigrated a religion, or administering a quiz that required a student to make choices contrary to the student's beliefs, violated the Establishment or Free Exercise clauses. Given that there were powerful arguments on both sides, the violations were not so "obvious" as to be clearly established without precedent. The panel did not address the merits of the alleged violations.
A judge dissented, opining that the alleged conduct in giving the quiz violated the student's clearly-established Free Exercise rights. The judge also disagreed with the appellate abandonment holding. Another judge concurred with the majority, writing separately to respond to the dissenting judge's opinion regarding qualified immunity. The concurring judge also opined that while 9th Circuit precedent compelled the decision on organizational standing, the 9th Circuit precedent was incorrect.
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