FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C.F., by and through his parents
TERESA FARNAN and BILL FARNAN,
Plaintiff-Appellant,
v.
CAPISTRANO UNIFIED SCHOOL
DISTRICT; DR. JAMES CORBETT, No. 09-56689
individually and in his official
capacity as an employee of D.C. No.
8:07-cv-01434-
Capistrano Unified School District,
Defendants-Appellees, JVS-AN
and
CALIFORNIA TEACHERS
ASSOCIATION/NEA; CAPISTRANO
UNIFIED EDUCATION ASSOCIATION,
Intervenors-Appellees.
11257
11258 C.F. v. CAPISTRANO USD
C.F., by and through his parents
TERESA FARNAN and BILL FARNAN,
Plaintiff-Appellee,
v.
DR. JAMES CORBETT, individually
and in his official capacity as an
employee of Capistrano Unified
No. 09-56690
School District,
Defendant-Appellant, D.C. No.
and 8:07-cv-01434-JVS-
AN
CAPISTRANO UNIFIED SCHOOL
OPINION
DISTRICT,
Defendant,
and
CALIFORNIA TEACHERS
ASSOCIATION/NEA; CAPISTRANO
UNIFIED EDUCATION ASSOCIATION,
Intervenors.
Appeals from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
February 11, 2011—Pasadena, California
Filed August 19, 2011
C.F. v. CAPISTRANO USD 11259
Before: A. Wallace Tashima and Raymond C. Fisher,
Circuit Judges, and Mark L. Wolf, Chief District Judge.*
Opinion by Judge Fisher
*The Honorable Mark L. Wolf, Chief United States District Judge for
the District of Massachusetts, sitting by designation.
11262 C.F. v. CAPISTRANO USD
COUNSEL
Robert H. Tyler and Jennifer L. Monk (argued), Advocates
for Faith and Freedom, Murrieta, California, for the plaintiff-
appellant-cross-appellee.
Erwin Chemerinsky (argued), U.C. Irvine School of Law,
Irvine, California; J. Craig Johnson and Christian A. Hickers-
berger, Tenner Johnson LLP, Riverside, California, for the
defendants-appellees-cross-appellants.
Michael D. Hersh, California Teachers Association, Santa Fe
Springs, California; Laura P. Juran and Emmy Leheny, Cali-
fornia Teachers Association, Burlingame, California, for the
intervenors-appellees.
C.F. v. CAPISTRANO USD 11263
OPINION
FISHER, Circuit Judge:
The First Amendment provides that “Congress shall make
no law respecting the establishment of religion, or prohibiting
the free exercise thereof.” U.S. Const. amend. I. The govern-
ment runs afoul of the Establishment Clause through dispar-
agement as well as endorsement of religion. See Catholic
League for Religious & Civil Rights v. City & Cnty. of S.F.,
624 F.3d 1043, 1060 (9th Cir. 2010) (en banc) (Silverman, J.,
concurring); id. at 1053-54 (Kleinfeld, J., dissenting); see also
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 532 (1993). In this case, a former public high
school student alleges that his history teacher violated his
rights under the Establishment Clause by making comments
during class that were hostile to religion in general, and to
Christianity in particular. Mindful that there has never been
any prior reported case holding that a teacher violated the
Constitution under comparable circumstances, we affirm the
district court’s conclusion that the teacher is entitled to quali-
fied immunity. Because it is readily apparent that the law was
not clearly established at the time of the events in question,
and because we may resolve the appeal on that basis alone,
we decline to pass upon the constitutionality of the teacher’s
challenged statements. See Pearson v. Callahan, 555 U.S.
223, 129 S. Ct. 808, 815-18 (2009).
BACKGROUND1
In fall 2007, Chad Farnan was a 15-year-old sophomore
enrolled in Dr. James Corbett’s Advanced Placement Euro-
pean History (AP Euro) class at Capistrano Valley High
School. Corbett has taught in the Capistrano Unified School
District (District) for more than 20 years, and has taught AP
Euro for more than 16 years. He is presently the only teacher
1
The facts are undisputed unless otherwise noted.
11264 C.F. v. CAPISTRANO USD
who teaches AP Euro at Capistrano Valley High School. Cor-
bett is a Christian who regularly prays and attends church ser-
vices. Farnan is also a Christian, and believes in creationism.
He was offended by comments Corbett made during class that
Farnan characterizes as “derogatory, disparaging, and belit-
tling regarding religion and Christianity in particular.” Neither
Farnan nor his parents ever discussed this concern with Cor-
bett or any other school official. Rather, before completing
the first semester of AP Euro, Farnan withdrew from the class
and filed this lawsuit under 42 U.S.C. § 1983 alleging a viola-
tion of his First Amendment rights under the Establishment
Clause. Farnan has since graduated from high school and
begun college.
AP Euro is a college-level course for which students can
receive college credit if they pass the AP exam administered
by the College Board. The AP Euro standards are equivalent
to a University of California course. The College Board dic-
tates that AP Euro cover a number of topics touching on reli-
gion, including: “[c]hanges in religious thought and
institutions,” “[s]ecularization of learning and culture,”
“[s]cientific and technological developments and their conse-
quences,” and “[c]hanges in elite and popular culture, such as
new attitudes toward religion, the family, work, and ritual.”
The College Board’s course description explains that these
“cultural, economic, political, and social developments . . .
played a fundamental role in shaping the world in which [we]
live,” and accordingly provide “context for understanding the
development of contemporary institutions, the role of continu-
ity and change in present-day society and politics, and the
evolution of current forms of artistic expression and intellec-
tual discourse.”
In summer 2007, Corbett sent home a letter to incoming
students who had signed up for his AP Euro class, including
Farnan. In the letter, Corbett explained how the class would
operate: “Most days we will spend a few minutes (sometimes
more) at the beginning of class discussing current events . . . .
C.F. v. CAPISTRANO USD 11265
Discussion will be quite provocative and focus on the ‘les-
sons’ of history. My goal is to have you go home with some-
thing that will provoke discussion with your parents.” Corbett
assured students that they “may offer any perspective without
concern that anything they say will impact either my attitude
toward them or their grades. I encourage a full range of
views.” Farnan received and read the letter.
Corbett describes his approach as seeking “to teach stu-
dents to be able to identify central questions and construct
logical thesis statements,” to “view a variety of historical
materials, both analytically and critically, to weigh historical
evidence, and to arrive at conclusions based on informed
judgment.” His “pedagogy is intentionally provocative in
order to elicit responses from his students and to help them
develop critical thinking skills.” He encourages students to
“question and try to come up with a[n] analysis of what is true
[and] is not true, from [a] historical perspective.” Corbett told
his AP Euro students that, “it is completely safe, in here any-
way, to disagree with me, make a comment, whatever you
want to say. I don’t care. The only thing you’ll get from me
in response is, ‘On what basis . . . have you come up with this
particular perspective?’ . . . I mean, there’s almost always
more than one point of view on stuff.”
District Judge Selna’s thoughtful decision, C.F. v. Capis-
trano Unified Sch. Dist., 615 F. Supp. 2d 1137 (C.D. Cal.
2009) (“Farnan I”), describes in detail the statements made
by Corbett that Farnan takes issue with, and we quote from a
selection of them here.2 Farnan challenges, for example, Cor-
2
These quotations come from transcripts of audio recordings Farnan
made during class without Corbett’s knowledge. We recognize that Cor-
bett alleges some of the recordings and transcripts have been edited and
the statements have been taken out of the context of the classes in which
they occurred. See Farnan I, 615 F. Supp. 2d at 1141 n.3.
Corbett also suggests that Farnan violated California Education Code
section 51512 by recording his lectures without written permission.
Because Corbett does not argue that this affects our analysis of this case,
we do not address that allegation.
11266 C.F. v. CAPISTRANO USD
bett’s commentary on how religion influenced serfs’ reactions
to Joseph II’s attempts to spearhead reform in the Holy
Roman Empire:
[H]ere is Joseph II. He’s trying, for example, to end
serfdom. Serfdom in which the peasants, the Ser[f]
class, on these estates [were], literally, property.
They had no rights to speak of at all. He doesn’t just
go that far. I mean, he tries to get them land. He . . .
really has the interest of this class of people at heart,
and the — the reforms that he makes really are going
to make the lives of these peasants massively better.
So why do the peasants oppose him? . . . Because he
also tried to reform religion, and the peasants love
their church.
It’s the same thing here. You know, you go down to
Georgia, Alabama, Mississippi, all these states that
are as red as they could possibly be, as right-wing
Republican as you could possibly be. [But] [w]hen
you first present these people with the economic pol-
icies of the Democratic party, they are all Demo-
crats. Virtually all the social programs they like. . . .
How do you get the peasants to oppose something
that is in their best interest? Religion. You have to
have something that is irrational to counter that ratio-
nal approach. No problem. . . . [W]hen you put on
your Jesus glasses, you can’t see the truth. Um,
Joseph made these reforms with no consultation,
with no consent. (Inaudible) in the state.
Now, the father of modern conservatism is
[Edmund] Burke. He’s in this chapter. And
[Edmund] Burke made a very good point here that
Joseph II should have paid attention to. You cannot
overturn long-held traditions overnight without caus-
ing chaos, you know. You need to approach it by
C.F. v. CAPISTRANO USD 11267
getting people some education, and you need to
move it in a way that gets their support before you
do anything. . . .
Farnan also takes issue with statements Corbett made about
the relationship between religion and the Scientific Revolu-
tion:
[B]y 1543 we got religious wars going on. These are
the religious wars that Charles V was involved with
with the German princes, right? And those wars are
going to end with the peace of Augsburg in 1555.
Okay. (Inaudible). [O]kay. So we’re talking about
the beginnings here, starting at a time of real reli-
gious upheaval. . . . But what was the consequence?
You know the consequence is that mankind becomes
— because of the seismic revolution — a kind of cog
in a cosmic clock instead of God’s most important
creation.
Um, see, people believed before the scientific revo-
lution that the Bible was literal and that anything that
happened, God did it. They didn’t understand. They
didn’t have the scientific method. They didn’t
approach truth. The explanation to everything liter-
ally was that God did it. And the ultimate authority
. . . was the Bible. . . .
[T]hink how humbling it’s going to be, you know,
when all these people who have been talking about
Adam and Eve and creation and all of this stuff for
all that time when eventually something happens,
and they find out that there are people on another
planet, six billion light years away, who don’t look
like us, worshipping huge geckos. (Students laugh-
ing.)
It’s — I mean, it’s profoundly disturbing (inaudible).
You have (inaudible) people who are deep believers
11268 C.F. v. CAPISTRANO USD
and find out that maybe we’re not so important.
Aristotle was a physicist. He said, “No movement
without movers.” And he argued that, you know,
there sort of has to be a God. Of course that’s non-
sense. I mean, that’s what you call deductive reason-
ing, you know. And you hear it all the time with
people who say, “Well, if all this stuff that makes up
the universe is here, something must have created
it.” Faulty logic. Very faulty logic. What’s another
explanation? . . .
Yeah. The answer is — the other possibility is, it’s
always been here. . . . Your call as to which one of
those notions is scientific and which one is magic.
(Inaudible) the spaghetti monster behind the moon.
I mean, all I’m saying is that, you know, the people
who want to make the argument that God did it,
there is as much evidence that God did it as there is
that there is a giant spaghetti monster living behind
the moon who did it. . . .3
Because I can say to you, you know at least one of
the laws of physics: Matter, can matter be — [Stu-
dent: Created or destroyed.] Therefore, no creation,
unless you invoke magic. Science doesn’t invoke
magic. If we can’t explain something, we do not
uphold that position. It’s not, ooh, then magic. That’s
not the way we work. If we can’t find a rational
explanation, we go looking for other rational expla-
nations. We do not invoke a supernatural every time
we get stymied.
3
Intervenors note that “spaghetti monster” is a term coined by evolution
proponents who criticized the logic of teaching “creation science” in pub-
lic schools. See, e.g., Cornelia Dean, Helping Out Darwin’s Cause With
a Little Pointed Humor, N.Y. Times, Dec. 27, 2005, available at http://
www.nytimes.com/2005/12/27/science/27evol.html.
C.F. v. CAPISTRANO USD 11269
It’s okay for religious people to, you know, or a
magician (inaudible). There may be a distinction, but
there is no difference. What was it that Mark Twain
said? “Religion was invented when the first con man
met the first [fool].”
Anyway, um, he argued that all movement — no
movement without a mover in a natural state, all
objects at rest. . . . [T]his is deductive logic. It
assumes a fact not supported by evidence and then
makes logical assumptions based on that fact. Um,
but, you know, we use inductive reasoning which
requires observation and experimentation. . . .
What happened in 1450 that changed science for-
ever? . . . Remember what I said about those books
that were handwritten . . . ? See, this is one of the
differences between the real scientists (inaudible)
creationism and evolution, you know. What do evo-
lutionary scientists do every day? They try and dis-
prove the theory of evolution. Every time we find
something new, we have to see if that fits with the
central organizing theory of biology, which is evolu-
tion.
The first time a scientist finds something that can’t
be explained, you know, in evolution, it may not be
thrown out, but it is undermined. And, actually,
when they do the research, they’re not looking to
prove evolution. They’re looking to disprove it.
That’s what the moral hypothesis is. You try and dis-
prove it. And the more you try and disprove it and
the more you fail, the more you believe it.
Contrast that with creationists. They never try to dis-
prove creationism. They’re all running around trying
to prove it. That’s deduction. It’s not science. Scien-
tifically, it’s nonsense. In the case of the printing
11270 C.F. v. CAPISTRANO USD
press, the printing press gives us the opportunity to
share ideas. Scientists wrote . . . an essay of some
scientific theory that you found, and other people are
going to be able to read it. And they’ll be able to test
what you did and see if it’s true . . . .
Farnan also focuses on a statement Corbett made about a
lawsuit filed against him and the District nearly 20 years ago
by a fellow teacher, John Peloza, who had been directed by
the school not to teach creationism in his science class. The
suit was ultimately resolved in favor of Corbett and the Dis-
trict in an opinion by this court holding that requiring science
teachers to teach evolution does not violate the First Amend-
ment. See Peloza v. Capistrano Unified Sch. Dist., 37 F.3d
517, 521-22 (9th Cir. 1994) (per curiam). During class a stu-
dent asked Corbett about the controversy involving Peloza,
and Corbett said the following:
I was the adviser to the student newspaper. In his
classes, [Peloza] was not telling the kids the scien-
tific truth about evolution. He was hinting to kids in
his class that there’s another explanation, and he
invited kids to his home so they could hear the truth,
the Biblical truth about all this. And he came in at
lunch and had meetings at lunch with kids who
wanted to believe in creationism. And, anyway, my
editor wrote an editorial in which she inferred [sic]
that [Peloza] was not teaching science in his biology
classroom. Instead, he was teaching religion.
He sued me as the advisor to the paper for five mil-
lion, as a matter of fact. He also, on another issue,
sued several other members of the faculty here
because he claimed that he had the right under rules
of academic freedom, because he was a fully quali-
fied biology teacher, to teach biology any way he
saw fit as a qualified teacher. . . .
C.F. v. CAPISTRANO USD 11271
[T]he school district hired an attorney to defend us.
And at the first meeting, the school district’s attor-
ney, my attorney, said, “First thing we need you all
to do, we do not need to make any more public state-
ments about this until the lawsuit is over.” At that
point, I stood up and said, “I’ll tell you what. I will
sign a statement giving you — you do not have to
defend me, but I will not leave John [Peloza] alone
to propagandize kids with this religious, supersti-
tious nonsense. . . . John wanted to talk about cre-
ation as a science and all that stuff, but you get
involved in that argument, you just lose because it’s
just nonsense. . . .
Based on these statements and others discussed in the dis-
trict court order, see Farnan I, 615 F. Supp. 2d at 1142-53,
Farnan filed suit under 42 U.S.C. §§ 1983 and 1988 alleging
that Corbett and the District violated the Establishment
Clause. He sought declaratory and injunctive relief and nomi-
nal damages. Corbett and the District answered the operative
first amended complaint in March 2008, but Corbett’s answer
made no mention of qualified immunity. The following
month, the district court granted the motion of the California
Teachers Association and Capistrano Unified Education
Association to intervene as defendants, and these intervenors
filed an answer raising Corbett’s entitlement to qualified
immunity as an affirmative defense.
The parties filed cross-motions for summary judgment on
the constitutionality of the challenged statements in March
2009. Without considering whether Corbett was entitled to
qualified immunity, the district court granted Farnan’s motion
for summary judgment as to the comment regarding John
Peloza’s lawsuit, but granted summary judgment to the defen-
dants as to all other challenged statements after concluding
that they did not violate the Establishment Clause. See id. The
district court denied Farnan’s request for injunctive and
declaratory relief. See C.F. v. Capistrano Unified Sch. Dist.,
11272 C.F. v. CAPISTRANO USD
647 F. Supp. 2d 1187, 1199 (C.D. Cal. 2009) (“Farnan II”).
Corbett subsequently moved to amend the scheduling order
and requested leave to file an amended answer asserting the
defense of qualified immunity. See C.F. v. Capistrano Unified
Sch. Dist., 656 F. Supp. 2d 1190, 1192 (C.D. Cal. 2009)
(“Farnan III”). The district court granted these motions and
ultimately held that, although the Peloza comment violated
the Establishment Clause, the law was not clearly established,
so Corbett was protected by qualified immunity. See id. at
1203-07.
The parties filed timely cross-appeals in October 2009. Far-
nan challenges the district court’s (1) rejection of his Estab-
lishment Clause challenge to all the statements except the
Peloza comment, (2) refusal to grant him declaratory relief,
(3) grant of leave to Corbett to file an amended answer, and
(4) grant of qualified immunity to Corbett. Corbett appeals the
grant of summary judgment to Farnan as to the unconstitu-
tionality of the Peloza comment. In accordance with the par-
ties’ stipulation, Farnan dismissed his appeal as to the District
and Corbett in his official capacity, so this appeal pertains
only to Farnan’s claims against Corbett in his individual
capacity.
DISCUSSION
I.
The district court had jurisdiction over Farnan’s § 1983
action under 28 U.S.C. §§ 1331 and 1343, and we have juris-
diction to hear the cross-appeals under 28 U.S.C. § 1291. We
review de novo both the grant of summary judgment and the
conclusion that a public employee is entitled to qualified
immunity. See Boyd v. Benton Cnty., 374 F.3d 773, 778 (9th
Cir. 2004); Peng v. Penghu, 335 F.3d 970, 973 (9th Cir.
2003). In evaluating whether summary judgment is appropri-
ate, we determine “whether the district court correctly applied
the substantive law” and whether, “view[ing] the evidence in
C.F. v. CAPISTRANO USD 11273
the light most favorable to the party against whom summary
judgment was granted,” “any genuine issue of material fact
exists.” Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir.
1987). Decisions involving pretrial scheduling orders under
Rule 16 and requests for leave to amend an answer are
reviewed for abuse of discretion. See Owens v. Kaiser Found.
Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001).
II.
[1] Farnan appeals the district court’s refusal to grant his
request for declaratory relief. We affirm because Farnan’s
graduation from high school mooted this claim. “Article III of
the Constitution requires that there be a live case or contro-
versy at the time that a federal court decides the case.” Burke
v. Barnes, 479 U.S. 361, 363 (1987). “It is well-settled that
once a student graduates, he no longer has a live case or con-
troversy justifying declaratory or injunctive relief against a
school’s action or policy.” Cole v. Oroville Union High Sch.
Dist., 228 F.3d 1092, 1098 (9th Cir. 2000); see also DeFunis
v. Odegaard, 416 U.S. 312, 316-19 (1974) (per curiam). Far-
nan concedes that his declaratory relief claim would be moot
under the general rule, but urges us to hold that his case falls
into the “capable of repetition, yet evading review” exception.
“That exception, however, is limited to extraordinary cases
in which (1) the duration of the challenged action is too short
to be fully litigated before it ceases, and (2) there is a reason-
able expectation that the plaintiff[ ] will be subjected to the
same action again.” Doe v. Madison Sch. Dist. No. 321, 177
F.3d 789, 798 (9th Cir. 1999) (en banc) (internal quotation
marks omitted); see also Davis v. FEC, 554 U.S. 724, 735
(2008) (“Th[e] exception applies where . . . there is a reason-
able expectation that the same complaining party will be sub-
ject to the same action again.”) (internal quotation marks
omitted). Because Farnan has graduated, there is no reason-
able probability that he will be subjected to the same action
again, and “just because this particular case did not reach the
11274 C.F. v. CAPISTRANO USD
Court until [after Farnan’s] graduation,” “it hardly follows
that the issue he raises will in the future evade review.”
DeFunis, 416 U.S. at 319; see also Cole, 228 F.3d at 1098-99;
Doe, 177 F.3d at 798-99.
Even though Farnan’s graduation mooted his claim for
declaratory relief, however, his damages claim remains via-
ble. See Cole, 228 F.3d at 1099. “[A] ‘live claim for [even]
nominal damages will prevent dismissal for mootness.’ ”
Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 425 (9th Cir.
2008) (quoting Bernhardt v. Cnty. of L.A., 279 F.3d 862, 871
(9th Cir. 2002)) (alterations in original). Accordingly, we pro-
ceed to the merits of the appeal.
III.
A.
Before we consider whether Corbett was entitled to quali-
fied immunity, we must address Farnan’s argument that the
district court erred by permitting Corbett to assert the defense
rather than holding that it was waived. Although the interve-
nors raised the defense on Corbett’s behalf in their answer,
Corbett did not assert the defense himself until after the dis-
trict court issued its decision on the constitutionality of the
challenged statements. The court then granted Corbett’s
motion to amend the scheduling order and granted him leave
to amend his answer to plead the defense of qualified immu-
nity. The district court did not abuse its discretion by permit-
ting these amendments.
[2] First, we consider whether the district court abused its
discretion in granting Corbett’s motion to amend the schedul-
ing order. “A schedule may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The
district court “is given broad discretion in supervising the pre-
trial phase of litigation, and its decisions regarding the preclu-
sive effect of a pretrial order . . . will not be disturbed unless
C.F. v. CAPISTRANO USD 11275
they evidence a clear abuse of discretion.” Johnson v. Mam-
moth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)
(omission in original) (internal quotation marks omitted); see
also Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir.
2007); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002). “[T]he focus of the inquiry is upon the mov-
ing party’s reasons for seeking modification.” Johnson, 975
F.2d at 609.
[3] The district court concluded there was good cause to
permit the amendment because the gravamen of Farnan’s case
centered on allegations of a barrage of allegedly hostile
remarks, and thus the tenor of the case changed significantly
when the court decided on summary judgment that only a sin-
gle statement violated the Establishment Clause. See Farnan
III, 656 F. Supp. 2d at 1193. The district court did not abuse
its discretion in concluding that this event, rather than any bad
faith or dilatory purpose, motivated Corbett’s request, and that
Corbett thus did not unduly delay. See id. at 1198. We also
credit the district court’s determination that the amendment
“created no meaningful case management issues” and did not
“infringe[ ] on the efficient adjudication” of the litigation
because “[t]he qualified immunity determination is a question
of law . . . based on the factual record already developed.” Id.
at 1197. No additional discovery was necessary and no delay
ensued. See id. Indeed, in Graves v. City of Coeur D’Alene,
we saw fit to raise the issue of qualified immunity sua sponte
on appeal precisely because “[q]ualified immunity is an issue
of law and, to the extent that it depends on the factual record,
that record ha[d] [already] been fully developed.” 339 F.3d
828, 845-46 & n.23 (9th Cir. 2003), abrogated in part on
other grounds by Hiibel v. Sixth Judicial Dist. Court of Nev.,
Humboldt Cnty., 542 U.S. 177 (2004).
[4] We also appreciate that the prejudice to Corbett from
a failure to modify the order likely would be substantial.
Although Farnan sought only nominal damages, the attorney’s
fees and costs for which Corbett could be liable absent the
11276 C.F. v. CAPISTRANO USD
protection of qualified immunity undoubtedly would be con-
siderable after more than three years of litigation. See Farnan
III, 656 F. Supp. 2d at 1199 (discussing D’Aguanno v. Gal-
lagher, 50 F.3d 877, 881 (11th Cir. 1995)). In evaluating
whether Farnan was prejudiced, we note that he was put on
notice that qualified immunity was at issue when the interve-
nors raised the defense on Corbett’s behalf in their answer,
long before the parties filed their motions for summary judg-
ment.4 In addition, a plaintiff does not establish prejudice
even when the timely assertion of an affirmative defense
would have been dispositive had it been asserted at the outset
of the suit. See Owens, 244 F.3d at 713. In any event, the dis-
trict court noted that “Corbett would very likely not have suc-
ceeded on a qualified immunity defense early on,” so even if
he had raised the defense in his motion for summary judg-
ment, “the Court would have nevertheless considered the
issue of whether a constitutional violation occurred.” Farnan
III, 656 F. Supp. 2d at 1199. We therefore conclude that the
district court did not abuse its discretion under Rule 16 by
permitting the amendment to the scheduling order. See Cole-
man v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.
2000); Johnson, 975 F.2d at 607-08.
[5] The district court also did not abuse its discretion under
Rule 15 by allowing Corbett to amend his answer. Rule 15(a)
provides that “[t]he court should freely give leave [to amend]
when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This pol-
icy is ‘to be applied with extreme liberality.’ ” Eminence Cap-
ital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)
(quoting Owens, 244 F.3d at 712). “Absent prejudice, or a
strong showing of any of the remaining Foman [v. Davis, 371
U.S. 178 (1962)] factors, there exists a presumption under
Rule 15(a) in favor of granting leave to amend.” Id.5 Corbett
4
We do not decide that an intervenor may raise a defense on behalf of
another party, but mention the intervenors’ answer only in terms of notice
to Farnan of Corbett’s potential defense.
5
The Foman factors include “[1] undue delay, bad faith or dilatory
motive on the part of the movant, [2] repeated failure to cure deficiencies
C.F. v. CAPISTRANO USD 11277
had not previously amended his answer and the amendment
was not futile. Further, as we have explained, there was no
undue delay, bad faith, dilatory motive or undue prejudice to
Farnan. See Waldrip v. Hall, 548 F.3d 729, 732-33 (9th Cir.
2008); Owens, 244 F.3d at 712. The district court thus did not
abuse its discretion. We therefore turn to the merits of Cor-
bett’s qualified immunity defense.
B.
1.
The Establishment Clause applies “not only to official con-
donement of a particular religion or religious belief, but also
to official disapproval or hostility toward religion.” Am. Fam-
ily Ass’n v. City & Cnty. of S.F., 277 F.3d 1114, 1120-21 (9th
Cir. 2002); see also McCreary Cnty. v. ACLU of Ky., 545 U.S.
844, 860 (2005) (“[The Establishment Clause] mandates gov-
ernmental neutrality between . . . religion and nonreligion.”
(internal quotation marks omitted)). The Supreme Court has
long made clear, however, that “the First Amendment does
not permit the State to require that teaching and learning must
be tailored to the principles or prohibitions of any religious
sect or dogma.” Epperson v. Arkansas, 393 U.S. 97, 106
(1968). Even statements exhibiting some hostility to religion
do not violate the Establishment Clause if the government
conduct at issue has a secular purpose, does not have as its
principal or primary effect inhibiting religion and does not
foster excessive government entanglement with religion. See
Am. Family, 277 F.3d at 1121; see also Edwards v. Aguillard,
482 U.S. 578, 583 (1987); Lemon v. Kurtzman, 403 U.S. 602
(1971).
by amendments previously allowed, [3] undue prejudice to the opposing
party by virtue of allowance of the amendment, [and] [4] futility of
amendment.” Eminence Capital, 316 F.3d at 1052 (quoting Foman, 371
U.S. at 182) (internal quotation marks omitted).
11278 C.F. v. CAPISTRANO USD
[6] In evaluating a grant of qualified immunity, we ask two
questions: (1) whether, taking the facts in the light most
favorable to the nonmoving party, the government official’s
conduct violated a constitutional right, and (2) whether the
right was clearly established at the time of the alleged miscon-
duct. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001), over-
ruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.
Ct. 808 (2009). If the answer to either is “no,” the official
cannot be held liable for damages. See id. We may address the
second question first, particularly where “it is plain that a con-
stitutional right is not clearly established but far from obvious
whether in fact there is such a right.” Pearson, 129 S. Ct. at
818. We have little trouble concluding that the law was not
clearly established at the time of the events in question —
there has never been any reported case holding that a teacher
violated the Establishment Clause by making statements in
the classroom that were allegedly hostile to religion. Because
the district court’s judgment must be affirmed on that basis,
we decline to consider the constitutionality of Corbett’s state-
ments, and we vacate the district court’s decision to the extent
it decided the constitutionality of any of Corbett’s statements.
See id. at 815-18.
2.
[7] “[G]overnmental officials . . . generally are shielded
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Deorle v.
Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) (omission in
original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982)) (internal quotation marks omitted). In evaluating
whether a right is clearly established, we look to the state of
the law at the time of the incident in question. See Bryan v.
MacPherson, 630 F.3d 805, 832 (9th Cir. 2010). “The con-
tours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creigh-
C.F. v. CAPISTRANO USD 11279
ton, 483 U.S. 635, 640 (1987)) (internal quotation marks
omitted). Courts “do not require a case directly on point, but
existing precedent must have placed the statutory or constitu-
tional question beyond debate.” Ashcroft v. al-Kidd, ___ U.S.
___, 131 S. Ct. 2074, 2083 (2011). That standard is not met
here — nothing put Corbett on notice that his statements
might violate the Establishment Clause. See Hope v. Pelzer,
536 U.S. 730, 739-41 (2002); Flores v. Morgan Hill Unified
Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir. 2003).
[8] The Supreme Court has recently reiterated that we must
not “define clearly established law at a high level of generali-
ty” when analyzing whether the qualified immunity standard
is met. Al-Kidd, 131 S. Ct. at 2084. Rather, the right alleged
to have been violated must be defined in a “ ‘more particular-
ized’ ” manner than, for example, “the general proposition
that use of force is contrary to the Fourth Amendment if it is
excessive under objective standards of reasonableness.” Sau-
cier, 533 U.S. at 201-02 (quoting Anderson, 483 U.S. at 640).
That is the fundamental problem with Farnan’s contention
that qualified immunity does not protect Corbett. Farnan
asserts that “[i]t has been clearly established for many years
that the government must remain neutral with regard to reli-
gion, and it may not show its disapproval of religion.” This
overbroad proposition, “cast at a high level of generality,” is
just the sort of sweeping statement of the law that is inappro-
priate for assessing whether qualified immunity applies.
Brousseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam);
see also al-Kidd, 131 S. Ct. at 2084; Saucier, 533 U.S. at 202-
01. Instead, the issues must be characterized with greater
specificity. See, e.g., Brousseau, 543 U.S. at 200 (defining the
relevant inquiry as whether it was a clearly established Fourth
Amendment violation “to shoot a disturbed felon, set on
avoiding capture through vehicular flight, when persons in the
immediate area are at risk from that flight”); Fogel v. Collins,
531 F.3d 824, 833 (9th Cir. 2008) (holding that qualified
immunity was warranted where there “was no reported case
in which a person in the post-September 11 environment satir-
11280 C.F. v. CAPISTRANO USD
ically proclaimed himself or herself to be a terrorist in posses-
sion of weapons of mass destruction”).
[9] Considering a more precise, and therefore relevant,
definition of the question at stake in this case suggests why
Farnan has sought to frame the issue so broadly: nothing in
the law would make clear to a reasonable person that he might
violate the Establishment Clause by making the challenged
statements in the context of a classroom discussion in an
Advanced Placement history course. Even as a general matter,
precedent on the Establishment Clause is scarce and we “have
little guidance concerning what constitutes a primary effect of
inhibiting religion.” Am. Family, 277 F.3d at 1122; see also
Vasquez v. L.A. Cnty., 487 F.3d 1246, 1256 (9th Cir. 2007)
(same). More to the point, we are aware of no prior case hold-
ing that a teacher violated the Establishment Clause by
appearing critical of religion during class lectures, nor any
case with sufficiently similar facts to give a teacher “fair
warning” that such conduct was unlawful. Flores, 324 F.3d at
1136-37; see also al-Kidd, 131 S. Ct. at 2084.
The only cases that Farnan argued in his briefs clearly
establish the law in the relevant educational context involve
claims that school officials were promoting religion rather
than expressing hostility toward it, and challenge systemic
actions such as state laws and school district policies rather
than parsing individual teachers’ classroom discussions. See,
e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15-
18 (2004) (holding that a father lacked standing to challenge
school district policy requiring teacher-led recitation of the
Pledge of Allegiance in his daughter’s kindergarten class);
Epperson, 393 U.S. at 104-08 (holding that Arkansas statutes
prohibiting the teaching of evolution in public schools vio-
lated the Establishment Clause); Sch. Dist. of Abington Twp.
v. Schempp, 374 U.S. 203, 223-25 (1963) (holding that state
laws requiring the reading of Bible verses and recitation of the
Lord’s Prayer in public school classes violated the Establish-
ment Clause). At oral argument, Farnan’s counsel conceded
C.F. v. CAPISTRANO USD 11281
that there is no case directly on point, but argued that the gen-
eral principles gleaned from the cases cited in his briefs, and
from cases involving claims of hostility to religion in nonedu-
cational contexts, are sufficient to clearly establish the law.
We cannot agree.
The Supreme Court has long recognized the importance of
protecting the “robust exchange of ideas” in education,
“which discovers truth ‘out of a multitude of tongues.’ ” Key-
ishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (quoting
United States v. Associated Press, D.C., 52 F. Supp. 362, 372
(S.D.N.Y. 1943)). “Teachers and students must always remain
free to inquire, to study and to evaluate, to gain new maturity
and understanding . . . .” Id. (quoting Sweezy v. New Hamp-
shire, 354 U.S. 234, 250 (1957)) (internal quotation marks
omitted); see also Nat’l Sch. Bds. Ass’n, School Board Poli-
cies on Academic Freedom 2, 5 (1973) (“Academic freedom
is an essential for responsible teachers. . . . To prepare stu-
dents for adult roles in a democratic society, teachers and the
schools must try to maintain an atmosphere of free inquiry.”).
This academic freedom will sometimes lead to the examina-
tion of controversial issues. Both parties agree that AP Euro
could not be taught without discussing religion. We have no
doubt that the freedom to have a frank discussion about the
role of religion in history is an integral part of any advanced
history course. Indeed, a collective of organizations including
the American Association of School Administrators, Ameri-
can Federation of Teachers, National Education Association
and National School Boards Association, has long acknowl-
edged that “[b]ecause religion plays a significant role in his-
tory and society, study about religion is essential to
understanding both the nation and the world.” Religion in the
Public School Curriculum: Questions and Answers, 8 J.L. &
Religion 309, 310 (1990); see also Tenn. Educ. Ass’n, A
Teacher’s Guide to Religion in the Public Schools 2 (2008)
(same).
[10] In broaching controversial issues like religion, teach-
ers must be sensitive to students’ personal beliefs and take
11282 C.F. v. CAPISTRANO USD
care not to abuse their positions of authority. See Edwards,
482 U.S. at 584 (“Families entrust public schools with the
education of their children, but condition their trust on the
understanding that the classroom will not purposely be used
to advance religious views that may conflict with the private
beliefs of the student and his or her family.”). But teachers
must also be given leeway to challenge students to foster criti-
cal thinking skills and develop their analytical abilities. This
balance is hard to achieve, and we must be careful not to curb
intellectual freedom by imposing dogmatic restrictions that
chill teachers from adopting the pedagogical methods they
believe are most effective. Cf. Keyishian, 384 U.S. at 604. At
some point a teacher’s comments on religion might cross the
line and rise to the level of unconstitutional hostility. But
without any cases illuminating the “ ‘dimly perceive[d] . . .
line[ ] of demarcation’ ” between permissible and impermissi-
ble discussion of religion in a college level history class, we
cannot conclude that a reasonable teacher standing in Cor-
bett’s shoes would have been on notice that his actions might
be unconstitutional. Mueller v. Allen, 463 U.S. 388, 393
(1983) (quoting Lemon, 403 U.S. at 612). We therefore affirm
the district court’s decision that Corbett was entitled to quali-
fied immunity.
CONCLUSION
[11] “[T]he Establishment Clause presents especially diffi-
cult questions of interpretation and application,” and we can-
not expect Corbett to have divined the law without the
guidance of any prior case on point. Id. at 392. Because we
conclude that Corbett is entitled to the protection of qualified
immunity, we affirm the district court’s judgment granting
qualified immunity. Because we do not reach the constitution-
ality of any of Corbett’s statements, we vacate the district
court’s judgment in that respect. Each party shall bear its own
costs on appeal.
AFFIRMED in part, VACATED in part.