concurring in part and dissenting in part:
I am in agreement with the majority’s resolution of John Peloza’s Establishment Clause and Due Process Clause claims. However, because I believe we can dismiss Peloza’s free speech claims only by turning a deaf ear to the procedural posture of this ease, I respectfully dissent from parts I.B and II of the majority opinion.
I
Schoolteacher John Peloza seeks a declaratory judgment permitting him to “respond[ ] to student-initiated inquiries ... regarding religion” during contract time. The majority opinion concludes that if Peloza’s discussions would constitute an establishment of religion, the District may permissibly limit those discussions, even though such limitations restrict Peloza’s free speech. With this I have no quarrel. But the majority’s premise is that any discussions Peloza might have do constitute such an establishment, and I am unpersuaded that we may reach such a conclusion in the case’s present posture..
This is an appeal from the granting of a Rule 12(b)(6) motion. As such, we are not permitted to affirm dismissal of the complaint “unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989). At this stage, we know almost nothing about what past or future discussions might involve. I can imagine a wide range of circumstances and questions “regarding religion” which Peloza could permissibly answer without violating the Establishment Clause. For example, a student might come to a teacher during lunch and ask about Malcolm X or Martin Luther King’s religious beliefs, and how and why they evolved, or about the origins of Islam, or what the seven great religions of the world were. Such questions would certainly be “regarding religion,” student-initiated, and during contract time. As such, they fall within the class of discussions Peloza seeks to be permitted, yet it is hard to see how the descriptive role a teacher would have in responding to these questions would work any violation of the Establishment Clause.
The majority holding only makes sense if we presume that we know what kinds of questions are being asked and what kinds of answers Peloza would give. In the posture of this case, where we must reverse if there are any facts Peloza could conceivably prove which would entitle him to relief, this is a presumption we are forbidden from making. As a result, the majority holding means that any response to a student-initiated inquiry “regarding religion” during contract time, other than “Ask someone else,” works a violation of the Establishment Clause. I cannot join in such a broad legal holding, and indeed the case law forbids it:
In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application.... The line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a “blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Lemon [v. Kurtzman ], 403 U.S. [602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971) ].
Lynch v. Donnelly, 465 U.S. 668, 678-79, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984).
Roberts v. Madigan, 921 F.2d 1047 (10th Cir.1990), upon which', the majority relies, is not to the contrary. There, the court had before it a host of particulars: the conduct at issue involved a teacher displaying religious books and a poster reading “You have only to open your eyes to see the hand of God” in the classroom. Id. at 1049. That court also had the benefit of a district court factual determination that the conduct “created the appearance that [the teacher] was seeking to advance his religious views.” Id. As this case stands, we know far less.
The majority impermissibly attempts to narrow the scope of Peloza’s complaint by relying on a written warning from the school district which Peloza has incorporated into *526the complaint. The letter forbids Peloza from “attempt[ing] to convert students to Christianity or initiating, conversations about your religious beliefs.” Complaint at ¶45. Were this all that the complaint said, I would have little trouble joining the majority. But the complaint alleges more; it contends that “the school district ... has directed Plaintiff not to discuss any religious matters during any of this ‘instructional time,’ including student-initiated conversations regarding religion during lunch, class breaks, and before and after school hours.” Complaint at ¶3. This allegation we must take as true. If all that lies behind it is the far narrower warning the majority cites, then Peloza’s ease will not be long for this world. But we may not presume that this is so.
I believe that, in a broad range of cases, the majority and I could agree about what would or would not constitute a violation of the Establishment Clause. But the majority errs in presuming to know that what is at stake here is Peloza’s right to “diseuss[ ] his religious beliefs” with students. In doing so, it ignores the fact that this is a Rule 12(b)(6) case. More generally, it gives short shrift to the possibility that we may well be limiting free speech more broadly than the state’s compelling interest in avoiding an establishment of religion would warrant.
II
I join in the majority’s part II insofar as it dismisses Peloza’s § 1986(3) due process and Establishment Clause claims based on his failure to properly allege a violation of these rights. However, because I conclude that Peloza’s free speech claim should not have been dismissed, I would also remand, rather than dismiss, his § 1986(3) claim based on alleged free speech violations.
III
Religion has been used to justify the suppression of speech for centuries. See Everson v. Board of Ed., 330 U.S. 1, 8-10, 67 S.Ct. 504, 507-09, 91 L.Ed. 711 (1947). With the development of a vigorous First Amendment jurisprudence, we have quelled some of the worst abuses. But points of tension remain. We must thus remain vigilant to ensure that in our rush to preserve certain fundamental rights, we do not trample others. Caution is of the essence; only through a methodical and fact-specific jurisprudence can we hope to achieve a proper accommodation.
For the reasons stated above, I respectfully dissent.