It is not possible to improve on CUNY law prof Ruthann Robson's post title describing a 9th circuit case, CF v. Capistrano Unified School District (PDF), and so I haven't tried. Full props to the professor. The case is a First Amendment minefield and well worth a read. A veteran California high school teacher, Dr. James Corbett, riled a 15-year old student and his parents by lacing his AP European history classes with derogatory comments about religion. The student recorded the lectures without Corbett's permission, and the court bases its reasoning on the transcript of the recordings while noting that Corbett alleges some of the recordings and transcripts were edited and statements taken out of the context. Here's a sample, from a lesson about Holy Roman Emperor Joseph II:
[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 rational 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.
The 9th circuit opinion leaves the field still a little muddled. Dr. Corbett is granted qualified immunity, but the opinion says that "at some point" a teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility. And Prof. Robson raises a rhetorical eyebrow that the court found it worth noting that Dr. Corbett "is a Christian who regularly prays and attends church services."
When the district court opinion came down in 2009, Eugene Volokh had some typically interesting commentary, including this:
When I taught criminal law one year, one of the hypotheticals involves the question whether casting a voodoo spell on someone, believing that it would cause the person to die, should count as a criminally punishable attempted murder. That's a difficult question; as I noted before, a few court opinions have considered it and quickly concluded that it shouldn't so count, but as a doctrinal matter it's not clear why -- generally speaking, trying to kill someone is attempted murder even if the attempt is clearly doomed to failure, for instance because you think your gun works but it's actually broken, or because you use a substance that you think is poison but really isn't. Why not if you use a method (voodoo) that you think works but actually doesn't?
One possible answer is offered by the Model Penal Code § 5.05, which says that "If the particular conduct ... is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger ...," a lower penalty may be imposed or the prosecution might be entirely dismissed. And I pointed out that, because voodoo is bunk, this section might well apply (which of course raises the question whether would-be voodoo killers are still dangerous because they might turn to non-voodoo attempts if the voodoo attempt fails, but that's a different matter).
A couple of students after class actually told me that they thought this might be offensive to people who believe in voodoo, but my view was that I can't teach my classes with an eye towards not offending people who believe in voodoo, just as I don't have to worry about people who believe in ghosts or werewolves or unicorns. But under the court's reasoning, would I have been violating the Establishment Clause? (Recall that the endorsement test isn't limited to high schools, but generally applies to public universities as well.) What if a student says that the Earth is 6000 years old because that's what the Bible says; is a public university or high school teacher constitutionally barred from dismissing that theory as "nonsense"? What if a student calls belief in astrology "nonsense," fully aware that some people (not many, but some) have a religious belief system that treats astrology as sensible and in fact as something like a sacrament?
Now I suppose it's possible for teachers, both high school and college, to carefully avoid calling anything that might possibly be linked to a religious belief system "nonsense," and instead just say "it's scientifically unfounded" or some such (though wouldn't that be disapproval, too?). But that would make the discussion pretty artificial, with the teacher being constitutionally barred from saying what is pretty obviously on his mind. Nor would it be true to the principle that schools should be forthright about what's true and what's false: Do we really want high schools and universities to be places where one can't call astrology or voodoo bunk? And while in some classes the pedagogically superior practice would be to talk about why a particular belief system is indeed unfounded, that often won't be so: My class, for instance, wasn't a class about the scientific reasons why voodoo isn't going to work.
Art: Joseph II Plows a Field near Slavikovice on August 19, 1769 (late 18th Century) ,engraving.
