Ninth Circuit Hears Arguments|in Modern-Day Monkey Trial


     (CN) – In a 9th Circuit hearing, attorneys sparred over whether a former California public school student could compel a jury trial against his former teacher for dismissing creationism as “superstitious nonsense.” According to the teacher’s attorney, Erwin Chemerinsky: “Your Honor, there is no case in the history of this country where any other teacher has been found liable or sued for statements of this sort.” Allowing the case to proceed to trial would have a chilling effect on other teachers, Chemerinsky said.



     Chemerinsky said that even the attorneys representing the student called the case “constitutionally unique.”
     That case, filed on Dec. 11, 2007, involved the family of Chad Farnan, then a student in the affluent coastal town of San Juan Capistrano.
     Farnan claimed that his advanced placement European history teacher James Corbett made more than 20 statements that were “inflammatory” and “hostile” toward Christianity.
     Every defendant except Corbett has been dismissed from the original lawsuit, C.F. v. Capistrano Unified School District.
     The Christian advocacy group Advocates for Faith and Freedom, based in the inland town of Murrieta, took up his cause, seeking declaratory judgment and money damages against Corbett.
     Almost two years after the case was filed, U.S. District Judge James Selna ruled that only one of the roughly two dozen statements, dismissing creationism as “superstitious nonsense,” violated the Establishment Clause, which bars an endorsement of, or hostility to, a religion by a public employee.
     Both Corbett and Farnan disputed Selna’s ruling.
     Corbett denied that any of his statements violated the Establishment Clause; the Farnan family maintained that all of the statements did.
     In the 9th Circuit hearing in Pasadena on Feb. 11, Farnan’s attorney Jennifer Lynn Monk asked the three-judge panel to allow Farnan a jury trial for monetary damages; Chemerinsky asked them to grant Corbett immunity from all litigation.
     “Underlying this case are difficult questions about the meaning of the Establishment Clause that have never been dealt with by this court, the Supreme Court, or any court,” Chemerinsky said.
     Chemerinsky said that Corbett was not expressing hostility to religion by making provocative and literary criticisms about creationism, Aristotle and other subjects.
     “Statements critical of religion are not necessarily hostile to religion. It is impossible to imagine teaching a European history class without making statements that are disapproving of what religion did,” Chemerinsky said.
     Monk objected to Corbett’s quoting Mark Twain’s statement, “Religion was invented when the first con man met the first fool.”
     “Comments like that, clearly from an informed reasonable observer, convey a message of disapproval and they’re not necessary,” Monk said.
     Chemerinsky replied: “There’s nothing wrong with quoting Mark Twain in that quote. Mark Twain did say that.”
     (Teaching Mark Twain in public schools has been controversial for more than a century, and the publication of a Bowdlerized version of “Adventures of Huckleberry Finn” revived the debate this year.)
     Monk said that Corbett showed hostility toward religion by dismissing Aristotle’s proof of God’s existence as “nonsense.”
     Chemerinsky made a distinction between calling a “proof” of God’s existence “nonsense” and criticizing religious belief.
     “If we’re going to parse the language, he was saying of course it’s nonsense to say that there has to be a God,” Chemerinsky said. “That is saying that there are various viewpoints. Some believe in God and some don’t. … To say that it’s nonsense that there has to be a God is not expressing hostility toward religion.”
     Corbett also compared belief in creationism to believing in a “Gigantic Spaghetti Monster,” Monk said.
     Corbett apparently drew his imagery from the satirical website representing itself as “The Church of the Flying Spaghetti Monster.”
     Monk said that Supreme Court precedent showed that a teacher could teach the Bible objectively – but she said that Corbett did not.
     “In Epperson v. Arkansas, the Supreme Court ruled that the Bible could be taught from an historical and literary perspective … and not run afoul of the Establishment Clause. Dr. Corbett could have done that here,” Monk said.
     Chemerinsky countered that teachers must be allowed to have spontaneity in their classrooms.
     “It’s the nature of teaching that you don’t read a script. You’re saying things spontaneously to be provocative to your students.”
     Chemerinsky added: “I think courts need to be extremely reluctant to create liability for teachers for what they say in their classroom. Academic freedom and the First Amendment in that way are very much implicated. There has to be deference to teachers for the comments they make. Teachers say provocative things to get students to think.”
     He added that allowing Corbett to face liability could have a “chilling effect” on other teachers.
     U.S. Circuit Judge Mark Wolf thanked the attorneys. “Counsel, we appreciate the arguments,” Wolf said. “We have to make a decision without rushing. We are ready to get to the meat of this case.”

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