MOHAMED SABRA V. MARICOPA COUNTY COMMUNITY COLL, No. 20-16774 (9th Cir. 2022)
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Plaintiffs brought this action against Defendant and the Maricopa County Community College District (the “College District”). Plaintiffs allege that a module on Islamic terrorism within a course in world politics taught by Defendant at Scottsdale Community College (the “College”) violated Plaintiffs’ constitutional rights under the Establishment Clause and Free Exercise Clause of the First Amendment. Plaintiffs also allege that Defendant’s disparaging treatment of Islam was part of an official policy embraced by the College District. The district court granted Defendants’ motion to dismiss the Complaint, and the Plaintiffs appealed.
The Ninth Circuit affirmed the district court’s dismissal of the action. The court held that Plaintiffs could not sustain a claim for municipal liability against the College District. First, Plaintiffs abandoned their municipal liability claim on appeal by failing to address it in their Reply Brief even after the College District raised the argument in its Answering Brief on appeal.
But even on the merits, the claim could not survive dismissal under Fed. R. Civ. P. 12(b)(6). Although Plaintiffs alleged that Defendant has taught his World Politics class for 24 years, they did not allege that the course in other years contained the same content that offended Plaintiff, or that Defendant’s views or teaching methods were so persistent and widespread as to constitute part of the College District’s standard operating procedure. Further, the court held that Defendant was entitled to qualified immunity with respect to Plaintiffs’ Establishment Clause and Free Exercise claims.
Court Description: Civil Rights. The panel affirmed the district court’s dismissal of an action brought pursuant to 42 U.S.C. § 1983 against Dr. Nicholas Damask and the Maricopa County Community College District alleging that a module on Islamic terrorism within a course in world politics taught by Damask at Scottsdale Community College violated plaintiff’s constitutional rights under the Establishment Clause and Free Exercise Clause of the First Amendment, and that Damask’s disparaging treatment of Islam was part of an official policy embraced by the College District. The panel first concluded that the Council on American- Islamic Relations of Arizona, Inc. (CAIR-AZ) had organizational standing to bring this action alongside plaintiff Mohamed Sabra. CAIR-AZ, a non-profit organization that advocates for the civil rights of American Muslims, alleged that Damask’s actions frustrated its mission and caused it to divert resources in order to combat Damask’s distorted portrayal of Islam. At the motion-to- dismiss stage, these allegations were sufficient to establish organizational standing. The panel next held that plaintiffs could not sustain a claim for municipal liability against the College District. First, plaintiffs abandoned their municipal liability claim on appeal by failing to address it in their Reply Brief even after the College District raised the argument in its Answering SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 3 Brief on appeal. But even on the merits, the claim could not survive dismissal under Fed. R. Civ. P. 12(b)(6). Although plaintiffs alleged that Damask has taught his World Politics class for 24 years, they did not allege that the course in other years contained the same content that offended Sabra, or that Damask’s views or teaching methods were so persistent and widespread as to constitute part of the College District’s standard operating procedure. Plaintiffs also failed to produce authority suggesting that a professor becomes a “final policymaker” for an entire community college district simply by assuming administrative responsibilities within his department, nor had the panel located any such authority. The panel held that Damask was entitled to qualified immunity with respect to plaintiffs’ Establishment Clause and Free Exercise claims. Under the second prong of the qualified immunity analysis, the constitutional right allegedly violated in this case was not clearly established at the time of the events giving rise to this action. This court has never held that actions like the ones challenged in this case constitute a violation of the Establishment Clause or Free Exercise Clause. Nor was this the exceptional case where the alleged constitutional violation was so obvious as to obviate the need for a case on point. Rather, the context of this case weighed heavily against any argument that the violation was obvious. Because the “clearly established” prong was dispositive, the panel did not address whether, under the facts alleged in the complaint, Damask violated Sabra’s constitutional rights. Concurring, Judge VanDyke agreed with the majority but wrote to respond to Judge Bress’s position that qualified immunity was inappropriate because Sabra’s Free Exercise claim was clearly established. In reality, Sabra’s Free Exercise claim—whether it might ultimately succeed or 4 SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. not—was fraught with difficulties, which is why no claim like it has ever, to Judge VanDyke’s knowledge, been squarely addressed by any court. Judge VanDyke also wrote separately to briefly note this court’s misguided approach to organizational standing. Here, the only resources CAIR-AZ diverted from its organization were those to further its stated purpose of “protecting the civil rights of American Muslims.” An activity that falls exactly in line with an organization’s stated purpose seriously undermines any sense of injury, and therefore runs afoul of the Supreme Court’s threshold requirement that injury be “concrete and particularized” and “actual or imminent.” Dissenting, Judge Bress stated that the question here was not whether Sabra should prevail but merely whether he had stated a claim for relief at the motion to dismiss stage. Although Sabra suffered no First Amendment injury through his mere exposure to inflammatory course materials, he may have suffered such an injury when, in connection with those disturbing materials, he was forced to answer black and white multiple-choice questions that he plausibly alleged required him to violate his religious beliefs on pain of receiving a lower grade. Discovery was therefore needed to assess Damask’s explanations for his facially problematic quiz questions. Judge Bress also disagreed with affirming the dismissal of the College District on the ground that Sabra had not pleaded a custom or practice for purposes of municipal liability. The district court never reached this issue, the College devoted minimal briefing to it, and Sabra had never been given an opportunity to amend his complaint. The majority then prevented Sabra from even having a standard opportunity to replead by holding that Sabra had abandoned this claim on appeal—an abandonment holding that was unsound, unprecedented, and unfair. SABRA V. MARICOPA CNTY. CMTY. COLL. DIST. 5
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