Sabra v. Maricopa County Community College District

• Court: District Court, D. Arizona
• Decided: August 18, 2020
• Docket: 2:20-cv-01080
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mohamed Sabra and Council on American- No. CV-20-01080-PHX-SMB Islamic Relations of Arizona, 10 ORDER Plaintiffs, 11 v. 12 Maricopa County Community College 13 District and Nicholas Damask,

14 Defendants. 15 16 Pending before the Court is Defendants’ Motion to Dismiss. (Doc. 25) Although a 17 preliminary injunction motion is also pending, the Court has postponed its ruling on that 18 motion until resolving this one because of the dispositive legal issues raised. (Doc. 27) Oral 19 argument was heard on August 6, 2020 for this motion. (Doc. 33) After considering the 20 pleadings and oral argument, the Court will grant the motion for the reasons explained 21 below. 22 I. BACKGROUND 23 Arising out of an Islamic Terrorism module in an online World Politics course 24 taught by Dr. Nicholas Damask, this case tests the limits of the First Amendment’s Religion 25 Clauses. Mohamed Sabra enrolled in this spring semester course at Scottsdale Community 26 College (“SCC”) in 2020. (Id. ¶ 7.) Its syllabus describes it as one that will provide an 27 “[i]ntroduction to the principles and issues relating to the study of international relations. 28 Evaluation of the political, economic, national, and transnational rationale for international 1 interactions.” (Id.) 2 The course is organized into six modules, each containing multiple components to 3 explore various topics concerning world politics. (Id. ¶ 8.) The Islamic Terrorism module 4 challenged by Mr. Sabra and the Council on American-Islamic Relations of Arizona 5 (“CAIR-AZ”) had three components: a PowerPoint presentation, excerpts from Future 6 Jihad, and a quiz. (Id. ¶¶ 8-9.) The PowerPoint presentation explored world politics 7 through three sub-topics: (1) “Defining Terrorism”; (2) “Islamic Terrorism: Definition”; 8 and (3) “Islamic Terrorism: Analysis.” (Id. ¶¶ 10-32.) The second component required 9 students to read excerpts from Future Jihad, a book published by Walid Phares, and the 10 quiz evaluated students on their comprehension of course material with twenty-five 11 multiple choice questions. (See id. ¶¶ 33-53.) 12 Plaintiffs take issue with Dr. Damask’s instruction throughout these various Islamic 13 Terrorism module components, alleging that his teachings violate the Establishment Clause 14 and Free Exercise Clause of the First Amendment to the United States Constitution. (Id. ¶¶ 15 64-74.) Plaintiffs allege his instruction unconstitutionally “conclude[es] that Islam 16 ‘mandates’ terrorism and the killing of Non-Muslims, and that this is the only interpretation 17 of religious texts, but without any disclaimer to inform students that this is one-perspective 18 and that Islam itself does not condone terrorism.” (Id. ¶ 67.) They further allege that Dr. 19 Damask “is not teaching that only some extremists espouse these beliefs, but rather that 20 literally, Islam itself teaches the mandates of terrorism.” (Id. ¶ 68.) And “[t]he only 21 objectively reasonable construction of [Dr.] Damask’s actions,” Plaintiffs allege, “is that 22 his primary message is the disapproval of Islam.” (Id. ¶ 69.) As it specifically concerns the 23 quiz, Plaintiffs allege “[it] forced [Mr.] Sabra to agree to [Dr. Damask’s] radical 24 interpretation of Islam.” (Id. ¶ 74.) And when Mr. Sabra refused to answer questions in 25 accordance with what he learned in the course, his answers were marked wrong, and his 26 course grade was negatively impacted. (Id.) 27 Plaintiffs’ Establishment Clause and Free Exercise Clause claims are brought 28 against Dr. Damask in his individual and official capacities and the Maricopa County 1 Community College District (“MCCCD”) under 42 U.S.C. § 1983.1 Each Plaintiff requests 2 declaratory and injunctive relief, nominal damages, and attorneys’ fees and costs. Dr. 3 Damask and MCCCD move to dismiss both Plaintiffs’ claims under Federal Rules of Civil 4 Procedure 12(b)(1) and 12(b)(6). 5 II. LEGAL STANDARD 6 “Federal courts are courts of limited jurisdiction. They possess only that power 7 authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 8 U.S. 375, 377 (1994). As a result, “[i]t is to be presumed that a cause lies outside this 9 limited jurisdiction and the burden of establishing the contrary rests with the party asserting 10 jurisdiction.” Id. (internal and external citations omitted). Under Federal Rule of Civil 11 Procedure 12(b)(1), a party may move to dismiss for lack of subject-matter jurisdiction. 12 Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1227 (9th Cir. 2011). Motions to 13 dismiss under this Rule “may attack either the allegations of the complaint as insufficient 14 to confer upon the court subject matter jurisdiction, or the existence of subject matter 15 jurisdiction in fact.” Renteria v. United States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) 16 (citing Thornhill Publ’g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 17 1979)). And “unlike a motion under Rule 12(b)(6), the moving party may submit ‘affidavits 18 or any other evidence properly before the court.’” Assoc. of Am. Med. Colleges v. United 19 States, 217 F.3d 770, 778 (9th Cir. 2000) (quoting St. Clair v. City of Chico, 880 F.2d 199, 20 201 (9th Cir. 1989)). If the moving party submits evidence showing a lack of subject matter 21 jurisdiction, “[i]t then becomes necessary for the party opposing the motion to present 22 affidavits or any other evidence necessary to satisfy its burden of establishing that the court, 23 in fact, possesses subject matter jurisdiction.” St. Clair, 880 F.2d at 201. But “[w]hen the 24 motion to dismiss attacks the allegations of the complaint as insufficient[,]” like here, “all 25 allegations of material fact are taken as true and construed in the light most favorable to 26 the nonmoving party.” Renteria, 452 F.Supp.2d at 919 (citing Fed’n of African Am. Contr.

27 1 MCCCD is alleged to have had constructive knowledge of Dr. Damask’s allegedly 28 unconstitutional conduct. (Id. ¶¶ 57, 58, 70.) In addition, Dr. Damask is alleged to be a policymaker for MCCCD. (Id. ¶¶ 59, 71.) 1 v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)). 2 In addition to moving to dismiss for lack of subject-matter jurisdiction, a party may 3 move to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). When evaluating 4 a complaint under Rule 12(b)(6), well-pled factual allegations are presumed true and 5 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 6 1063, 1067 (9th Cir. 2009). To survive a Rule 12(b)(6) motion to dismiss, a complaint must 7 meet Rule 8(a)(2)’s minimum requirements. Rule 8(a)(2) requires a “short and plain 8 statement of the claim showing that the pleader is entitled to relief,” so that the defendant 9 has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. 10 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 11 (1957)). A complaint setting forth a cognizable legal theory survives a motion to dismiss 12 if it contains enough factual allegations stating a claim to relief that is “plausible on its 13 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 14 Facial plausibility only exists if the pleader sets forth “factual content that allows the court 15 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 16 Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 17 statements, do not suffice.” Id. Plausibility does not equal “probability,” but requires “more 18 than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint 19 pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the 20 line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 21 550 U.S. at 557). 22 III. DISCUSSION 23 The Court begins with Defendants’ challenges to the Court’s power to hear this case. 24 Just because Plaintiffs allege First Amendment claims does not necessarily mean the Court 25 can render a judgment affecting the parties’ rights.2 Rather, only if the Court has 26 2 At the preliminary injunction evidentiary hearing that was ultimately vacated pending the 27 Court’s ruling on this motion, Plaintiffs’ counsel argued that “the Court has jurisdiction to 28 hear a First Amendment Establishment Clause [case].” (Doc. 27.) This is of course only partially true. Although Congress can, and has limited the Court’s jurisdiction by statute, 1 jurisdiction can the parties’ grievances be heard. If that is the case, the Court will turn to 2 the remaining arguments under Rule 12(b)(6). 3 A. Article III Standing 4 The Court’s jurisdiction is limited to cases and controversies. Raines v. Byrd, 521 5 U.S. 811, 818 (1997). “Without jurisdiction the court cannot proceed at all in any cause. 6 Jurisdiction is power to declare the law, and when it ceases to exist, the only function 7 remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte 8 McCardle, 74 U.S. 506, 514 (1868); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 9 (2006) (“If a dispute is not a proper case or controversy, the courts have no business 10 deciding it, or expounding the law in the course of doing so.”). To show a case or 11 controversy exists, each plaintiff must establish that he, she, or it has standing to bring its 12 alleged claims. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). To show such a 13 thing, “[each] plaintiff must demonstrate (1) that [he, she, or it] suffered an injury in fact 14 that is concrete, particularized, and actual or imminent, (2) that the injury was caused by 15 the defendant[s], and (3) that the injury would likely be redressed by the requested judicial 16 relief.” Thole v. U.S. Bank N.A., 140 S.Ct. 1615, 1618 (2020). 17 Here, Dr. Damask and MCCCD argue that Plaintiffs lack standing to bring their 18 First Amendment claims because Mr. Sabra finished the World Politics course at SCC 19 before bringing this action and no “official policy” is alleged to have caused their injuries. 20 (Doc. 25 at 2, 7-12.) Without meaningfully disputing that Mr. Sabra lacks standing because 21 his claims are moot—Plaintiffs merely state “Mr. Sabra is requesting money damages”— 22 they argue that CAIR-AZ has organizational standing. (Doc. 29 at 8-12.) They further 23 argue that the complaint alleges a municipal policy that caused their injuries and permits 24 their lawsuit against MCCCD and Dr. Damask in his official capacity. (Id. at 10-12.) 25 i. Mr. Sabra’s Has Standing for His Constitutional Claims. 26 Standing for each claim must continue to exist throughout the course of litigation, 27

28 see e.g. 28 U.S.C. § 1331, the standing requirement in Article III of the United States Constitution is an entirely separate inquiry. See Lujan, 504 U.S. at 560–61. 1 or the claim becomes moot. Doe v. Madison School Dist. No. 321, 177 F.3d 789, 797-98 2 (9th Cir. 1999); Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998) (“Generally, 3 an action is moot when the issues presented are no longer ‘live’ or the parties lack a legally 4 cognizable interest in the outcome.”). 5 Here, it is undisputed Mr. Sabra completed the World Politics course; therefore, it 6 does not appear that the Court could remedy his alleged injuries by declaratory or 7 injunctive relief. However, Plaintiffs request nominal damages on Mr. Sabra’s behalf, 8 which permits the Court to provide relief. Thus, Mr. Sabra’s request for declaratory and 9 injunctive relief are moot, but his request for nominal monetary damages survives. See 10 Doe, 177 F.3d at 798. 11 ii. CAIR-AZ lacks standing 12 An organization may have Article III standing to sue on its own behalf when “it can 13 demonstrate: (1) frustration of its organizational mission; and (2) diversion of its resources 14 to combat the particular [conduct] in question.” Am. Diabetes Ass'n v. United States Dep't 15 of the Army, 938 F.3d 1147, 1154 (9th Cir. 2019) (quoting Smith v. Pac. Properties & Dev. 16 Corp., 358 F.3d 1097, 1105 (9th Cir. 2004)).3 “An organizational plaintiff must allege 17 ‘more than simply a setback to the organization’s abstract social interests.’” Mecinas v. 18 Hobbs, No. CV-19-05547-PHX-DJH, 2020 WL 3472552, at *9 (D. Ariz. June 25, 2020) 19 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 20 214 (1982)). “It must instead show that it would have suffered some other injury if it had 21 not diverted resources to counteracting the problem.” La Asociacion de Trabajadores de 22 Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). Courts have found 23

24 3 Alternatively, “[a]n organization has standing to sue on behalf of its members where: ‘(a) its members would otherwise have standing to sue in their own right; (b) the interests it 25 seeks to protect are germane to the organization's purposes; and (c) neither the claim 26 asserted nor the relief requested requires the participation of individual members in the lawsuit.’” Am. Diabetes Ass'n, 938 F.3d at 1154 (quoting Ecological Rights Found., 230 27 F.3d at 1147). Plaintiffs do not argue for associational standing under this theory. “CAIR- 28 AZ’s organizational standing stems from Defendants’ [conduct], not from Mr. Sabra’s separate injuries.” (Doc. 29 at 10.) 1 organizational standing is present where an organization is not simply going about their 2 business as usual, but where the organization “had altered their resource allocation to 3 combat the challenged practices.” Am. Diabetes Ass’n, 938 F.3d at 1154. Further, in 4 Havens Realty, the Supreme Court found organizational standing after determining that the 5 organization had established a “‘concerted and demonstrable injury to [its] activities.’” Id. 6 (citing Havens Realty, 455 U.S. at 379, 102 S.Ct. 1114). 7 “[CAIR-AZ] is an Arizona-based 501(c)(3) non-profit organization committed to 8 advocacy and protecting the civil rights of American Muslims while promoting justice.” 9 (Doc. 1 ¶ 2.) “To remedy the damage done by Damask, CAIR-AZ has had to divert their 10 resources to create a campaign correcting the Islamophobic information. CAIR-AZ has 11 contracted with a religious scholar to create materials for this campaign. (Doc. 1 ¶ 63.)” 12 CAIR-AZ has not stated how hiring a religious scholar to create materials to advocate 13 against Islamophobic information is anything out of the realm of the normal advocacy that 14 they do. 15 Here, CAIR-AZ, unlike the organization in Havens, has not established a concrete 16 and demonstrable injury that would allow them to have standing against the Defendants. 17 CAIR-AZ has not effectively shown that it would have suffered an injury if it had not 18 diverted resources to counteract Dr. Damask’s allegedly “Islamophobic” teachings. 19 Instead, the module of Dr. Damask’s course that contained the materials and quiz at issue 20 are akin to a mere social setback for CAIR-AZ’s abstract social interest of advocacy and 21 protecting the civil rights of American Muslims while promoting justice. Although the 22 Complaint alleges that CAIR-AZ created a campaign to combat the misinformation and 23 contracted with a religious scholar to create material for the campaign (Doc. 1 ¶ 63.), the 24 Plaintiffs do not allege that creating material to correct Islamophobic information is not a 25 normal function of their advocacy and not “business as usual.” See Amer. Diabetes Ass’n, 26 938 F.3d at 1154. The Complaint also fails to specify from which source CAIR-AZ 27 diverted resources to create the campaign. Thus, the Court finds that CAIR-AZ does not 28 allege a concrete and demonstrable injury and has not effectively shown a diversion of 1 resources that is not a normal part of the organization’s activities. Thus, CAIR-AZ lacks 2 organizational standing under Article III to bring claims against the Defendants, and their 3 claims must be dismissed pursuant to Rule 12(b)(1). 4 B. Failure to State a Claim Under Rule 12(b)(6) 5 Mr. Sabra has standing so the Court addresses Defendants’ alternative argument that 6 the complaint alleges no First Amendment claim as a matter of law and must be dismissed. 7 (Doc. 25 at 2, 12-17.) Defendants also argue that even if it adequately alleges these claims, 8 no claim can be brought against Dr. Damask in his individual capacity under the doctrine 9 of qualified immunity. (Id. at 2, 17-19.) Plaintiffs disagree, arguing that the complaint 10 plausibly alleges First Amendment claims, (Doc. 29 at 12-20), and that clearly established 11 law prohibited Dr. Damask’s allegedly unconstitutional instruction. (Id. at 20-22). The 12 Court addresses each claim in turn before Dr. Damask’s claim to qualified immunity. 13 i. Establishment Clause 14 “The Religion Clauses of the First Amendment provide that ‘Congress shall make 15 no law respecting an establishment of religion, or prohibiting the free exercise thereof.’” 16 Espinoza v. Montana Dept. of Rev., 140 S.Ct. 2246, 2254 (June 30, 2020). This includes 17 not only government approval of religion, but its disapproval of or hostility toward religion. 18 American Family Association, Inc. v. City & Cty. of San Francisco, 277 F.3d 1114, 1121 19 (9th Cir. 2002); C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 20 (9th Cir. 2011). 21 Courts are directed to apply the “Lemon test” in cases challenging government 22 conduct under the Establishment Clause. Id. at 1121. Government action regarding religion 23 only satisfies the Establishment Clause if it (1) has a secular purpose; (2) does not have the 24 principle or primary effect of advancing or inhibiting religion; and (3) does not foster 25 excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). 26 Plaintiffs argue that the challenged module fails under the second prong of the 27 Lemon test. “Under the second prong of the Lemon test, [the Court] must consider whether 28 the government action has the principal or primary effect of advancing or inhibiting 1 religion.” Am. Family, 277 F.3d at 1122 . When making this determination, courts decide 2 whether it would be “objectively reasonable for the government action to be construed as 3 sending primarily a message of either endorsement or disapproval of religion.” Vernon v. 4 City of L.A., 27 F.3d, 1385, 1398 (9th Cir. 1994); Am. Family, 277 F.3d at 1122 (“A 5 reasonable, informed and objective observer would not the view the primary effect of this 6 resolution as inhibition of religion.”). The analysis is whether the government action 7 “‘primarily’ disapproves” of religious beliefs notwithstanding the fact that one may infer 8 possible government disapproval of religious beliefs. Vernon, 27 F.3d at 1398. Under this 9 objective standard, even where the government practice reflects “some disapproval” of 10 religion, this alone is not enough to run afoul of the Establishment Clause. California 11 Parents for Equalization of Educ. Mat. v. Torlakson, 370 F.Supp.3d 1057, 1079 (N.D. Cal. 12 2019). “Courts have long emphasized the importance of academic freedom in deciding the 13 appropriate curriculum for the classroom.” Smith v. Arizona, No. CV 11-1437-PHX-JAT, 14 2012 WL 3108818, at *7 (D. Ariz. July 31, 2012). 15 Examining the course as a whole, a reasonable, objective observer would conclude 16 that the teaching’s primary purpose was not the inhibition of religion. The offending 17 component was only a part of one-sixth of the course and taught in the context of explaining 18 terrorism. One aspect of terrorism is Islamic terrorism. Only in picking select quotes from 19 the course can one describe the module as anti-Islam. Dr. Damask also quotes Peter Bergen 20 for the view that the terrorist threat comes from radical terror groups that represent a 21 “twisted” variant of Islam as a whole.4 Thus, the Court finds that the primary effect of Dr. 22 Damask’s course is not the inhibition of the practice of Islam. Therefore, the Plaintiffs’ 23 Establishment Clause claims must be dismissed pursuant to Rule 12(b)(6). 24

25 4 Further, as Plaintiff’s counsel misstated in oral argument, Question 19 of Dr. Damask’s 26 quiz on terrorism states: “Walid Phares notes that although ‘gullible’ Westerners are taught that jihad can have two meanings, people in the Arabic world understand that its 27 overwhelmingly obvious meaning is______.” (Doc. 1, Ex. 3). This question merely asks 28 students to identify the opinion of Walid Phares regarding Islam, not to adopt his position on Islam. 1 ii. Free Exercise Clause 2 “The Free Exercise Clause, which applies to the States under the Fourteenth 3 Amendment, ‘protects religious observers against unequal treatment’ and against ‘laws that 4 impose special disabilities on the basis of religious status.’” Espinoza, 2020 WL 3518364, 5 at *5 (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012, 2021 6 (2017)). In order to demonstrate a violation of the Free Exercise Clause, “a litigant must 7 show that challenged state action has a coercive effect that operates against the litigant’s 8 practice of his or her religion.” Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1533 9 (9th Cir. 1985). Put another way, the challenged government conduct must substantially 10 burden a religious practice. Am. Family, 277 F.3d at 1123. The factors to consider in a Free 11 Exercise challenge are: “(1) the extent of the burden upon the exercise of religion, (2) the 12 existence of a compelling state interest justifying that burden, and (3) the extent to which 13 accommodation of the complainant would impede the state's objectives. Id. (citing 14 Callahan v. Woods, 736 F.2d 1269, 1273 (9th Cir. 1984)). 15 Curriculum that merely conflicts with a student’s religious beliefs does not violate 16 the Free Exercise Clause. Parker v. Hurley, 514 F.3d 87, 106 (1st Cir. 2008) (requirement 17 that public school students to read a book featuring gay couples did not violate 18 constitutional rights of Christian parents or children); California Parents for Equalization 19 of Educ. Materials v. Torlakson, 267 F. Supp.3d 1218, 1225-27 (N.D. Cal. 2017) (ruling 20 that requiring students to learn class material that the plaintiffs viewed as “derogatory 21 towards Hinduism” did not violate the Free Exercise Clause). “‘[D]istinctions must be 22 drawn between those governmental actions that actually interfere with the exercise of 23 religion, and those that merely require or result in exposure to attitudes and outlooks at 24 odds with perspective prompted by religion.’” Torlakson, 267 F.Supp.3d at 1226-27 25 (quoting Grove, 753 F.2d at 1543). Government action that merely offends religious beliefs 26 do not violate the Free Exercise Clause, “‘actual burden on the profession or exercise of 27 religion is required.’” Id. at 1227 (quoting Groves, 753 F.2d at 1543). 28 Here, Mr. Sabra alleges that he was forced to choose between denouncing his 1 religion by selecting the “correct” answer or receiving a lower grade. That is simply not 2 correct. As Defendants point out, Mr. Sabra was not required to adopt the views expressed 3 by Dr. Damask or the authors Dr. Damask cited to in his course, but only to demonstrate 4 an understanding of the material taught. Dr. Damask’s course did not inhibit Mr. Sabra’s 5 personal worship in any way. Instead, Mr. Sabra was simply exposed to “attitudes and 6 outlooks at odds” with his own religious perspective. See Torlakson, 267 F.Supp.3d at 7 1226-27. Therefore, as a matter of law, the Court finds that the Plaintiff’s allegations do 8 not amount to a violation of the Free Exercise Clause by the Defendants, and these claims 9 must be dismissed pursuant to Rule 12(b)(6). 10 iii. Dr. Damask’s Qualified Immunity 11 Government officials are entitled to qualified immunity from civil damages unless 12 their conduct violates “clearly established statutory or constitutional rights of which a 13 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 14 Officials are not entitled to qualified immunity if “(1) they violated a federal statutory or 15 constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at 16 the time.’” District of Columbia v. Wesby, — U.S. —, 138 S. Ct. 577, 589 (2018) (quoting 17 Reichle v. Howards, 566 U.S. 658, 664, (2012)). Courts may address either prong first 18 depending on the circumstances in the case. Pearson v. Callahan, 555 U.S. 223, 230–32, 19 235-36 (2009). 20 In determining whether a constitutional right was clearly established at the time of 21 the alleged violation, “a case directly on point” is not required, “but existing precedent 22 must have placed the statutory or constitutional question beyond debate.” Mullenix v. Luna, 23 136 S. Ct. 305, 308 (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)). Both 24 Defendants and Plaintiffs have cited to numerous cases surrounding what constitutes an 25 Establishment Clause violation in a college classroom. An analysis of those cases 26 demonstrates that existing precedent is anything but clear. This is especially true in the 27 context of teaching topics that surround and /or incorporate religion. See, e.g., C.F. ex rel. 28 Farnan, 654 F.3d at 986 (finding that the law on Establishment Clause violations by || teachers in the classroom “was not clearly established at the time of the events in || question”). See also Smith v. Arizona, 11-1437-PHX-JAT, 2012 WL 3108818, at *7 3|| (refusing to conclude that a community college professor would have been aware that conduct was in violation of “clearly established constitutional right.”’). 5 The Court cannot conclude that Dr. Damask would have been on notice that his 6 || actions might be unconstitutional and therefore finds that he would be entitled to qualified || immunity if Plaintiff's claims had not been dismissed on other grounds. 8 IV.CONCLUSION 9 For the reasons discussed above, 10 IT IS ORDERED granting Defendants’ Motion to Dismiss (Doc. 25). 11 IT IS FURTHER ORDERED directing the Clerk of the Court to terminate this 12]| case. 13 Dated this 18th day of August, 2020. 14 15 — 16 S BS ee Gnvted States District ude. 18 19 20 21 22 23 24 25 26 27 28

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