Free Speech

Court Rejects Constitutional Challenge to Critical Teaching About Islamic Terrorism

The case was filed against the Maricopa County Community College District, over Prof. Nicholas Damask's World Politics class.

|The Volokh Conspiracy |

I think this is generally quite right, and indeed an important victory for academic freedom; professors, including those at public colleges, have to be able to speak freely about religious belief systems (whether Islam, Christianity, Judaism, Hinduism, Buddhism, or anything else), no less than other belief systems.

From Sabra v. Maricopa County Comm. College Dist., decided this morning by Judge Susan M. Brnovich (D. Ariz.):

Arising out of an Islamic Terrorism module in an online World Politics course taught by Dr. Nicholas Damask, this case tests the limits of the First Amendment's Religion Clauses. Mohamed Sabra enrolled in this spring semester course at Scottsdale Community College ("SCC") in 2020. Its syllabus describes it as one that will provide an "[i]ntroduction to the principles and issues relating to the study of international relations. Evaluation of the political, economic, national, and transnational rationale for international interactions."

The course is organized into six modules, each containing multiple components to explore various topics concerning world politics. The Islamic Terrorism module challenged by Mr. Sabra and the Council on American-Islamic Relations of Arizona … had three components: a PowerPoint presentation, excerpts from Future Jihad, and a quiz. The PowerPoint presentation explored world politics through three sub-topics: (1) "Defining Terrorism"; (2) "Islamic Terrorism: Definition"; and (3) "Islamic Terrorism: Analysis." The second component required students to read excerpts from Future Jihad, a book published by Walid Phares, and the quiz evaluated students on their comprehension of course material with twenty-five multiple choice questions.

Plaintiffs take issue with Dr. Damask's instruction throughout these various Islamic Terrorism module components, alleging that his teachings violate the Establishment Clause and Free Exercise Clause …. Plaintiffs allege his instruction unconstitutionally "conclude[es] that Islam 'mandates' terrorism and the killing of Non-Muslims, and that this is the only interpretation of religious texts, but without any disclaimer to inform students that this is one-perspective and that Islam itself does not condone terrorism." They further allege that Dr. Damask "is not teaching that only some extremists espouse these beliefs, but rather that literally, Islam itself teaches the mandates of terrorism."

And "[t]he only objectively reasonable construction of [Dr.] Damask's actions," Plaintiffs allege, "is that his primary message is the disapproval of Islam." As it specifically concerns the quiz, Plaintiffs allege "[it] forced [Mr.] Sabra to agree to [Dr. Damask's] radical interpretation of Islam." And when Mr. Sabra refused to answer questions in accordance with what he learned in the course, his answers were marked wrong, and his course grade was negatively impacted….

The court rejected Sabra's Establishment Clause challenge (applying the "endorsement" test set forth by Ninth Circuit precedent, though the Supreme Court seems to have retreated from that test in American Legion v. American Humanist Ass'n):

"The Religion Clauses of the First Amendment provide that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'" This includes not only government approval of religion, but its disapproval of or hostility toward religion [citing Ninth Circuit cases].

Courts are directed to apply the "Lemon test" in cases challenging government conduct under the Establishment Clause. Government action regarding religion only satisfies the Establishment Clause if it (1) has a secular purpose; (2) does not have the principle or primary effect of advancing or inhibiting religion; and (3) does not foster excessive entanglement with religion. Lemon v. Kurtzman (1971).

Plaintiffs argue that the challenged module fails under the second prong of the Lemon test. "Under the second prong of the Lemon test, [the Court] must consider whether the government action has the principal or primary effect of advancing or inhibiting religion." When making this determination, courts decide whether it would be "objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion." The analysis is whether the government action "'primarily' disapproves" of religious beliefs notwithstanding the fact that one may infer possible government disapproval of religious beliefs.

Under this objective standard, even where the government practice reflects "some disapproval" of religion, this alone is not enough to run afoul of the Establishment Clause. "Courts have long emphasized the importance of academic freedom in deciding the appropriate curriculum for the classroom."

Examining the course as a whole, a reasonable, objective observer would conclude that the teaching's primary purpose was not the inhibition of religion. The offending component was only a part of one-sixth of the course and taught in the context of explaining terrorism. One aspect of terrorism is Islamic terrorism. Only in picking select quotes from the course can one describe the module as anti-Islam. Dr. Damask also quotes Peter Bergen for the view that the terrorist threat comes from radical terror groups that represent a "twisted" variant of Islam as a whole.

{Further, as Plaintiff's counsel misstated in oral argument, Question 19 of Dr. Damask's 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 overwhelmingly obvious meaning is ___." This question merely asks students to identify the opinion of Walid Phares regarding Islam, not to adopt his position on Islam.} Thus, the Court finds that the primary effect of Dr. Damask's course is not the inhibition of the practice of Islam….

And the Court rejected Sabra's Free Exercise Clause challenge:

"The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, 'protects religious observers against unequal treatment' and against 'laws that impose special disabilities on the basis of religious status.'" … Curriculum that merely conflicts with a student's religious beliefs does not violate the Free Exercise Clause. Parker v. Hurley (1st Cir. 2008) (requirement that public school students to read a book featuring gay couples did not violate constitutional rights of Christian parents or children); California Parents for Equalization of Educ. Materials v. Torlakson (N.D. Cal. 2017) (ruling that requiring students to learn class material that the plaintiffs viewed as "derogatory towards Hinduism" did not violate the Free Exercise Clause)….

Here, Mr. Sabra alleges that he was forced to choose between denouncing his religion by selecting the "correct" answer or receiving a lower grade. That is simply not correct. As Defendants point out, Mr. Sabra was not required to adopt the views expressed by Dr. Damask or the authors Dr. Damask cited to in his course, but only to demonstrate an understanding of the material taught. Dr. Damask's course did not inhibit Mr. Sabra's personal worship in any way. Instead, Mr. Sabra was simply exposed to "attitudes and outlooks at odds" with his own religious perspective. Therefore, as a matter of law, the Court finds that the Plaintiff's allegations do not amount to a violation of the Free Exercise Clause ….

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  1. So teaching that all Muslims are terrorists or bad Muslims might be an issue.
    But teaching a book that says all Muslims are terrorists is OK because you’re not teaching it as fact?

    I do like the return of Lemon. Reading it in high school is what got me interested in the law.

    1. Sorry, I should have put ‘exclusively’ in that second sentence.

      I concur that as a whole, this course looks fine. But want to see what the boundaries are.

      1. I’m not sure why any of this should be an establishment clause issue in the first place. Teaching about religion is not the same thing as teaching religion, and at any event, even the “teaching religion” caselaw is really about grade and high schools, where you can argue there’s significantly more of a coercive effect. This is an elective course at a college.

        A college professor has the right to trash Islam. A college professor also has the right to teach that Islam is great. Either way, I don’t see a constitutional problem.

        1. I don’t think that a school comurriculum has any business demanding regurgitation on “Christianity says,” “Judaism says, “Islam says,” etc. They have accept “Professor x says in his book that Islam says” as a valid answer for full credit. They can’t demand that the student word the regurgitation to say that Professor X’s opinion is true.

          1. The difference between demanding the student say “Islam says” and accepting “Professor X says Islam says” as a valid answer may seem subtle, but it’s important. Requiring the first and not accepting the second violates the First Amendment. Accepting the second permits a public educational institution to teach about religion consistent with the First Amendment. And it gives the educational needs of the institution everything they can legitimately ask for.

            At least so far as this student’s complaint is concerned, at any rate.

        2. I don’t see why its a religion clause issue rather than a free speech issue, which would also be a loser, but would be a better losing theory.

      2. Am I interpreting your edit correctly to mean “But teaching exclusively from a single book that says…”?

        While that would certainly be closer to the line, I don’t think even that crosses it since this was an elective with a defined scope. Presumably, the school offers other electives with different scopes of study. You are not, for example, endorsing Marxism if you teach a semester long course solely about Marx while simultaneously offering a parallel course solely about Adam Smith. There is an academic obligation to balance but there is no obligation to require the balance within each day’s lecture or even within each semester’s course.

        1. Indeed – that’s the hypothetical.

          I see what may be a bit of slight of hand between professor and institution, but I think I dig what you’re laying down.

        2. I took a semester long course on Marx. Marxism in practice is an evil thing. Looking at Marx as a economic theorist and philosopher was interesting and helped me understand why it was so.

  2. I was assured by G. W. Bush repeatedly that Islam is a religion of peace.

    1. Seems similar to most organized superstition — helps some people, hurts others, promotes some good, causes some harm . . . roughly a wash, in general, from a charitable perspective.

      1. From a historical perspective, Islamic jihad has killed more people than any other religion (numbers wise) than any other, and untold vast sums of treasure are spent every year dealing with the consequences of Islamic terrorism. I wouldn’t say it was a wash.

        1. The “wash” I described involved the entirety of religion, not any particular flavor of religion or any comparison among religions.

          With respect to your assertion concerning the historical magnitude of Islam-relating killing, I would wish to see reliable assessments of the casualties of other superstition-based atrocities (the Crusades, for example) before acknowledging that Islam should wear that particular crown.

            1. “Mike Konrad” and the American Thinker?

              Your ‘American thinking’ is the reason conservatives are casualties of the culture war, vanquished by better Americans.

              1. A properly sourced, fairly succinct little essay that is fundamentally right in its assertion about how Islam kills. It’s not the only piece I’ve seen on it, but you can follow the links to the source material, and then to the linked sources sources.

                You’re more than welcome do “do the work” yourself, but I think you’ll find that facts are stubborn things.

                1. I read enough to see the second reference to Daniel Pipes, which was plenty to rebut your “properly sourced” description.

                  American society rejects your bigotry, mad_kalak. I’m with American society.

        2. Assuming that Islam has killed more people than any other religion, that’s probably a function of which religion came along at which time and place. I don’t think there’s any doubt that if the Medici popes had had the technological ability to hijack airliners and fly them into skyscrapers, they’d have had no hesitation in doing so. Don’t forget that many thousands of people lost their lives to settle the question that the Holy Spirit proceeds from both the Father and the Son.

          I would agree that at this particular time and place in history, Islam is more dangerous than any other religion, but that’s at this time and place. The Aztecs, the Incas, and the pagans of Northern Europe would all, I’m sure, have a different perspective. And if it ever has a Renaissance, it may actually become a religion of peace.

          1. Yes, the Aztecs, only only conquered with the help of every tribe but one they had subjugated in their empire, surely would agree. heh. The Aztecs lost their empire because they were brutal overlords and everybody else had enough of it and helped the Spaniards.

            Note, anyway, I was talking about pure, raw numbers. %-wise, the Mongols killed 10% of the world’s population, and communistic athiesm is right up there too.

            However, you see, the Medici popes had the same methods available to them that Islam did, and yet, it was the Mohammedans that racked up the numbers.

            Oh, and suicide is a mortal sin for Catholics…you go to hell for doing so, not getting 72 virgins. So again, I’m REALLY sure you’re wrong on the idea that Renaissance Catholics would make suicide bombers. Even Guy Fawkes, a Catholic terrorist, didn’t intend to blow HIMSELF up too.

            1. I didn’t say the Aztecs were nice people, but then a lot of the people Islam has killed over the years were bad people too. I wasn’t aware that genocide was excusable if the people you’re killing are bad people.

              The point is, though, that as Islam and Christianity claimed land by conquest, they both offered the same choices: convert, be killed, or leave. There isn’t a dimes worth of difference between what the Muslims did in Arabia and what the Christians did in South America. And even if you’re right that Islam has a higher body count, by that standard Charles Manson is a better person than Ted Bundy.

              One last thing: as to communistic atheism, you do realize that a Russia run by libertarian atheists would have looked a whole lot different, right? So atheism has nothing to do with it. The relevant factor is that Stalin was a communist, not that he was an atheist.

        3. “Islamic jihad has killed more people than any other religion” — more than the Crusades?

  3. The other aspect is student academic freedom — exam questions in particular.

    1915 AAUP statement
    “…remember that his business is not to provide his students with ready-made conclusions, but to train them to think for themselves, and to provide them access to those materials which they need if they are to think intelligently.”

  4. Bigots have rights, too.

    1. Yes, Rev, you do.

    2. And AK has the right to be stupid. He practices that every time he posts here.

  5. Judge Brnovich was appointed by President Trump.
    Well done both.

  6. I don’t see why the fact that the parts of concern were only a small part of the course has anything to do with it. According to the complaint, the course required him to make statements about his religion that contradicted his religious beliefs and graded him wrong if he didn’t.

    What distinguishes this from the Pledge Case? There, the pledge was also only small part of the curriculum, the entire course taken as a whole dodn’t teach loyalty as such. What permitted the plaintiff in that case to take the pledge out of context and focus on it, but not this plaintiff?

    1. To clarify, the issue is not at all what the professor said. It’s what the professor demanded that the STUDENT say. That’s what raises the constitutional problem and makes this case like the Pledge case.

      If the professor had accepted “Professor X says that Islam says” as a valid answer rather than demanding the student say “Islam says,” there would have been no problem.

      1. But, as I read the above, he DID accept that:

        “Here, Mr. Sabra alleges that he was forced to choose between denouncing his religion by selecting the “correct” answer or receiving a lower grade. That is simply not correct. As Defendants point out, Mr. Sabra was not required to adopt the views expressed by Dr. Damask or the authors Dr. Damask cited to in his course, but only to demonstrate an understanding of the material taught. ”

        You seem to be taking the plaintif’s complaint as true, but the court found it to be wrong.

      2. Did you read the article? The complaint did allege that the plaintiff was required to make a personal statement of belief. The court determined that allegation to be untrue. The quiz question did not require the student to say anything about his religion or even to say what the professor said. The question required the student to correctly say what a named author in the course’s required reading said. By your own logic, there was no problem.

  7. I think a class would have to go pretty far in order for it to violate the establishment clause especially at a university.

    What would be more of an interesting question though is what if one of these classes, which might cast a religion in a hostile light, violates non-discrimination obligations? That would make an interesting intersection between the bounds of non-discrimination law, academic freedom, and free speech. I think it would take a lot of get there but would be interested in hearing someone speculate on a set of facts where a court might conclude such a course violates non-discrimination laws and is not protected by academic freedom or free speech.

    1. I’m surprised the course was permitted to be taught.

  8. In America adults are free to choose whichever religion they want to…the fact so few progressives choose to convert to Islam tells you it is an inferior religion.

    1. Which flavor of adult-onset superstition is superior, in your judgment?

      1. Do you always have to be a jerk?

        1. Dude he’s replying to is going on about Islam being an inferior religion.
          Bigotry like that deserves RAK.

          1. All religions are stupid…Islam is extremely stupid. So Obama had the choice to convert to Islam but he chose Christianity…because Islam is so dumb.

          2. So it is OK to be a jerk if you are being a jerk for the right reasons? Got it.

            Is that the way it works when it is OK to call Trump fat and stupid, but if you say anything about Harris you get cancelled?

            1. Jimmy, somehow I don’t believe you think infinite patience and civility is always the rout that’ll get things done.

              1. Have you converted to Islam yet?? If you are still an infidel then you are making a very clear statement—Islam is a stupid religion.

                1. I believe reasonable people can differ in their faith without passing judgement on one another.

                  1. Nope, by not converting to Islam you are clearly stating that Islam is a phony religion. In America adults are free to belong to any religion or no religion…I choose no religion because I think they are all phony. So convert to Islam or the message is clear—Islam is a phony religion just like Scientology or Hinduism.

                    1. Forgive me if I don’t take your understanding of the tenets of Islam as gospel.

                    2. It has nothing to do with Islam—as an American adult you are free to choose your religion. So you could tell your mother you are a Christian but secretly practice Islam if you thought Islam was the way to get to paradise.

                    3. Which superstition-laced fairy tales are not phony, Sebastian? Christian? Catholic? Jewish? Baptist? Calvinist? Mormon?

                      Is there more than one?

                    4. Here’s a head start on your research, Sebastian.

                    5. Progressives were the ones that celebrated Tlaib and Omar being elected to the House…literally the only two Muslims in the world that support gay marriage, support abortion, watch RuPaul, and believe Allah is a woman. Oh, and they support Palestine over Israel even though Palestinians oppose gay marriage and force women to have rape babies.

                2. Could be wrong, but I believe in the eyes of Muslims, one does not “convert” to Islam, they “revert” to Islam.

                  1. Because it is the one true religion. Celebrating diversity of religion is probably the dumbest thing ever. Tolerance is great…celebration is dumb.

          3. Well, to be fair most religions teach that adherents of the others will spend eternity in hell. That kinda sorta sounds worse than saying their version is “inferior.”

            1. And I’d say anyone coming in here and saying I’m going to Hell for not being his flavor of Baptist or whatever was being a bigot as well.

              That may be fine in church, but taking that talk to the streets has never been a great thing in our pluralistic country.

  9. Sounds like that case a while back where some overly-concerned dad was outraged his daughter was learning about Islam in school and tried to sue.

    To about the same success, if I recall.

    It seems that the distinction between religious instruction and instruction about religion is one that people of all religions struggle with.

  10. Is the Lemon test really what we want to use? The third point, does not promote ‘excessive entanglement’ with religion is terribly subjective. How does that work in practice? Where is the line for ‘a lot of entanglement’ versus ‘excessive entanglement’?

  11. I’m not sure I agree with footnote 4 in the opinion, where the court states that “Question 19 of Dr. Damask’s quiz … merely asks students to identify the opinion of” author Walid Phares. First of all, the verb used, “to note” (“Walid Phares notes …”) is an unusual way of introducing a statement of opinion. One does not ordinarily “note” one’s own opinions; one might “say” or “express” or “assert” an opinion, but one “notes” the facts that support the opinion. The only word in Dr. Damask’s question which is unambiguously the opinion of Walid Phares is the word “gullible”; the remainder of the sentence appears to be a recitation of the assertions of fact that Phares cites in support of his opinion, and that’s the part that students are expected to fill in. Of course it doesn’t help if the plaintiff’s counsel misstated the phrasing of the question, as the court says. But it would also be more helpful if the court had taken just a moment longer to explain how counsel misstated it. Sure, they may not have helped their client’s cause by racing past the part that sounds like opinion to get to the part they saw as objectionable; but if the problematic portion, the blank students are asked to fill in, is truly problematic (and I think reasonable people could go either way), it’s problematic regardless of the fact that it’s framed as merely reciting an author’s opinion rather than reciting matters the author claims to be facts. How counsel read the question at oral argument would only make a difference if it looked like they were trying to mislead the court or conceal the evidence. And the court doesn’t say that.

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