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 ….