Scary Ninth Circuit opinion [NOT]

[I was wrong. I’ve edited to indicate my errors.]

The National Center for Science Education is celebrating the vindication of James Corbett, a California high-school teacher who characterized creationism as “[religious,] superstitious nonsense.” A federal district court found that he had engaged in “improper disapproval of religion in violation of the Establishment Clause.” But a three-judge panel of the Ninth Circuit Court of Appeals has reversed [vacated this part of] the decision.

[Mindful that there has never been any prior reported case holding that a teacher violated the Constitution under comparable circumstances, we affirm the district court’s conclusion that the teacher is entitled to qualified immunity. Because it is readily apparent that the law was not clearly established at the time of the events in question, and because we may resolve the appeal on that basis alone, we decline to pass upon the constitutionality of the teacher’s challenged statements.]

So what’s scary about this? The panel has taken language from the creationist legislation of several states, and inserted it into federal case law:

But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

This is a very bad turn of affairs. [Glenn Branch, Deputy Director of the NCSE, gently explained to me that there’s similar language in Edwards v. Aguillard (1987), and that the creationists have been trying to exploit it.] However, the offended student reportedly is appealing the decision. If the full court accepts amicus briefs, then I would recommend that the NCSE and/or some legal organization submit a brief suggesting more appropriate language. [What I had in mind here is that critical thinking is more heavily constrained in science than in all other disciplines, with the exception of math. However, the courts ruled on Corbett’s behavior in a college-level history class. There’s no reason for them to comment on science education, or for any science organization to get involved.]