PASADENA – A panel of three federal appellate judges Friday probed whether a Mission Viejo high school teacher who violated his student’s First Amendment rights should be held financially liable for his actions, even as the judges reconsidered the merits of the case itself.

During a 45-minute morning hearing, judges from the 9th U.S. Circuit Court of Appeals in Pasadena grilled the two parties about whether Capistrano Valley High School history teacher James Corbett should be forced to pay attorney fees and damages, and whether he could have reasonably known he was being hostile toward religion in the classroom, as alleged.

“I’d like to know, one, if there is any case in which a teacher has been found to violate the establishment clause in a situation like this … and if not, what is the analogous situation that gave clear notice?” 9th U.S. Circuit Court Judge Mark Wolf said. “What case before 2007 put him on clear notice that what he did was impermissible under the First Amendment?”

A Santa Ana federal judge ruled in 2009 that Corbett violated the First Amendment’s establishment clause when he referred to Creationism as “religious, superstitious nonsense” during a classroom lecture.

But the judge – noting Corbett would not have necessarily known he was violating student Chad Farnan’s constitutional rights – also barred the teacher from having to pay attorney fees and damages under a “qualified immunity” defense. Qualified immunity is a form of federal protection for government employees who have violated an individual’s constitutional rights.

Both sides appealed the ruling to the 9th Circuit. Corbett is seeking to be vindicated; Farnan is seeking a stronger ruling against Corbett, and for Corbett’s qualified immunity to be tossed out.

The 9th Circuit court, which did not make any decisions Friday, has wide discretion with this case. It can rule on any or all of the arguments presented, declare portions to be moot, and/or send the case back to the trial court.

Corbett remains in his teaching position; Farnan, who brought the lawsuit as a sophomore at Capistrano Valley High in December 2007, is now a freshman at Pepperdine University in Malibu.

Farnan’s attorney, Jennifer Monk, argued Friday that the trial court judge appeared to have abused his discretion in accepting Corbett’s qualified immunity defense, emphasizing Corbett did not raise the qualified immunity defense until after the federal judge ruled against him on the Creationism comment.

The three-judge panel fired back, demanding to know why it mattered.

“What difference would it have made in terms of litigation activity?” said Presiding Judge Raymond Fisher, although he then added: “I’m not convinced qualified immunity could not have been addressed earlier on.”

“Maybe a tactical decision was made here,” Wolf said. “They spent a lot of time and money litigating the case. Once he loses, and faces the prospect of having to pay for it, he’s not feeling as enthusiastic.”

The three judges on Friday also scrutinized the merits of the trial court’s ruling itself. U.S. District Court Judge James Selna ruled in May 2009 that while Corbett’s Creationism comment violated the law, more than 20 other tape-recorded classroom comments cited by Farnan’s attorneys passed legal muster.

The judges returned to a handful of these statements, including: “When you pray for divine intervention, you’re hoping that the spaghetti monster will help you get what you want.”

Corbett’s attorney, Erwin Chemerinsky, dean of UC Irvine’s law school, told the judges that all of the statements had been taken out of context, and that all had legitimate teaching purposes that did not promote hostility toward religion.

Wolf appeared skeptical.

“That’s not the way he expressed it,” Wolf said. “I may agree that certain wide scope may be given to teachers, but I doubt that you’re arguing it can be unlimited. … There should be at least some self-restraint.”

As the lawyers presented their arguments in the 20 minutes allowed, the judges repeatedly interrupted, asking probing questions and appearing skeptical and critical of arguments from both sides.

Wolf even suggested that perhaps the entire case should have come before a jury, instead of a judge. (The matter did not come before a jury because the case involved interpreting federal case law, and no facts were in dispute.)

The judges on Friday gave no indication of how they might rule or when. Both lawyers said after the hearing they felt the judges had been fair and thoughtful.

“We’re thrilled the judges seemed to understand the concerns with all of Dr. Corbett’s statements,” Monk said. “We certainly hope this court will broaden the lower court’s ruling.”

Added Chemerinsky: “They were properly concerned about whether any public school teacher should be held liable in a case like this, and where that line should be drawn.”

Contact the writer: 949-454-7394 or smartindale@ocregister.com