In 2007, a teacher in California was sued over disparaging comments he made about (among other things) the lack of scientific reasoning behind creationism, a religiously motivated attempt to interpret biological data in light of the biblical narrative. Today, the Ninth Circuit's Court of Appeals has ended the suit, leaving the teacher with nothing but his legal bills. But the decision isn't exactly the victory for science education it's being reported as. The comments took place in a history class, weren't the subject of the appeal, and the teacher was cleared primarily because there isn't any precedent available—a situation that this decision will leave in place.

The background of the case is pretty straightforward. Dr. James Corbett was the only Advanced Placement European history teacher in California's Capistrano Valley High School. The course requirements dictated that he had to discuss how religion influenced European society, including its declining role in the public square and its somewhat awkward interactions with the scientific revolution. But Corbett had also sent a letter home to his students, indicating that "Discussion will be quite provocative" and "My goal is to have you go home with something that will provoke discussion with your parents."

And provocative they were. In referring to the opposition of serfs to their own emancipation, Corbett apparently said, "[W]hen you put on your Jesus glasses, you can’t see the truth," as part of a longer discussion that focused on the religious nature of some of the reforms. Later, in discussing the decline in biblical literalism, Corbett said, "The people who want to make the argument that God did it, there is as much evidence that God did it as there is that there is a giant spaghetti monster living behind the moon who did it." (This was followed by a helpful footnote stating, "'spaghetti monster' is a term coined by evolution proponents who criticized the logic of teaching “creation science” in public schools.") These don't appear to be indications of a hostility towards religion—the decision notes that Corbett prays regularly and attends services—but they were apparently enough to cause one student to drop out of class and then sue him and his school district.

These would seem to be fertile grounds for the lawsuit, which alleged hostility towards religion in the classroom. But, by the time the case had reached the appeals stage, all of them had been thrown out. A previous Supreme Court decision had stated, "the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma." Corbett's statements, although potentially uncomfortable for some students, were deemed appropriate within the context of a college-level discussion of the role of religion: "We have no doubt that the freedom to have a frank discussion about the role of religion in history is an integral part of any advanced history course," the latest decision notes.

What remained an issue on appeal was a single issue related to Corbett's past run-in with the law (not something you'd necessarily expect to hear about an AP history teacher). But, roughly 20 years ago, Corbett was involved in a conflict with a biology teacher who was encouraging students to learn about creationism after class hours. At the time, Corbett was helping supervise the school newspaper. "My editor wrote an editorial in which she inferred [sic] that [Peloza] was not teaching science in his biology classroom," he told his students. "Instead, he was teaching religion." The biology teacher sued him as part of a larger action against his fellow faculty. As part of his discussion of the case, Corbett said, "John [the biology teacher] wanted to talk about creation as a science and all that stuff, but you get involved in that argument, you just lose because it’s just nonsense."

That, which appears to be the least likely of the quoted statements to offend, was all that was left of the case.

The decision on this matter came down to something that's largely unrelated to the content of what Corbett said. Instead, it focused on what's called "qualified immunity," which protects public employees from suits unless they violate clearly established laws or precedent. As the Appeals Court's decision put it, "We ask two questions: (1) whether, taking the facts in the light most favorable to the nonmoving party, the government official’s conduct violated a constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct."

The court then concludes that the right hasn't been clearly established. "There has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion," the court concludes. The student's lawyers had cited several Establishment Clause cases, but all of those focused on teachers who had promoted religion. As a result, Corbett had no reason to think his actions could be violating his students' constitutional rights, and the court has thrown the suit out.

What the court has specifically declined to do is evaluate whether there are constitutional issues here; because it can answer the second of its two questions in the negative, it isn't even bothering to look at the first. In fact, the lower court had examined the statements on constitutional grounds, and the Appeals Court has vacated that decision entirely. In short, by deciding that there was no precedent, the court has concluded that there is no reason it should now set one.

This leaves establishment clause law in a somewhat odd, asymmetric state. A number of significant precedents have concluded that teachers are not allowed to promote religion to their students, especially in the guise of science classes. So there is little danger that this decision will open up science classes to various spurious attacks on evolution. But there is no precedent for when a teacher might overstep the bounds of discussion and criticize religious thought.