A professor and the Arizona community college system he teaches for won an important victory for academic freedom this past week.
Professor Nicholas Damask was teaching a course on world politics that included some material about Islamic terrorism. He assigned a text that discussed Islamic terrorism and he asked a question about the text on a quiz. The quiz asked, among other things, whether the primary meaning of jihad is understood in the Arab world to be violent warfare or just a spiritual struggle. A Muslim student was offended by the text and the quiz and ran straight to CAIR [the Council on American-Islamic Relations]. CAIR filed suit in federal court on the student’s behalf.
A federal judge rejected all of the plaintiffs’ arguments and dismissed the case. The judge’s reasoning is instructive.
The student’s first argument was that Professor Damask’s actions as the government violated the Establishment Clause of the First Amendment to the U.S. Constitution by expressing disapproval of a religion. The court rejected this argument, saying that some disapproval is not enough under long-standing case law to make out a constitutional violation; it must be the government’s primary purpose to inhibit the practice of a religion, in this case Islam, to violate the Establishment Clause. But, here, the primary purpose was to teach a course in world politics. The material on Islamic terrorism was only one module out of six, and it was presented in the context of explaining terrorism, not criticizing religion. Moreover, the plaintiffs had cherry-picked the material in presenting their case; the Professor had also included a quote from another scholar to the effect that only Muslim extremist groups interpret Islam to condone terrorism.
The student’s second argument was that the government’s actions violated the First Amendment Free Exercise Clause by forcing him to denounce his religion in choosing the correct answer about the primary meaning of jihad on the quiz. The court rejected this argument, also, saying the requisite coercive effect was missing. The quiz merely asked the student to demonstrate his understanding of the course material, not to adopt any particular viewpoint. The court cited a prior case for the proposition that course material that merely conflicts with a student’s religious beliefs does not, by virtue of that fact alone, violate the Free Exercise Clause. The prior case rejected the argument of Christian students that the practice of their religion had been burdened by having to read about gay couples for a class. There’s a difference between merely exposing students to views contrary to their beliefs, on the one hand, and actually interfering with the practice of their religion on the other, the court said. Mere exposure to contrary attitudes was deemed not to interfere with the Christians’ beliefs in the prior case or with the Muslim’s student’s beliefs in the Arizona case.
That’s it for the court’s First Amendment analysis. There are three other issues worth mentioning.
First, the judge tossed CAIR out of court on separate grounds, ruling CAIR lacked standing to be there. It could not show any injury to its organization that could get it through the courthouse door. Its claim that it had to divert resources to deal with this case was unproven, and the fact that it had to hire a religious scholar to craft arguments about Islamophobia for this case was nothing beyond the kind of ordinary advocacy CAIR undertakes every day. No injury, no standing.
Second, the court found that prior cases are in disarray so that Professor Damask was not on notice he was possibly running afoul of the Constitution. There were no prior cases clearly establishing beyond debate that what he was doing violated the Muslim’s student’s constitutional rights. Without such notice, the court said that Professor Damask would have had qualified immunity even if the plaintiffs had been able to make their constitutional arguments stick.
Finally, let’s go back to the part of the court’s opinion about government action that merely offends religious beliefs not violating the Free Exercise Clause. This is important for what it implies for free speech regarding Islam. The Muslim student in this case was essentially saying he was offended by the contrary material. That’s the crux of the argument Muslims make in wanting to shut down all criticism of Islam. They want to stop all speech they find offensive in this regard, even if the content of the speech is true. Under sharia law, libel is anything that insults Islam or causes any Muslims to take offense about their religious beliefs. Truth is not a defense to libel in sharia law, as it is under American law. Muslims around the world feel perfectly justified in rioting in ‘Days of Rage’ if they are offended by what a speaker said, even if what the speaker said was true. They are essentially saying we should all keep our thoughts to ourselves so Muslims don’t go on a rampage. We call that the ‘heckler’s veto under American concepts of free speech and it’s unacceptable under our constitutional jurisprudence. Unfortunately, European speech codes have moved in the direction of shutting down speech that offends Muslims for any reason. Let’s hope that European speech codes never come to America. I’m glad the judge in the Arizona case came down on the side of saying that, even if Muslims are offended by what is said about their religion, it does not mean that the Constitution has been violated or that Muslims get to shut down all debate about Islam in America.