Appeal from the United States District Court for the Central District of California. D.C. No. CV-91-5268-DWW. David W. Williams, District Judge, Presiding. This Opinion Substituted by the Court for Withdrawn Opinion of July 25,.
Before: Betty B. Fletcher, Cecil F. Poole and David R. Thompson, Circuit Judges. Partial Concurrence and Partial Dissent by Judge Poole.
John E. Peloza is a high school biology teacher. He sued the Capistrano Unified School District and various individuals connected with the school district under 42 U.S.C. § 1983. He alleges in his complaint that the school district requires him to teach "evolutionism" and that evolutionism is a religious belief system. He alleges this requirement violates his rights under the (1) Free Speech Clause of the First Amendment; (2) Establishment Clause of the First Amendment; (3) Due Process Clause of the Fourteenth Amendment; and (4) Equal Protection Clause of the Fourteenth Amendment.*fn1
He also alleges the defendants conspired to violate these constitutional rights and attempted by harassment and intimidation to force him to teach evolutionism. He alleges they did this because they have a class-based animus against practicing Christians, a class of which he is a member, in violation of 42 U.S.C. § 1985(3).
He also alleges state law claims for violation of California's Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1 (which provides a cause of action for interference with an individual's enjoyment of rights secured by the United States or California Constitution or by federal or state law), and for intentional infliction of emotional distress.
The district court dismissed the federal claims for failure to state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). The court then dismissed the state claims for lack of jurisdiction. The court also determined that the action was frivolous. Relying on Rule 11 of the Federal Rules of Civil Procedure and 18 U.S.C. § 1988, the court ordered Peloza and his attorney to pay approximately $32,000 to the defendants for their attorney fees and costs.
Peloza appeals. We have jurisdiction under 28 U.S.C. § 1291. We affirm, except as to attorneys' fees.
THE ALLEGATIONS OF THE COMPLAINT
The following summarizes the allegations of Peloza's complaint:
Peloza is a biology teacher in a public high school, and is employed by the Capistrano Unified School District. He is being forced by the defendants (the school district, its trustees and individual teachers and others) to proselytize his students to a belief in "evolutionism" "under the guise of [its being] a valid scientific theory." Evolutionism is an historical, philosophical and religious belief system, but not a valid scientific theory. Evolutionism is one of "two world views on the subject of the origins of life and of the universe." The other is "creationism" which also is a "religious belief system." "The belief system of evolutionism is based on the assumption that life and the universe evolved randomly and by chance and with no Creator involved in the process. The world view and belief system of creationism is based on the assumption that a Creator created all life and the entire universe." Peloza does not wish "to promote either philosophy or belief system in teaching his biology class." "The general acceptance of . . . evolutionism in academic circles does not qualify it or validate it as a scientific theory." Peloza believes that the defendants seek to dismiss him due to his refusal to teach evolutionism. His first amendment rights have been abridged by interference with his right "to teach his students to differentiate between a philosophical, religious belief system on the one hand and a true scientific theory on the other."
Peloza further alleges he has been forbidden to discuss religious matters with students the entire time that he is on the school campus even if a conversation is initiated by a student and the Discussion is outside of class time.
He also alleges that the defendants have conspired to destroy and damage his professional reputation, career and position as a public school teacher. He has been reprimanded in writing for proselytizing students and teaching religion in the classroom. His inquiries as to whether he is being required to teach evolution as "fact" or "as the only valid scientific theory" have not been answered directly. He has not taught creationism in his classroom. He has been wrongly accused in the school newspaper and in the public press of teaching religion in his science class. He has been harassed by the defendant teachers and has received a formal written reprimand from defendant Thomas R. Anthony, the school principal, wrongly accusing him of proselytizing his students and teaching religion in the classroom, directing him to teach evolution as the only valid scientific theory, and forbidding him from teaching creationism as a valid scientific theory. Anthony further directed him not to discuss religion or attempt to convert students to Christianity while on campus. He has been criticized in a petition signed by faculty members for threatening litigation over the rights of faculty members to speak fully to the news media and each other.
We review do novo the grant of a Rule 12(b)(6) motion. Oscar v. University Students Co-operative Ass'n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, 121 L. Ed. 2d 581, 113 S. Ct. 655 (1992). We review the award of attorney fees for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990) (under Fed. R. Civ. P. 11); Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir. 1988) (under 42 U.S.C. § 1988).
A. The Establishment Clause
To withstand an Establishment Clause challenge,*fn2 a state statute, policy or action (1) must have a secular purpose; (2) must, as its primary effect, neither advance nor inhibit religion; and (3) must not foster an excessive government entanglement with religions. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971).
Peloza's complaint alleges that the school district has violated the Establishment Clause "by pressuring and requiring him to teach evolutionism, a religious belief system, as a valid scientific theory." Complaint at 19-20. Evolutionism, according to Peloza, "postulates that the 'higher' life forms . . . evolved from the 'lower' life forms . . . and that life itself 'evolved' from non-living matter." Id. at 2. It is therefore "based on the assumption that life and the universe evolved randomly and by chance and with no Creator involved in the process." Id. Peloza claims that evolutionism is not a valid scientific theory because it is based on events which "occurred in the non-observable and non-recreatable past and hence are not subject to scientific observation." Id. at 3. Finally, in his appellate brief he alleges that the school district is requiring him to teach evolutionism not just as a theory, but rather as a fact.
Peloza's complaint is not entirely consistent. In some places he seems to advance the patently frivolous claim that it is unconstitutional for the school district to require him to teach, as a valid scientific theory, that higher life forms evolved from lower ones. At other times he claims the district is forcing him to teach evolution as fact. Although possibly dogmatic or even wrong, such a requirement would not transgress the establishment clause if "evolution" simply means that higher life forms evolved from lower ones.
Peloza uses the words "evolution" and "evolutionism" interchangeably in the complaint. This is not wrong or imprecise for, indeed, they are synonyms.*fn3 Adding "ism" does not change the meaning nor magically metamorphose "evolution" into a religion. " Evolution " and " evolutionism " define a biological concept: higher life forms evolve from lower ones. The concept has nothing to do with how the universe was created; it has nothing to do with whether or not there is ...