Sabra v. Maricopa Cnty. Cmty. Coll. Dist.

• Citation: 44 F.4th 867
• Decision Date: 10 August 2022
• Docket Number: 20-16774
• Parties: Mohamed SABRA; Council on American-Islamic Relations of Arizona, Plaintiffs-Appellants, v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT; Nicholas Damask, in his official and individual capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

44 F.4th 867

Mohamed SABRA; Council on American-Islamic Relations of Arizona, Plaintiffs-Appellants,
v.
MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT; Nicholas Damask, in his official and individual capacity, Defendants-Appellees.

No 20-16774

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2021 Phoenix, Arizona
Filed August 10, 2022

Ahmed Soussi (argued), CAIR-AZ, Mesa, Arizona; David Chami, Price Law Group APC, Scottsdale, Arizona; Raeesabbas Mohamed, RM Warner PLC, Scottsdale, Arizona; for Plaintiffs-Appellants.

Kris Leonhardt (argued) and Pavneet Singh Uppal, Fisher & Phillips LLP, Phoenix, Arizona, for Defendant-Appellee Nicholas Damask.

David D. Garner (argued) and Travis C. Hunt, Osborn Maledon P.A., Phoenix, Arizona, for Defendant-Appellee. Maricopa County Community College District.

Before: Richard R. Clifton, Daniel A. Bress, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Clifton ;

Concurrence by Judge VanDyke ;

Dissent by Judge Bress

CLIFTON, Circuit Judge:

Mohamed Sabra ("Sabra") and the Council on American-Islamic Relations of Arizona, Inc. ("CAIR-AZ") brought this action against Dr. Nicholas Damask ("Damask") and the Maricopa County Community College District (the "College District"). Plaintiffs allege that a module on Islamic terrorism within a course in world politics taught by Damask at Scottsdale Community College (the "College") violated Sabra's constitutional rights under the Establishment Clause and Free Exercise Clause of the First Amendment. Plaintiffs also allege that Damask's disparaging treatment of Islam was part of an official policy embraced by the College District. The district court granted Defendants' motion to dismiss the Complaint, and the Plaintiffs appealed.

We conclude that CAIR-AZ has organizational standing to bring this action alongside Sabra. CAIR-AZ, a non-profit organization that advocates for the civil rights of American Muslims, alleged that Damask's actions frustrated its mission and caused it to divert resources in order to combat Damask's distorted portrayal of Islam. At the motion-to-dismiss stage, these allegations are sufficient to establish organizational standing.

We also conclude, however, that Plaintiffs cannot sustain a claim for municipal liability against the College District. Plaintiffs failed to allege that their injuries were caused by a municipal policy or custom and subsequently abandoned their municipal liability claim on appeal.

Finally, we conclude that Damask is entitled to qualified immunity with respect to Plaintiffs' Establishment Clause and Free Exercise claims. Under the second prong of the qualified immunity analysis, the constitutional right allegedly violated in this

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case was not clearly established at the time of the events giving rise to this action. Because the "clearly established" prong is dispositive in this case, we do not address whether, under the facts alleged in the Complaint, Damask violated Sabra's constitutional rights. We affirm the district court's dismissal of the action.

I. Background

A. The World Politics Course at Scottsdale Community College

This case arises from an online course offered by the College during the spring 2020 semester. The course, "World Politics," was described as an "[i]ntroduction to the principles and issues relating to the study of international relations," including "the political, economic, national, and transnational rationale for international interactions." It was divided into six "modules," each designed to examine a different theme in the study of international affairs, specifically (1) "Realism," (2) "Idealism and International Law," (3) "Images of the World," (4) "Three World Wars," (5) "Globalization and the World Economy," and (6) "Islamic Terrorism." Within each module, there were three components: first, students would review PowerPoint slides discussing the theme of the module; next, they would complete assigned readings to supplement the PowerPoint material; and finally, they would complete an online, multiple-choice quiz. Students were to complete the course online at their own pace.

Sabra was a student in the course. A practicing Muslim, Sabra alleges that the last module, Islamic Terrorism, presented a "biased" and "distort[ed]" portrayal of Islam. His First Amendment claims, discussed below, are based on allegedly false and inflammatory statements throughout the PowerPoint slides, assigned reading, and required quiz that comprised the Islamic Terrorism module. Sabra attached portions of these materials to his Complaint and incorporated them by reference, and the district court considered these materials in evaluating and granting the motion to dismiss his claims.

1. The Islamic Terrorism Module's PowerPoint Slides

The module's PowerPoint presentation, which students were required to review independently at their own pace, was divided into three sub-sections: (1) "Defining Terrorism," (2) "Islamic Terrorism: Definition," and (3) "Islamic Terrorism: Analysis." Sabra focuses predominantly on the first two sub-sections.

The first sub-section provided a general overview of terrorism and distinguished it from other forms of war. On one of the allegedly offending slides, Damask stated that, "effectively[,] there is no non-Islamic international terrorism in the contemporary world." Another slide in this section gave a statistical accounting of Islamic terror attacks, comparing the scope of such attacks to other terror movements and conflicts throughout history. The slide stated, for example, that "Islamic terrorists kill on average more people every 90 days than the number of blacks killed by the Ku Klux Klan in its entire 120+ year history."

The second sub-section purported to define Islamic terrorism and situate it within a larger historical, theological, and political context. One slide, for example, stated that "Islamic terrorism should be understood within the broader history of Islamic warfare against unbelief," or "jihad." "Politically-speaking," the slide explained, "jihad is a religiously-justified, communal mobilization of the resources and capabilities of the Muslim population for war against unbelievers."

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Subsequent slides described the putative justification for terrorism in Islamic theology and law, as well as its supposed antecedents in early Islamic history and teaching. For example, under a heading labeled "[t]he theological mandate for jihad," one slide cited Quranic passages to support a statement that "jihad is a moral obligation of Muslims with limited exceptions such as for the blind." The next slide argued that the Prophet Muhammad plays a "central role" in the justification for Islamic terrorism. "All Islamic terrorists," it stated, "sanctify their actions through pious references to the Quran and the traditions of the Prophet Muhammad," whose "life, sayings, and circumstances" provide a basis for "[e]ngaging in jihad." Rejecting the argument that Islam does not promote "warfare or violence," the slide stated that such a notion "would flatly contradict hundreds of Quranic passages and hadiths (‘traditions’) of Muhammad, as well as longstanding Islamic jurisprudence." The presentation also stated that "Muhammad himself committed acts that ... unambiguously would be regarded as terrorism today."

The final sub-section of the presentation discussed how different groups respond to Islamic terrorism. One slide, for example, stated that "Muslim popular opinion has some sympathy for terrorism generally, and the ultimate goals of terror group[s] (sharia) particularly." The same slide argued that "Islamic states have a decided preference to employ force over diplomacy, relative to other countries," citing comparative statistics regarding various countries' use of force.

2. The Islamic Terrorism Module's Assigned Reading

The module's assigned reading was an excerpt from the book Future Jihad: Terrorist Strategies against America , by Walid Phares. In the first chapter, entitled "The Historical Roots of Jihad," Phares criticized the "western establishment['s] ... efforts to convince audiences and readers of the benign character of jihad." Phares argued that although western academics, journalists, and political activists tried to "sanitize[ ]" and "camouflage[ ]" the meaning of "jihad" throughout the 1990s, its "comprehensive and widely understood" meaning for much of history was quite different. "Jihad," Phares maintained in the assigned reading, was a "call for mobilization and action and ultimately war" in service of the early Islamic umma , or nation, "as it developed its military and strategic dimensions." The aim of jihad was "to promote, propagate, and conquer for Islam." Thus, Phares scoffed at westerners' efforts to "portray personal jihad as a ‘spiritual experience on the inside,’ almost like yoga." Such efforts, he argued, "can only blur the public's vision and its grasp of the real dangers emanating from the modern use of jihad."

3. The Islamic Terrorism Module's Required Quiz

Finally, after reviewing the PowerPoint slides and completing the assigned reading, students were required to complete a 25-question, multiple choice quiz...