Mohamed Sabra v. Maricopa County Community Coll

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MOHAMED SABRA; COUNCIL ON                 No 20-16774
AMERICAN-ISLAMIC RELATIONS OF
ARIZONA,                                    D.C. No.
             Plaintiffs-Appellants,      2:20-cv-01080-
                                              SMB
                 v.

MARICOPA COUNTY COMMUNITY                  OPINION
COLLEGE DISTRICT; NICHOLAS
DAMASK, in his official and
individual capacity,
              Defendants-Appellees.

     Appeal from the United States District Court
              for the District of Arizona
     Susan M. Brnovich, District Judge, Presiding

      Argued and Submitted November 15, 2021
                 Phoenix, Arizona

                 Filed August 10, 2022

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

             Opinion by Judge Clifton;
           Concurrence by Judge VanDyke;
               Dissent by Judge Bress
2      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

                          SUMMARY *


                           Civil Rights

    The panel affirmed the district court’s dismissal of an
action brought pursuant to 

42 U.S.C. § 1983

 against
Dr. Nicholas Damask and the Maricopa County Community
College District alleging that a module on Islamic terrorism
within a course in world politics taught by Damask at
Scottsdale Community College violated plaintiff’s
constitutional rights under the Establishment Clause and
Free Exercise Clause of the First Amendment, and that
Damask’s disparaging treatment of Islam was part of an
official policy embraced by the College District.

    The panel first concluded that the Council on American-
Islamic Relations of Arizona, Inc. (CAIR-AZ) had
organizational standing to bring this action alongside
plaintiff Mohamed 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 were sufficient to establish
organizational standing.

    The panel next held that plaintiffs could not sustain a
claim for municipal liability against the College District.
First, plaintiffs abandoned their municipal liability claim on
appeal by failing to address it in their Reply Brief even after
the College District raised the argument in its Answering
    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.               3

Brief on appeal. But even on the merits, the claim could not
survive dismissal under Fed. R. Civ. P. 12(b)(6). Although
plaintiffs alleged that Damask has taught his World Politics
class for 24 years, they did not allege that the course in other
years contained the same content that offended Sabra, or that
Damask’s views or teaching methods were so persistent and
widespread as to constitute part of the College District’s
standard operating procedure. Plaintiffs also failed to
produce authority suggesting that a professor becomes a
“final policymaker” for an entire community college district
simply by assuming administrative responsibilities within
his department, nor had the panel located any such authority.

    The panel held that Damask was 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 case was not clearly established at
the time of the events giving rise to this action. This court
has never held that actions like the ones challenged in this
case constitute a violation of the Establishment Clause or
Free Exercise Clause. Nor was this the exceptional case
where the alleged constitutional violation was so obvious as
to obviate the need for a case on point. Rather, the context
of this case weighed heavily against any argument that the
violation was obvious. Because the “clearly established”
prong was dispositive, the panel did not address whether,
under the facts alleged in the complaint, Damask violated
Sabra’s constitutional rights.

    Concurring, Judge VanDyke agreed with the majority
but wrote to respond to Judge Bress’s position that qualified
immunity was inappropriate because Sabra’s Free Exercise
claim was clearly established. In reality, Sabra’s Free
Exercise claim—whether it might ultimately succeed or
4     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

not—was fraught with difficulties, which is why no claim
like it has ever, to Judge VanDyke’s knowledge, been
squarely addressed by any court. Judge VanDyke also wrote
separately to briefly note this court’s misguided approach to
organizational standing. Here, the only resources CAIR-AZ
diverted from its organization were those to further its stated
purpose of “protecting the civil rights of American
Muslims.” An activity that falls exactly in line with an
organization’s stated purpose seriously undermines any
sense of injury, and therefore runs afoul of the Supreme
Court’s threshold requirement that injury be “concrete and
particularized” and “actual or imminent.”

    Dissenting, Judge Bress stated that the question here was
not whether Sabra should prevail but merely whether he had
stated a claim for relief at the motion to dismiss stage.
Although Sabra suffered no First Amendment injury through
his mere exposure to inflammatory course materials, he may
have suffered such an injury when, in connection with those
disturbing materials, he was forced to answer black and
white multiple-choice questions that he plausibly alleged
required him to violate his religious beliefs on pain of
receiving a lower grade. Discovery was therefore needed to
assess Damask’s explanations for his facially problematic
quiz questions. Judge Bress also disagreed with affirming
the dismissal of the College District on the ground that Sabra
had not pleaded a custom or practice for purposes of
municipal liability. The district court never reached this
issue, the College devoted minimal briefing to it, and Sabra
had never been given an opportunity to amend his complaint.
The majority then prevented Sabra from even having a
standard opportunity to replead by holding that Sabra had
abandoned this claim on appeal—an abandonment holding
that was unsound, unprecedented, and unfair.
     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.         5

                      COUNSEL

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.
6     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

                          OPINION

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
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.              7

and Free Exercise claims. Under the second prong of the
qualified immunity analysis, the constitutional right
allegedly violated in this 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.
8     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

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.”
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             9

“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.”

    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.
10    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

       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 testing their
comprehension of the module’s content. As discussed
below, Sabra maintains that several questions (and their
correct answers) display a hostility to Islam and are factually
inaccurate. Sabra identifies five examples.
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.        11

    Question 9 asked: “Where is terrorism encouraged in
Islamic doctrine and law?” The answer choices were as
follows:

       •   the Medina verses

       •   the Muhammad verses

       •   the Mecca verses

       •   terrorism is not encouraged in Islamic
           doctrine and law

The correct answer was the first choice, “the Medina
verses.” Sabra incorrectly selected the fourth choice.

   Question 12 asked: “Who do Islamic terrorists strive to
emulate?” The answer choices were as follows:

       •   the Prophet Muhammad

       •   Saddam Hussein

       •   Osama bin Laden

       •   Ibn Tamiyyah

The correct answer was the first choice, “the Prophet
Muhammad.” Sabra incorrectly selected the fourth choice.

   Question 15 stated: “Contemporary terrorism is
______.” The answer choices were as follows:

       •   communist/left-wing

       •   Islamic
12    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

       •   Mormon

       •   fascist/right-wing

The correct answer was the second choice, “Islamic.” Sabra
incorrectly selected the first choice.

    Question 19 stated: “Walid Phares notes that although
‘gullible’ Westerners are taught that jihad can have two
meanings, people in the Arabic world understand that its
overwhelmingly obvious meaning is ______.” The answer
choices were as follows:

       •   struggling against sin

       •   spiritual contemplation

       •   combat/war

       •   peace

The correct answer was the third choice, “combat/war.”
Sabra incorrectly selected the first choice.

   Question 20 stated: “Terrorism is ______ in Islam.” The
answer choices were as follows:

       •   justified within the context of jihad

       •   always forbidden

       •   justified under international law

       •   always justified
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.               13

The correct answer was the first choice, “justified within the
context of jihad.” Sabra incorrectly selected the second
choice.

    When Sabra took the quiz on April 29, 2020, he was, as
alleged in his Complaint, “shocked and offended” to see the
potential answer choices for each of the questions above.
These questions, Sabra alleged, forced him to make a
decision: “either disavow his religion or be punished by
getting the answers wrong on the quiz.” Sabra decided to
answer the questions in accordance with his own personal
practice of the Islamic faith and was penalized by losing
points on the quiz for selecting incorrect answer choices.

    After completing the quiz, Sabra emailed Damask to
express his “disgust” at the questions above (and their
correct answers), which, Sabra said, were “absolutely in
distaste of Islam.” In response, Damask thanked Sabra for
his “heartfelt response” and attempted to “allay” Sabra’s
concerns by noting “that the course content [wasn’t] ‘for’ or
‘against’ anything, but aim[ed] to explain international
politics.” Damask went on to explain that the “point” of the
quiz and module was not to assert that what terrorists
“believe is in fact a ‘true’ or ‘right’ or ‘wrong’ interpretation
of a major religion,” but rather to convey what terrorists
believe.

     In a video posted to Instagram one day after Sabra took
the quiz, a comedian who had learned about the quiz
criticized Damask’s questions and challenged the College on
its stance toward the quiz. The College contacted Sabra and
pledged to investigate the issue. Shortly thereafter, the
College posted a statement to Instagram apologizing to
Sabra “and to anyone in the broader community who was
offended by the [quiz questions].” The College called the
content of the quiz “inaccurate, inappropriate, and not
14    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

reflective to inclusive [sic] nature of college.” The College
also stated that Sabra would receive credit for three of the
questions he had missed, and that the offending questions
would be removed from future quizzes.

     B. Sabra and CAIR-AZ          Challenge    the   Islamic
        Terrorism Module

    Sabra brought this action under 

42 U.S.C. § 1983

 against
Damask and the College District, of which the College is a
part, alleging that the Islamic Terrorism module violated
Sabra’s constitutional rights under the Establishment Clause
and Free Exercise Clause of the First Amendment. Joining
Sabra as a Plaintiff in the action was CAIR-AZ, a non-profit
organization that advocates on behalf of American Muslims.
CAIR-AZ alleged that in an effort “to remedy the damage
done by Damask,” it contracted with a religious scholar to
develop materials for a public-awareness campaign that
would “correct[] . . . Islamophobic information,” thus
diverting resources from the organization’s usual advocacy
activities.

    In their first cause of action, Plaintiffs allege that the
Islamic Terrorism module violates the Establishment Clause
because its “primary message is the disapproval of Islam.”
The crux of this claim is that Damask presented a “biased”
and “one-sided” portrayal of Islam as though it were fact,
without qualifying this interpretation or exposing students to
alternative views.

    The Complaint gathers several examples that allegedly
illustrate this disparaging treatment of Islam. Plaintiffs
argue, for example, that Damask defined the concept of
“jihad” too narrowly, failing to inform students “that prayer,
introspection, and spiritual struggle” are what mainstream
Muslims refer to when discussing jihad. They allege that
       SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                    15

Damask “intentionally distort[ed]” the meaning of various
passages from the Quran and the Hadith 1 by failing to
contextualize and discuss the cited source material, using
incomplete or inaccurate quotations, and relying on poor
English translations. They contend that the PowerPoint
presentation mischaracterized the actions of the Prophet
Muhammad and contained “blatantly false and
inflammatory statements about Islam” (for example, that
contemporary Islamic legal authorities unanimously
sanction suicide attacks). Moreover, they allege that the
assigned reading was authored by a “known Islamophobe”
who “represents . . . an extreme perspective.” Without this
additional contextual information, they argue, the assigned
passage suggested that Damask’s “biased interpretations” of
Islam were “academic facts.”

    In their second cause of action, Plaintiffs allege that the
end-of-module quiz “forced Sabra to agree to [Damask’s]
radical interpretation of Islam” in violation of the Free
Exercise Clause. As noted, Plaintiffs maintain that certain
questions on the module’s mandatory quiz required Sabra
either to “disavow his religion” by selecting the correct
answer choice or be penalized by answering in accordance
with his personal religious beliefs.

    Plaintiffs sued Damask in both his official and individual
capacities. Plaintiffs also named the College District as a
Defendant under a theory of municipal liability, alleging,
among other things, that Damask acted as a “final
policymaker” on behalf of the District, and that the District



    1
      The “Hadith” refers to the sayings, teachings, and actions of the
Prophet Muhammad.
16     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

“had constructive knowledge” that Damask would teach the
Islamic Terrorism module in his World Politics class.

    In addition to seeking nominal damages, Plaintiffs asked
the district court to declare that Defendants’ actions violated
the Establishment Clause, and to enjoin Defendants
temporarily and permanently from teaching the offending
materials unless and until they are modified.

     C. The District Court Dismisses Plaintiffs’ Claims

    Defendants moved to dismiss the Complaint under Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. The district court concluded, as a threshold
matter, that although Sabra’s completion of the World
Politics course mooted his claim for declaratory and
injunctive relief, he could still maintain an action for
nominal monetary damages. But CAIR-AZ, the court
concluded, could not establish Article III standing under a
theory of organizational injury. In the court’s view, CAIR-
AZ had not explained how its remedial actions—developing
a public-awareness campaign to combat Islamophobia—fell
outside “the realm of [its] normal advocacy,” nor had the
organization identified the source from which it was forced
to divert resources. Thus, it failed to state an injury that
would establish Article III standing.

    The district court also concluded that Sabra failed to state
an Establishment Clause or Free Exercise claim. The
allegedly offensive material, the court reasoned, made up
just one part of a unit that was itself one of six modules in
the entire course. Moreover, the challenged content was
conveyed in the context of analyzing terrorism, of which
Islamic terrorism is a part. Viewing the course “as a whole,”
the court concluded, a reasonable, objective observer would
not conclude that the course’s “primary purpose” was to
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.              17

inhibit the practice of Islam, and thus, Sabra failed to state a
claim under the Establishment Clause. With respect to his
Free Exercise claim, the court said Sabra was not put to the
choice of either repudiating his religion or receiving a lower
score on the quiz. In the court’s view, by selecting the
correct answer Sabra was not being forced to adopt the views
expressed by Damask or the authorities cited in the course;
rather, he was merely “demonstrat[ing] an understanding of
the material taught.” Because the course did not burden
Sabra’s personal worship, the court concluded, Sabra’s Free
Exercise claim failed as a matter of law.

    Finally, the district court concluded that Damask was
entitled to qualified immunity. As the court observed,
existing precedent governing Establishment Clause
violations based on college teaching is “anything but clear,”
particularly when the challenged content involves religion.
Because it could not say that Damask would have been on
notice that his conduct might be unconstitutional, the court
concluded that Damask was shielded by qualified immunity.

   This appeal followed.

II. Discussion

    We have jurisdiction under 

28 U.S.C. § 1291

. We
review de novo a district court’s dismissal under Rule
12(b)(1) or Rule 12(b)(6). Whitewater Draw Nat. Res.
Conservation Dist. v. Mayorkas, 

5 F.4th 997

, 1007 (9th Cir.
2021). We also review de novo a district court’s decision
regarding qualified immunity. Vazquez v. County of Kern,

949 F.3d 1153, 1159

 (9th Cir. 2020). Where, as here, a
district court has considered documents attached to the
complaint, we may likewise consider those documents when
resolving the appeal. Interpipe Contracting, Inc. v. Becerra,

898 F.3d 879, 887

 (9th Cir. 2018).
18     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

     A. CAIR-AZ Has Organizational Standing

    “The Article III standing inquiry serves a single purpose:
to maintain the limited role of courts by ensuring they protect
against only concrete, non-speculative injuries.” E. Bay
Sanctuary Covenant v. Biden, 

993 F.3d 640, 662

 (9th Cir.
2021) (citing Lujan v. Defs. of Wildlife, 

504 U.S. 555, 583

(1992)). Whether a plaintiff has standing (and thus, whether
the court has jurisdiction) is a “threshold question” that “is
distinct from the merits of his claim.” Maya v. Centex Corp.,

658 F.3d 1060, 1068

 (9th Cir. 2011).

     An organization can assert Article III standing in its own
right, provided it can “allege[] such a personal stake in the
outcome of the controversy as to warrant [its] invocation of
federal-court jurisdiction[.]” Havens Realty Corp. v.
Coleman, 

455 U.S. 363

, 378–79 (1982) (citation and internal
quotation marks omitted). In Havens, an organizational
plaintiff alleged that the defendants’ racial steering practices
impaired the organization’s efforts to achieve equal housing
access through counseling and referral services. 

Id. at 379

.
The complaint further alleged that the plaintiff had to
“devote significant resources” to “counteract” the
defendants’ practices. 

Id.

 (record citation omitted). The
Supreme Court held that under these facts, there was “no
question” that the organization had sustained a “concrete and
demonstrable injury,” with an attendant “drain on [its]
resources,” that went well beyond a “simpl[e] . . . setback to
[its] abstract social interests.” 

Id.

    We have “read Havens to hold that an organization has
direct standing to sue where it establishes that the
defendant’s behavior has frustrated its mission and caused it
to divert resources in response to that frustration of purpose.”
E. Bay Sanctuary, 

993 F.3d at 663

 (citing Fair Hous. of
Marin v. Combs, 

285 F.3d 899, 905

 (9th Cir. 2002)).
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.          19

Although organizations cannot “manufacture the injury by
incurring litigation costs or simply choosing to spend money
fixing a problem that otherwise would not affect the
organization at all,” they can establish standing by showing
that they “would have suffered some other injury” had they
“not diverted resources to counteracting the problem.” 

Id.

(citation omitted).

     Here, the district court concluded that CAIR-AZ “ha[d]
not effectively shown that it would have suffered an injury
if it had not diverted resources to counteract Dr. Damask’s
allegedly ‘Islamophobic’ teachings.”          The allegedly
offending course material, the court said, was more “akin to
a mere social setback for CAIR-AZ’s abstract social
interest[s],” and the organization had not demonstrated “a
diversion of resources that [was] not a normal part of [its]
activities.” Thus, CAIR-AZ could not establish a cognizable
Article III injury.

    Under our court’s precedents, we disagree. CAIR-AZ is
a non-profit organization “committed to advocacy and
protecting the civil rights of American Muslims.” The
Complaint alleges that CAIR-AZ “had to divert [its]
resources to create a campaign correcting the Islamophobic
information” in Damask’s course materials, contracting with
a religious scholar to develop materials for this campaign.
Under similar facts, we have recognized that such an injury
is sufficient to confer Article III standing on an
organizational plaintiff.

    In Fair Housing Council of San Fernando Valley v.
Roommate.com, LLC, 

666 F.3d 1216

 (9th Cir. 2012), for
example, the organizational plaintiffs stated that they had
spent resources investigating the defendant’s alleged
discriminatory actions and developing “new education and
outreach campaigns” to combat those actions, 

id. at 1219

.
20    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

The resources spent on those efforts were unrelated to
litigation. 

Id.

 We concluded that because the defendant’s
actions caused the plaintiffs “to divert resources independent
of litigation costs and frustrated their central mission,” the
plaintiffs had established organizational standing. 

Id.

     So it is here. CAIR-AZ alleges that in response to
Damask’s allegedly harmful depiction of Islam, it went out
of its way to develop a public-awareness campaign rebutting
the information in Damask’s course, “divert[ing] [its]
resources” by contracting with a religious scholar who
assisted in creating materials for the campaign. As in Fair
Housing Council, then, Damask’s actions “frustrated”
CAIR-AZ’s mission and caused it to divert resources
unrelated to litigation costs. See 

id.

 Although CAIR-AZ’s
diversion-of-resources injury is “broadly alleged,” such
allegations are still “sufficient to establish organizational
standing at the pleading stage.” Nat’l Council of La Raza v.
Cegavske, 

800 F.3d 1032, 1040

 (9th Cir. 2015).

    Defendants argue that the “Havens framework” should
not govern claims arising under the Establishment Clause or
Free Exercise Clause, but we are not persuaded. There is
nothing in Havens’ discussion of organizational standing
that would limit its application in the First Amendment
context. See 455 U.S. at 378–79. The fact that Plaintiffs
have not located a case in which a court extended Havens’
rationale to First Amendment claims does not persuade us
otherwise. Indeed, we have regularly applied Havens’
organizational standing principles outside the fair-housing
context presented in Havens. See, e.g., E. Bay Sanctuary,
993 F.3d at 662–64 (applying Havens and upholding
plaintiffs’ organizational standing in the context of
immigration law); Nat’l Council of La Raza, 800 F.3d
at 1039–41 (same result in the context of voting rights law).
        SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                     21

    Because CAIR-AZ has alleged that Damask’s actions
frustrated its organizational mission and caused it to divert
resources to counteract these actions, we conclude that
CAIR-AZ stated sufficient facts to establish Article III
standing at the motion-to-dismiss stage of the litigation.

    B. Plaintiffs Failed to State a Municipal Liability Claim
       Against the College District and Abandoned Their
       Claim on Appeal

    We now turn to Plaintiffs’ municipal liability claim
against the College District. 2 Plaintiffs allege that Damask
has taught his World Politics course for 24 years, and that he
was required to submit a copy of his course syllabus to his
“division/department office” no later than the end of the first
week of class, under a college regulation. Because Damask
served as the “Social and Behavioral Sciences Evening /
Summer Department Chair” at the College, Plaintiffs allege
that he acted as a “final policymaker” for the College
District, which “knew or had constructive knowledge” that
Damask “was teaching the disapproval of Islam.”




    2
       The College District does not dispute that, under Monell v. New
York City Department of Social Services, 

436 U.S. 658

 (1978), it is a
municipal entity subject to suit under 

42 U.S.C. § 1983

. See also, e.g.,
Eagle Point Educ. Ass’n/SOBC/OEA v. Jackson Cnty. Sch. Dist. No. 9,

880 F.3d 1097, 1108

 (9th Cir. 2018); see generally Rodriguez v.
Maricopa Cnty. Cmty. Coll. Dist., 

605 F.3d 703

 (9th Cir. 2010). Thus,
although the College District is not a municipality per se, we still refer
to Plaintiffs’ claim against the College District as one for “municipal
liability.” Cf. Chudacoff v. Univ. Med. Ctr. of S. Nev., 

649 F.3d 1143

,
1148 (9th Cir. 2011) (referring to a § 1983 claim against a county
hospital as one for “municipal liability”).
22       SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

          1. Plaintiffs Abandoned Their Municipal Liability
             Claim on Appeal

    In the proceedings before the district court, Defendants
argued that Plaintiffs cannot sustain a claim for municipal
liability against the College District because they do not
allege an “official action or policy” giving rise to their
injuries, as is required under Monell. 3 The district court did
not reach this argument in dismissing the Complaint, instead
concluding that Plaintiffs had not stated a violation of the
Establishment Clause or Free Exercise Clause. However, we
“may affirm a 12(b)(6) dismissal on any basis fairly
supported by the record.” Adams v. Johnson, 

355 F.3d 1179, 1183

 (9th Cir. 2004).

    As a threshold matter, Plaintiffs have abandoned their
municipal liability claim on appeal. Although Plaintiffs
advanced a claim for municipal liability in their Complaint
and then defended that claim in their opposition to
Defendants’ motion to dismiss before the district court, they
failed to address or even mention this claim in their Reply
Brief even after the College District raised its municipal
liability argument in its Answering Brief on appeal, starting
on page one of that brief. That failure amounts to
abandonment of Plaintiffs’ claim against the College District
for municipal liability and of whatever argument they might




     3
      Although Defendants characterize this failure as an infirmity that
impacts Article III standing, we treat it as a ground for dismissal under
Rule 12(b)(6), based on a plaintiff’s failure to state a claim. See, e.g.,
AE ex rel. Hernandez v. County of Tulare, 

666 F.3d 631

, 635–37 (9th
Cir. 2012).
        SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                       23

have offered to us to support that claim. See, e.g., Maciel v.
Cate, 

731 F.3d 928

, 932 n.4 (9th Cir. 2013). 4

    The dissent emphasizes that Plaintiffs were not required
to address in their Opening Brief an alternative ground for
affirmance not addressed by the district court. See
Dissenting Op. 71–72. 5 That is true, but also beside the
point. It is Plaintiffs’ failure to address the municipal
liability claim in their Reply Brief, after it was squarely
raised by the College District in its Answering Brief, that
constitutes abandonment of the claim. Though the dissent
suggests otherwise, this conclusion is based on a
straightforward application of our case law on abandonment.

    4
       This failure cannot be attributed to any lack of opportunity. The
Reply Brief reported that it contained 5,400 words. Under our court’s
rules, a reply brief can extend to 7,000 words. Ninth Circuit Rule 32-
1(b). We can only infer that Plaintiffs had nothing to say.
    5
       The dissent also argues that a single, isolated allusion to the legal
standard for municipal liability in the Opening Brief indicates that
Plaintiffs did not intend to abandon this claim on appeal. Dissenting
Op. 72. But we have explained “that we will not ‘consider matters on
appeal that are not specifically and distinctly argued in appellant’s
opening brief,’” United States ex rel. Kelly v. Serco, Inc., 

846 F.3d 325, 335

 (9th Cir. 2017) (emphasis added) (quoting Christian Legal Soc’y
Chapter of Univ. of Cal. v. Wu, 

626 F.3d 483, 487

 (9th Cir. 2010)).
“Applying this standard, [we have] refused to address claims that were
only ‘argue[d] in passing,’ or that were ‘bare assertion[s] . . . with no
supporting argument,’” Christian Legal Soc’y, 

626 F.3d at 487

 (citations
omitted) (first alteration added). Though the dissent suggests otherwise,
Plaintiffs’ passing reference to the standard for municipal liability does
not specifically or distinctly address their municipal liability claim. Cf.,
e.g., Kaiser v. Cascade Cap., LLC, 

989 F.3d 1127

, 1135 n.12 (9th Cir.
2021) (concluding that although a party had “gestured” at a possible
constitutional argument, it “ha[d] forfeited [that] argument by failing to
raise the issue specifically and distinctly in its brief” (citation and
internal quotation marks omitted)).
24    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

In Maciel, for example, a defendant belatedly tried to
preserve a claim that his challenge to a term of parole was
not moot by filing a Federal Rule of Appellate Procedure
28(j) letter shortly before oral argument. 

731 F.3d at 932

n.4. But as we explained, the defendant “ha[d] forfeited this
argument by failing to address it in his reply brief even
though the state raised [the issue of] mootness in its
answering brief.” 

Id.

 We reaffirmed this principle two years
later in International Brotherhood of Teamsters v. Allegiant
Air, LLC, 

788 F.3d 1080

 (9th Cir. 2015). There, we held that
the appellant had waived a claim regarding the preclusive
effect of an agency decision by failing to “cite relevant
authority or otherwise press the point” in its reply brief,
despite the fact that the appellee had raised the issue in its
answering brief. See 

id. at 1090

.

    Although the dissent attempts to portray our conclusion
as a “novel abandonment theory,” Dissenting Op. 77, this
characterization is grounded in arguments that are
unpersuasive and inconsistent with our case law. For
example, the dissent argues that because reply briefs are
optional, an appellant’s failure to address an issue in its reply
brief cannot provide the basis for an abandonment
determination, even if the appellee has raised the issue in its
answering brief. See 

id.

 at 74–75. Of course, Plaintiffs did
file a reply brief in this appeal. More to the point, the
conclusion of the dissent’s argument does not follow from
its premise. Though our rules do not require appellants to
file reply briefs, nothing about that fact suggests that
appellants can avoid the effect of disregarding an argument
presented by the appellee. That is true whether an appellant
fails to file any reply brief or in filing a reply brief fails to
address an issue squarely raised in the appellee’s answering
brief. Indeed, the dissent’s theory is flatly inconsistent with
        SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                      25

our conclusions in Maciel and Allegiant Air. 6 It is, of course,
an appellant’s prerogative not to file a reply brief, or to stay
silent on an issue raised by the appellee in its answering
brief. But it risks abandoning its claim in the process, as our
case law shows. Though the dissent suggests that we are
“creat[ing] potential traps for the unwary,” id. at 29,
monitoring the arguments raised by one’s opponent and
responding as necessary in the reply brief is a basic part of
vigilantly prosecuting an appeal.

     The dissent also notes that we have discretion to
overlook a party’s abandonment of an issue and faults us for
not exercising that discretion here. See id. at 79. We are
aware of no case, however, in which our court has gone to
such lengths to rescue a counseled party’s claim under these
circumstances, and the dissent cites none. It is one thing to
overlook a party’s failure to address a claim in its opening
brief, as we did in the cases cited by the dissent. See id. at 79.
It is quite another to overlook a party’s failure to contest an
argument in its reply brief even after it had been squarely
presented in the answering brief. That Plaintiffs wanted to
maintain their claim for municipal liability does not, as the
dissent suggests, merit a favorable exercise of discretion.
See id. at 80. 7 If that were the case, no claim would ever be
subject to dismissal.


    6
      Relatedly, the dissent cites the fact that we do not have “legions of
cases finding abandonment of claims on appeal through ‘incomplete’
reply briefs” as evidence that our abandonment determination is wrong.
Dissenting Op. 75. But we do not require “legions” of cases to establish
precedent. Maciel and Allegiant Air are sufficient.
    7
       As the dissent acknowledges, at 80, a party cannot resuscitate at
oral argument an abandoned claim that “was not presented in the
briefs[.]” United States v. Juvenile Male, 

670 F.3d 999

, 1014–15 (9th
26       SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

    We are similarly unpersuaded by the dissent’s argument
that Plaintiffs did not abandon their municipal liability claim
because they did not “choose[] a position that removes the
[municipal liability] issue from the case.’” Id. at 70 (citation
omitted). Even assuming this standard applies under the
posture of this case, 8 remaining silent on an issue in the reply
brief after an appellee has raised the issue in its answering

Cir. 2012); see also, e.g., Recycle for Change v. City of Oakland,

856 F.3d 666, 673

 (9th Cir. 2017) (noting that arguments raised for the
first time during oral argument will not be considered).
     8
       The dissent’s argument relies on inapposite law that has never been
applied under the posture before us. In BankAmerica Pension Plan v.
McMath, 

206 F.3d 821

 (9th Cir. 2000), we stated that “[a] party abandons
an issue when it has a full and fair opportunity to ventilate its views with
respect to an issue and instead chooses a position that removes the issue
from the case.” 

Id. at 826

. But the test articulated in BankAmerica
applies to scenarios in which a party has abandoned a claim in the
proceedings below and then tries to revive that claim on appeal. See 

id.

(“[I]t is a general rule that a party cannot revisit theories that it raises but
abandons at summary judgment.” (citation omitted)). That was the
posture in BankAmerica, see 

id.,

 and the case on which it relied for the
cited proposition, see USA Petroleum Co. v. Atlantic Richfield Co.,

13 F.3d 1276

, 1283–84 (9th Cir. 1994).

    We have invoked BankAmerica for the proposition cited in eight
published opinions. Every one of those cases involved a situation in
which a party had arguably abandoned a claim in the proceedings below
and then sought to revive it on appeal. See Manikan v. Peters &
Freedman, L.L.P., 

981 F.3d 712, 718

 (9th Cir. 2020); Echlin v.
PeaceHealth, 

887 F.3d 967, 979

 (9th Cir. 2018); Coomes v. Edmonds
Sch. Dist. No. 15, 

816 F.3d 1255

, 1261 n.4 (9th Cir. 2016); Walker v.
Beard, 

789 F.3d 1125

, 1132–34 (9th Cir. 2015); Ramirez v. City of Buena
Park, 

560 F.3d 1012, 1026

 (9th Cir. 2009); Davis v. City of Las Vegas,

478 F.3d 1048

, 1058–59 (9th Cir. 2007); Pardi v. Kaiser Found. Hosps.,

389 F.3d 840

, 848 n.4 (9th Cir. 2004); Montero-Martinez v. Ashcroft,

277 F.3d 1137

, 1145 n.9 (9th Cir. 2002). That is not the case here, where
Plaintiffs did litigate the argument below but then failed to discuss it on
appeal before us.
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.            27

brief is in our view “choos[ing] a position that removes the
issue from the case.” 

Id.

 For the reasons discussed above,
Plaintiffs’ failure to respond to the College District’s
municipal liability argument in their Reply Brief is a
textbook case of abandonment.

       2. Plaintiffs Failed to State a Claim for Municipal
          Liability

    Even if Plaintiffs had not abandoned their municipal
liability claim, however, this claim could not survive
dismissal under Rule 12(b)(6). Under Monell, plaintiffs
suing a municipal entity for damages under 

42 U.S.C. § 1983

“must show that their injury was caused by a municipal
policy or custom.” Los Angeles County v. Humphries,

562 U.S. 29

, 30–31 (2010). To state a claim against the
College District, then, Plaintiffs must allege “a deliberate
choice to follow a course of action . . . by the official or
officials responsible for establishing final policy with
respect to the subject matter in question.” Pembaur v. City
of Cincinnati, 

475 U.S. 469, 483

 (1986).

    Plaintiffs could satisfy Monell’s policy requirement in
one of three ways. First, the College District may be held
liable if it acted “pursuant to an expressly adopted official
policy.” Gordon v. County of Orange, 

6 F.4th 961

, 973 (9th
Cir. 2021) (citation omitted). Second, the College District
may be held liable based on a “longstanding practice or
custom.” 

Id.

 (citation omitted). Third, the College District
may be held liable if “the individual who committed the
constitutional tort was an official with final policy-making
authority or such an official ratified a subordinate’s
unconstitutional decision or action and the basis for it.” 

Id. at 974

 (citation and internal quotation marks omitted).
28    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

    A plausible reading of the Complaint suggests that
Plaintiffs attempt to invoke the latter two grounds for Monell
liability. That is, the assertion that Damask taught his World
Politics course for 24 years appears to be an allegation that
the College District had a “longstanding practice and
custom” of teaching the disapproval of Islam. Plaintiffs also
allege, more explicitly, that Damask acted as a “final
policymaker” for the College District and/or that his actions
were ratified by such a policymaker. Neither allegation,
however, is sufficient to state a Monell claim.

    Establishing municipal liability through the existence of
a longstanding practice or custom is predicated “on the
theory that the relevant practice is so widespread as to have
the force of law.” Bd. of Comm’rs v. Brown, 

520 U.S. 397, 404

 (1997); see also Trevino v. Gates, 

99 F.3d 911, 918

 (9th
Cir. 1996) (noting that the practice must be so “persistent
and widespread” that it amounts to “permanent and well
settled” municipal policy (citation omitted)). Thus, an entity
may be held liable under this theory, for example, where it
“fails to implement procedural safeguards to prevent
constitutional violations” or “fails to train its employees
adequately.” Gordon, 6 F.4th at 973 (citations and alteration
omitted). By contrast, Plaintiffs cannot allege a widespread
practice or custom based on “isolated or sporadic incidents;
[liability] must be founded upon practices of sufficient
duration, frequency and consistency that the conduct has
become a traditional method of carrying out policy.”
Trevino, 

99 F.3d at 918

; see also Christie v. Iopa, 

176 F.3d 1231, 1235

 (9th Cir. 1999) (“A single constitutional
deprivation ordinarily is insufficient to establish a
longstanding practice or custom.”).

    Here, although Plaintiffs allege that Damask has taught
his World Politics class for 24 years, they do not allege that
        SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                     29

the course in other years contained the same content that
offended Sabra, or that Damask’s views or teaching methods
are so persistent and widespread as to constitute part of the
College District’s “standard operating procedure.” Ulrich v.
City & County of San Francisco, 

308 F.3d 968, 984

 (9th Cir.
2002). They do not allege, for example, that Damask’s
Islamic Terrorism module has been incorporated as a
standard part of the political science curriculum at the
College, or that other professors throughout the College
District subject students to similar views or teaching
methods. Without an allegation that Damask’s allegedly
unconstitutional acts constitute a “permanent and well
settled policy” embraced by the municipal entity, Plaintiffs
have alleged little more than “isolated or sporadic incidents”
that are insufficient to establish Monell liability. Trevino,

99 F.3d at 918

. 9

    Plaintiffs’ other theories of municipal liability fail for the
same or similar reasons. For example, the Complaint also
alleged that because Damask served as the “Social and
Behavioral Sciences Evening / Summer Department Chair”
at the College, he engaged in the allegedly unconstitutional

    9
      The dissent admonishes us for “expect[ing] Sabra to have pleaded
the details that [we] claim[] are missing.” Dissenting Op. 82. But we do
not suggest that the hypothetical allegations above are the only ones that
could suffice to state a plausible municipal liability claim. We offer
these merely as examples of the type of allegation that might have
“nudged [Plaintiffs’] claims across the line from conceivable to
plausible,” Bell At. Corp. v. Twombly, 

550 U.S. 544, 570

 (2007). And
though the dissent maintains that we are being “improperly stringent at
the motion to dismiss stage[,]” Dissenting Op. 81, the standard for
pleading municipal liability is not a low bar, see, e.g., Mansfield v.
Williamson County, 

30 F.4th 276, 279

 (5th Cir. 2022) (“The causal
connection required for Monell liability is demanding.”); Dean v.
Wexford Health Sources, Inc., 

18 F.4th 214

, 235 (7th Cir. 2021) (noting
Monell’s “rigorous causation standard” (citation omitted)).
30    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

conduct as the College District’s “final policymaker,” and
thus, his actions were attributable to the District.

    It is true that “a municipality can be liable for an isolated
constitutional violation when the person causing the
violation has final policymaking authority.” Christie,

176 F.3d at 1235

 (citation and internal quotation marks
omitted). “To determine whether a [municipal] employee is
a final policymaker, we look first to state law.” Lytle v. Carl,

382 F.3d 978, 982

 (9th Cir. 2004). Although “[a] municipal
employee may act as a de facto policymaker under § 1983
without explicit authority under state law, . . . we are
ordinarily not justified in assuming that municipal
policymaking authority lies somewhere else than where the
applicable law purports to put it.” Id. at 982–83 (citation and
internal quotation marks omitted).

    In this case, Arizona law designates a community college
district’s board as the body responsible for “[a]dopt[ing]
policies . . . to offer programs that meet the educational
needs of the population served by the community college[,]”

Ariz. Rev. Stat. Ann. § 15-1444

, and “[e]stablish[ing]
curricula and designat[ing] courses that in its judgment will
best serve the interests of th[e] state,” 

id.

 § 15-1445. While
a final policymaker can delegate its authority to other
officials, see, e.g., Lytle, 

382 F.3d at 984

; Christie, 

176 F.3d at 1236

, Plaintiffs do not allege that such a delegation took
place here. Indeed, even in their district court briefing,
Plaintiffs produced no authority to suggest that a professor
becomes a “final policymaker” for an entire community
college district simply by assuming administrative
responsibilities within his department, cf. Lytle, 

382 F.3d at 983

 (“For a person to be a final policymaker, he or she
must be in a position of authority such that a final decision
by that person may appropriately be attributed to the
       SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                31

[municipal entity].”), nor have we located any such authority
ourselves.

      Finally, Plaintiffs allege that the College District “knew
or had constructive knowledge” that Damask was teaching
the disapproval of Islam, and “not only condoned the
material but approved of its use in the classroom.” This
theory of municipal liability is predicated on the allegation
that under a College District regulation, professors must
submit a copy of their course syllabus to the relevant
“division/department office at the college no later than the
end of the first week of class.” But while “[a] municipality
. . . can be liable for an isolated constitutional violation if the
final policymaker ‘ratified’ a subordinate’s actions, . . . [t]o
show ratification, a plaintiff must prove that the ‘authorized
policymakers approve[d] a subordinate’s decision and the
basis for it.’” Christie, 176 F.3d at 1238–39 (quoting City of
St. Louis v. Praprotnik, 

485 U.S. 112, 127

 (1988)).
Ratification requires, “among other things, knowledge of the
alleged constitutional violation.” Id. at 1239.

    Here, the Complaint does not plausibly allege that a final
policymaker had knowledge (actual or constructive) of the
offending course material and then sanctioned its use in the
classroom. Although the cited regulation indicates that the
academic department was to receive a copy of the syllabus
no later than a week after class had begun, Plaintiffs do not
allege that a final policymaker for the College District was
charged with reviewing the syllabus for this course or any
other, let alone approving or disapproving of their content.

   We therefore conclude that Plaintiffs failed to state a
municipal liability claim against the College District.
Although in other circumstances Plaintiffs might be given
another opportunity to present a pleading that contained
more substantial allegations, that is not necessary in this
32    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

instance because, as described above, Plaintiffs abandoned
their municipal liability claim by failing to present
arguments in support of it on appeal.

       C. Qualified Immunity Shields Damask From
          Liability for Plaintiffs’ Establishment Clause and
          Free Exercise Claims

    The district court concluded that Damask was shielded
from liability under the doctrine of qualified immunity, as
there was no case law clearly establishing that his conduct
was unconstitutional at the time of the alleged offense.
While conceding that there is no case law clearly
establishing the unconstitutionality of Damask’s conduct,
Plaintiffs argue that this case presents the rare circumstance
in which “the constitutional violation is so ‘obvious’ that
prior case law is not needed.”

    The doctrine of qualified immunity “shields government
officials performing discretionary functions from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Saved Mag. v.
Spokane Police Dep’t, 

19 F.4th 1193, 1198

 (9th Cir. 2021)
(citation and internal quotation marks omitted). A federal or
state official is entitled to qualified immunity “unless a
plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 

563 U.S. 731

, 735 (2011). Following
the Supreme Court’s decision in Pearson v. Callahan,

555 U.S. 223

 (2009), we are “permitted to exercise [our]
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand,” 

id. at 236

. “Addressing the second prong before the first is
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.            33

especially appropriate where ‘a court will rather quickly and
easily decide that there was no violation of clearly
established law.’” Jessop v. City of Fresno, 

936 F.3d 937, 940

 (9th Cir. 2019) (quoting Pearson, 

555 U.S. at 239

); see
also C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist.,

654 F.3d 975, 978

 (9th Cir. 2011).

    A right is “clearly established” for purposes of the
second prong of the qualified immunity analysis if, “at the
time of the challenged conduct, the contours of [the] right
are sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.”
al-Kidd, 563 U.S. at 741 (citation, internal quotation marks,
and alterations omitted); see also Ballou v. McElvain,

14 F.4th 1042

, 1049 (9th Cir. 2021) (explaining that
“[c]onduct violates a ‘clearly established’ right if the
unlawfulness of the action in question is apparent in light of
some pre-existing law” (citation, alteration, and some
internal quotation marks omitted)). “We do not require a
case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond
debate.” Jessop, 

936 F.3d at 940

 (quoting al-Kidd, 563 U.S.
at 741). “This demanding standard protects all but the
plainly incompetent or those who knowingly violate the
law.” Evans v. Skolnik, 

997 F.3d 1060

, 1066 (9th Cir. 2021)
(quoting District of Columbia v. Wesby, 

138 S. Ct. 577, 589

(2018)). To determine whether rights are clearly established,
“we look to then-existing cases of controlling authority or,
absent such cases, to a consensus of persuasive authorities.”
J.K.J. v. City of San Diego, 

17 F.4th 1247

, 1259 (9th Cir.
2021) (citation and internal quotation marks omitted).

   Because we conclude that the “clearly established”
prong is dispositive in this case, we need not address
whether, under the facts alleged in the Complaint, Damask
34    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

violated Sabra’s constitutional rights. See Jessop, 

936 F.3d at 940

. As we explain below, we have never held that actions
like the ones challenged in this case constitute a violation of
the Establishment Clause or Free Exercise clause. Nor is this
the exceptional case where the alleged constitutional
violation is so obvious as to obviate the need for a case on
point. The context of this case weighs heavily against any
argument that the violation is obvious. In support of their
defense, Defendants present arguments based on “long-held
protections of academic freedom,” again starting on page
one of their Answering Brief. There are powerful forces on
both sides of this debate. Finally, while courts sometimes
hesitate to dismiss a plaintiff’s claims based on qualified
immunity at the motion-to-dismiss stage, the concerns that
might ordinarily justify such hesitancy are absent in this
case.

       1. Plaintiffs’ Establishment Clause Claim

    When the events giving rise to this action occurred, the
touchstone of our Establishment Clause jurisprudence was
the framework set forth in Lemon v. Kurtzman, 

403 U.S. 602

(1971). Under the so-called Lemon test, a government
practice could satisfy the Establishment Clause only if, in
part, “its principal or primary effect [was] one that neither
advance[d] nor inhibit[ed] religion.” Freedom From
Religion Found. v. Chino Valley Unified Sch. Dist. Bd. of
Educ., 

896 F.3d 1132, 1149

 (9th Cir. 2018) (quoting Lemon,
403 U.S. at 612–13). During the half century in which we
applied this test, we never held that a teacher or curriculum’s
perceived criticism of a religion has the primary effect of
inhibiting religion in violation of the Establishment Clause.
In Farnan, for example, a high school history teacher had
made several pointed remarks disparaging religion during
class lectures. See 654 F.3d at 979–81. Affirming the
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             35

district court’s conclusion that the instructor was entitled to
qualified immunity, we observed that “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.” Id. at 986. “Because
it [was] readily apparent that the law was not clearly
established at the time of” the alleged constitutional
violation, and “because we [could] resolve the appeal on that
basis alone,” we declined to decide whether the teacher’s
actions violated the Establishment Clause. Id. at 978. Since
Farnan was decided, none of our cases has found an
Establishment Clause violation under comparable
circumstances, and Plaintiffs concede that there is no “pre-
existing case-law which establishes the unlawfulness of
[Damask’s] action beyond reasonable debate.”

    We recognize that the Supreme Court’s recent decision
in Kennedy v. Bremerton School District, 

597 U.S. ___

(2022), has called into doubt much of our Establishment
Clause case law, at least to the extent that law relies on
Lemon. In Kennedy, which came down several months after
this case was argued and submitted, the Court recognized
that Lemon had been overruled and abandoned what it
described as Lemon’s “‘ambitious,’ abstract, and ahistorical
approach to the Establishment Clause.” Slip Op. at 22
(alteration adopted) (citation omitted). Instead of relying on
the Lemon test, lower courts must now interpret the
Establishment Clause by “reference to historical practices
and understandings.” 

Id. at 23

 (citation and internal
quotation marks omitted). Going forward, “the line that
courts and governments must draw between the permissible
and the impermissible has to accord with history and
faithfully reflect the understanding of the Founding
Fathers.” 

Id.

 (citation, alterations, and internal quotation
marks omitted). But while the analysis prescribed by
36    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

Kennedy marks a shift in the Court’s Establishment Clause
jurisprudence, it does not alter the conclusion of our
qualified immunity analysis in this case, which is concerned
with “the state of the law at the time of [the alleged
constitutional violation].” Jessop, 

936 F.3d at 940

 (citation
and internal quotation marks omitted). Here, for reasons
already discussed, the law did not clearly establish that
Damask’s actions violated the Establishment Clause at the
time Sabra was enrolled in his course.

    Although Plaintiffs concede that there are no cases
clearly establishing the alleged violation in this case, they
argue that Damask is not entitled to qualified immunity for
two different reasons. First, they argue that this is one of the
exceptional cases in which a prior case (or body of case law)
is not needed to clearly establish the right in question. We
have recognized that there are “rare cases in which the
constitutional right at issue is defined by a standard that is so
‘obvious’ that we must conclude . . . that qualified immunity
is inapplicable, even without a case directly on point.”
Jessop, 

936 F.3d at 942

 (citation omitted) (alteration in
original); see also Wesby, 

138 S. Ct. at 590

 (“Of course,
there can be the rare ‘obvious case,’ where the unlawfulness
of the officer’s conduct is sufficiently clear even though
existing     precedent      does      not    address     similar
circumstances.”). But we have repeatedly emphasized that
such cases are few and far between, see, e.g., Sharp v.
County of Orange, 

871 F.3d 901

, 911–12 (9th Cir. 2017),
and thus, we are hesitant to find a right clearly established
without a body of relevant case law.

     Contrary to Plaintiffs’ assertion, this is not the
exceptional case in which the alleged constitutional violation
is “obvious” despite the absence of relevant case law. As an
initial matter, Plaintiffs’ argument frames the relevant
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.              37

constitutional right at too high a level of generality. In their
briefing below and on appeal, Plaintiffs have described the
constitutional right in question as Sabra’s right to be free
from messages that are “disapproving” of his religion. The
Supreme Court has “repeatedly stressed,” however, “that
courts must not define clearly established law at a high level
of generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular
circumstances that he or she faced.” Wesby, 

138 S. Ct. at 590

 (citation and internal quotation marks omitted). Here,
Plaintiffs’ “overbroad proposition, ‘cast at a high level of
generality,’ is just the sort of sweeping statement of the law
that is inappropriate for assessing whether qualified
immunity applies.” Farnan, 

654 F.3d at 987

 (quoting
Brosseau v. Haugen, 

543 U.S. 194, 199

 (2004) (per
curiam)).

    Plaintiffs’ argument also overlooks several contextual
factors that make the alleged violation less than obvious. For
example, the challenged content was not only taught in a
college course, but also made up a fragment of a single
module that was itself just one-sixth of the course.
Moreover, the offending content did not arise in a vacuum.
It was part of a module that sought to explain the
phenomenon of Islamic terrorism.             Thus, Plaintiffs’
allegation that Damask devoted insufficient attention to
other terror movements is largely beside the point and does
not explain why his alleged constitutional violation was
obvious. Finally, although Plaintiffs allege that Damask
made a number of inflammatory and false statements about
Islam in his PowerPoint slides, it is plausible that Damask
was attempting to describe the views and interpretations of
Islamic extremists, as opposed to his own, subjective
opinions. Though the offending slides could have benefitted
from more precise language, clearer attribution, and better
38    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

use of citations, the ambiguity here undercuts the notion that
Damask’s alleged constitutional violation was obvious. To
be clear, in concluding that Damask is entitled to the benefit
of qualified immunity, we do not express agreement with or
endorse the substance of his teaching, but he is protected by
qualified immunity against the Establishment Clause
allegations stated in Plaintiffs’ Complaint.

    Plaintiffs’ second argument is that, even if the
constitutional right violated by Damask was not clearly
established by a relevant case or body of case law, it was
clearly established by a “fact sheet” prepared by the U.S.
Department of Education and U.S. Department of Justice.
Relying on our decision in Hardwick v. County of Orange,

844 F.3d 1112

 (9th Cir. 2017), Plaintiffs argue that we may
look to agency guidance and statements when deciding
whether a right is clearly established for purposes of
qualified immunity.

    In Hardwick, however, we consulted non-decisional
authority (a state statute) only as a form of supplementary
support for a predicate finding that a particular right was
clearly established. See 844 F.3d at 1118–20. The predicate
finding itself was based on case law. See 

id.

 Likewise, in
Hope v. Pelzer, 

536 U.S. 730

 (2002), the case on which
Hardwick relied, the Supreme Court concluded that a
constitutional right was clearly established based in part on
a regulation issued by the defendants’ employer, as well as a
report, prepared by the Department of Justice, specifically
advising the employer that the conduct in question was
unconstitutional, 

id.

 at 743–45. But again, this non-
decisional authority was used to “buttress[]” a predicate
finding, based on case law, that the constitutional right in
question was clearly established. See 

id.

 at 741–43. Neither
Hardwick nor Hope stands for the proposition that an agency
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.              39

“fact sheet,” without more, is sufficient to clearly establish a
constitutional right.

    In any event, the fact sheet cited by Plaintiffs would not
have put Damask on notice that his conduct was
unconstitutional. Damask did not single out Sabra and
demand that he explain “why Muslims have not denounced
the terrorist attacks of 9/11,” as was true in the example of
unconstitutional conduct cited by the fact sheet. Thus, even
if we could rely solely on non-decisional authority to
conclude that a constitutional right was clearly established,
the fact sheet does not “‘squarely govern[]’ the specific facts
at issue” in this case. Kisela v. Hughes, 

138 S. Ct. 1148, 1153

 (2018) (per curiam) (citation omitted).

    “Mindful that there has never been any prior reported
case holding that a teacher violated the Constitution under
comparable circumstances,” Farnan, 

654 F.3d at 978

, we
affirm the district court’s conclusion that qualified immunity
shields Damask from liability on Plaintiffs’ Establishment
Clause claim.

        2. Plaintiffs’ Free Exercise Claim

    Plaintiffs’ Free Exercise claim fares no better under the
“clearly established” prong of our qualified immunity
analysis.

    To state a claim under the Free Exercise Clause, a
plaintiff must show that a government practice “substantially
burdens a religious practice and either is not justified by a
substantial state interest or is not narrowly tailored to
achieve that interest.” Am. Family Ass’n v. City & County
of San Francisco, 

277 F.3d 1114, 1123

 (9th Cir. 2002).
Again, though, we have never held under comparable
circumstances that a test requiring students to select answers
40        SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

in conflict with their personal religious convictions (or risk
losing points) imposes a substantial burden on religious
practice. Indeed, the most instructive authority we have
identified goes the other way. See Wood v. Arnold, 

915 F.3d 308

, 318–19 (4th Cir. 2019) (concluding that an assignment
which required the student to fill in two missing words of the
shahada, an Islamic declaration—which states, “[t]here is no
god but Allah and Muhammad is the messenger of Allah”—
did not compel the student, a Christian, “to profess or accept
the tenets of Islam,” but was merely “an academic exercise
[requiring the student] to demonstrate her understanding of
the world history curriculum”). 10            As with their
Establishment Clause claim, Plaintiffs concede that there is
no case, or body of case law, that clearly establishes Sabra’s
right not to be subjected to a quiz like the one in this case.

    The absence of such authority is an inescapable feature
of this case, and one that dooms Plaintiffs’ Free Exercise

     10
       Although Wood involved a Free Speech claim rather than a Free
Exercise claim, its factual similarity and reasoning are instructive in this
case. In Wood, the plaintiff argued that “the curriculum implemented
and supervised by [d]efendants compelled [her] to confess by written
word and deed her faith in Allah,” 915 F.3d at 318–19 (first alteration in
original), much as Sabra contends that Damask’s multiple-choice quiz
forced him to adopt views at variance with his religious convictions.
Although the claim in Wood was predicated on a theory of compelled
speech, i.e., that the plaintiff was being forced “to utter . . . speech
bearing a particular message,” 

id. at 319

 (citation omitted), the claim is
analogous (albeit not identical) to the claim Sabra has brought under the
Free Exercise Clause. Given these patent factual parallels, we do not
agree with the dissent’s view that “[t]he facts of Wood . . . bear no
material resemblance to Damask’s quiz questions[,]” Dissenting Op. 91.
More to the point, however, even if the dissent finds Wood less
instructive than we do, it has failed to identify any case that is more
apposite than this, let alone one that would “‘squarely govern[]’ the
specific facts at issue” in this case. Kisela, 

138 S. Ct. at 1153

 (citation
omitted).
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             41

claim under the second prong of the qualified immunity
analysis. Although the dissent tries to find a way around this
problem, the solution it lands upon is to frame the clearly
established law at a high level of generality, an error against
which the Supreme Court has cautioned repeatedly. See al-
Kidd, 563 U.S. at 742 (“We have repeatedly told courts—
and the Ninth Circuit in particular—not to define clearly
established law at a high level of generality.” (citation
omitted)).

     In the dissent’s view, the clearly established
constitutional principle is “that the state cannot condition a
benefit or impose a penalty based on a person’s adherence or
non-adherence to a religious belief.” Dissenting Op. 90.
Framing the constitutional principle in such general terms,
however, “avoids the crucial question whether the official
acted reasonably in the particular circumstances that he or
she faced.” Plumhoff v. Rickard, 

572 U.S. 765, 779

 (2014).
Instead, our inquiry into whether a particular right is clearly
established “must be undertaken in light of the specific
context of the case, not as a broad general proposition.”
Brosseau, 

543 U.S. at 198

 (citation omitted). Recently, for
example, we concluded that although the right “to be free
from sexual harassment by public officials in the workplace
and school contexts” was clearly established under our prior
case law, we had “never held that the Equal Protection
Clause protects private individuals who suffer sexual
harassment at the hands of public officials providing them
with social services.” Sampson v. County of Los Angeles ex
rel. L.A. Cnty. Dep’t of Child. & Fam. Servs., 

974 F.3d 1012, 1024

 (9th Cir. 2020). Because our law had not “placed the
constitutional question beyond debate . . . in the particular
context” of the case before us, we held that the constitutional
right in question was not clearly established at the time of
the alleged violation. 

Id.

 at 1024 & n.10 (emphasis added).
42    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

By contrast, the dissent’s framing of the relevant
constitutional right in this case omits any consideration of
“the specific context of the case,” Brosseau, 

543 U.S. at 198

,
and would vitiate the protections of qualified immunity by
allowing plaintiffs to allege violations of an “extremely
abstract right[,]” White v. Pauly, 

137 S. Ct. 548, 552

 (2017)
(citation omitted).

    Perhaps anticipating this critique, the dissent makes two
additional points that merit a response. In response to our
conclusion that there are no cases putting Damask on notice
that his conduct might be unconstitutional under the
circumstances here, the dissent observes that “no specific
case on point is required.” Dissenting Op. 90 (citing Sharp,

871 F.3d at 911

 n.7). To the extent the dissent means to
suggest that this is “one of those rare cases in which the
constitutional right at issue is defined by a standard that is so
‘obvious’ that we must conclude that qualified immunity is
inapplicable,” even without a relevant case or body of case
law, see Jessop, 

936 F.3d at 942

 (citation and ellipsis
omitted); see also Sharp, 871 F.3d at 911–12, that argument
is unpersuasive for reasons we discuss below. To the extent
the dissent suggests we are impermissibly demanding a case
“directly on point,” al-Kidd, 563 U.S. at 741, that is not true
either. Although no such case is required, “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Id. Thus, the Supreme Court has
chided lower courts for “fail[ing] to identify a case where an
officer acting under similar circumstances . . . was held to
have violated” the relevant constitutional provision. White,

137 S. Ct. at 552

. For all its spirited criticism of our
conclusion, the dissent has not furnished a single case
recognizing a Free Exercise violation under facts remotely
similar to this case, let alone one that “squarely governs the
case here[.]” Brosseau, 

543 U.S. at 201

.
         SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                      43

    The dissent also theorizes that the “level of generality”
problem is less of an issue here than it is in cases involving
“more open-ended constitutional rights” such as the right not
to be arrested without probable cause. Dissenting Op. 86. It
is unclear where this proposed distinction comes from or
what its doctrinal basis might be. The dissent cites no
authority for this theory, and we have not located a Supreme
Court or Ninth Circuit decision that would support that
proposition. As far as we can discern, the Supreme Court’s
admonition to avoid framing clearly established rights at a
high level of generality is not limited to “open-ended” rights,
whatever those may be. That such a limitation has not been
recognized comes as no surprise, for what makes a right
more or less open-ended is unclear. 11 The standard
described by the dissent is so vague and indeterminate as to
justify any result, making principled, consistent application
hopeless.

    Without a case or body of case law clearly establishing
the constitutional right in question, Plaintiffs resort to
arguing that the violation was so obvious as to eliminate the
need for such authority. But this is not one of those “rare
cases.” Sharp, 

871 F.3d at 912

. Even accepting as true the
allegations in Plaintiffs’ Complaint, the purpose and effect
of the quiz are susceptible to interpretation. Although
Plaintiffs argue that it “forced Sabra to disavow his faith and
adopt” views “antithetical” to his religious convictions, it is

    11
       It is not at all clear that the Free Exercise Clause’s “anti-penalty
and anti-hostility principles” are “more precisely defined at the outset”
than, say, the right not to be arrested without “probable cause,” as the
dissent argues. See Dissenting Op. 86 & n.5. As with probable cause,
the concepts of “hostility” and a “penalty” can be defined at widely
varying levels of generality. There is no basis to suggest that we need
less case law to define the contours of the Free Exercise principles at
issue in this case than we do in the context of other constitutional rights.
44        SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

also plausible to interpret the quiz as the district court did. 12
The district court concluded that Sabra “was not required to
adopt the views expressed by Dr. Damask or the authors
Dr. Damask cited to in his course, but only to demonstrate
an understanding of the material taught.” Regardless of
whether the quiz violated the Free Exercise clause—a
question we need not decide to resolve this claim under
prong two of the qualified immunity analysis—any such
violation was far from “obvious.”

    Accordingly, we conclude that Damask is also entitled to
qualified immunity with respect to Plaintiffs’ Free Exercise
claim. 13

           3. Qualified Immunity at the Motion to Dismiss
              Stage

   The Supreme Court has “repeatedly . . . stressed the
importance of resolving immunity questions at the earliest
possible stage in litigation.” Dunn v. Castro, 

621 F.3d 1196, 1199

 (9th Cir. 2010) (alteration in original) (quoting Hunter

     12
        By offering this observation, we are not, as the dissent suggests,
“drawing inferences in favor of the [D]efendants.” Dissenting Op. 84.
We are merely noting that, even taking all of Plaintiffs’ allegations as
true, the alleged violation is not so obvious as to make this the “rare
case[]” in which a constitutional right is clearly established even without
a body of relevant case law. Jessop, 

936 F.3d at 942

.
     13
        The dissent observes that we have not “openly dispute[d]” its
conclusion that Plaintiffs have stated a Free Exercise claim. Dissenting
Op. 83. But we have no reason to dispute such a conclusion where, as
here, we can dispose of a claim based on the second prong of our
qualified immunity analysis. See Jessop, 

936 F.3d at 940

. In light of our
conclusion that Damask is entitled to qualified immunity, we need not,
and do not, take any position as to the merits of Plaintiffs’ Free Exercise
claim.
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             45

v. Bryant, 

502 U.S. 224, 227

 (1991)). That is because
qualified immunity gives government officials “a right, not
merely to avoid standing trial, but also to avoid the burdens
of such pretrial matters as discovery.” 

Id.

 (internal quotation
marks omitted) (quoting Behrens v. Pelletier, 

516 U.S. 299, 308

 (1996)).

    It is true that resolving claims of qualified immunity at
the motion-to-dismiss stage can sometimes present “special
problems for legal decision making,” Keates v. Koile,

883 F.3d 1228, 1234

 (9th Cir. 2018), particularly when we
are “aided only by the skeletal . . . factual picture sketched
out in the complaint,” Wong v. United States, 

373 F.3d 952

,
956 (9th Cir. 2004). Thus, it is understandable that district
courts sometimes delay a decision on qualified immunity
until the parties have had the opportunity to develop a more
comprehensive factual record. See O’Brien v. Welty,

818 F.3d 920, 936

 (9th Cir. 2016) (observing that a Rule
12(b)(6) dismissal based on qualified immunity “is not
appropriate unless we can determine, based on the complaint
itself, that qualified immunity applies” (citation omitted)).

    In this case, though, there are two unique features that
obviate the concern over resolving qualified immunity
claims prior to discovery.

    First, Plaintiffs attached substantial documentary
evidence to their Complaint, including the allegedly
offending slides; the assigned reading excerpt from Future
Jihad; screenshots of the full end-of-module quiz; the World
Politics course syllabus; screenshots of Sabra’s
correspondence with Damask following his completion of
the quiz; and screenshots of the College’s statement posted
to Instagram. We therefore have access to the allegedly
offending course material that forms the sum and substance
of Plaintiffs’ claims, as well as other materials that serve to
46     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

contextualize Plaintiffs’ factual allegations. These are
precisely the materials that ordinarily would have been
produced in discovery.

    Second, Damask’s World Politics course was a self-
guided course administered entirely online. The PowerPoint
slides, assigned readings, and end-of-module quizzes made
up the entirety of the course. There were no lectures,
discussion groups, or other pedagogical components beyond
the materials described in the Complaint. In other words, we
have before us the universe of evidence we might wish to
consider in resolving Damask’s claim of qualified immunity.
Discovery would not serve to sharpen our understanding of
the factual picture in this case.

    Even if discovery somehow were to produce additional
relevant evidence, it is difficult to conceive of evidence that
would alter the result in this case. As discussed, we have
found no cases that would have put Damask on notice that
his conduct might be unconstitutional under the
circumstances here. No matter what we might learn in
discovery, then, Damask would still be shielded by qualified
immunity. 14 Postponing our qualified immunity decision
until the summary judgment stage would only consume



     14
        The dissent takes a more optimistic view as to the fruitfulness of
discovery in this case. See Dissenting Op. 88. But even if that is correct,
the dissent has not explained what we might learn in discovery that
would deprive Damask of qualified immunity. There is good reason to
sidestep that question, for such an outcome would require a case (or body
of case law) that clearly establishes the unlawfulness of Damask’s
actions under the “particular circumstances” in this case. Plumhoff,

572 U.S. at 779

. The dissent has not identified a single case that would
serve this function.
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             47

additional time, expense, and judicial resources, without any
realistic possibility that the outcome would change.

   Accordingly, although we conclude that CAIR-AZ has
organizational standing, we affirm the district court’s
dismissal of this action.

   AFFIRMED.



VANDYKE, Circuit Judge, concurring:

    I agree with the majority opinion and join it. I write to
respond to Judge Bress’s position that qualified immunity is
inappropriate here because Sabra’s Free Exercise claim is
clearly established. In reality, Sabra’s Free Exercise claim—
whether it might ultimately succeed or not—is fraught with
difficulties, which is why no claim like it has ever, to my
knowledge, been squarely addressed by any court. The only
thing clearly established about that claim is that nothing
about it is clearly established.

   I also write separately to briefly note our court’s
misguided approach to organizational standing.

I. Qualified Immunity

    “The doctrine of qualified immunity shields officials
from civil liability so long as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Mullenix v. Luna,

577 U.S. 7, 11

 (2015) (cleaned up). A clearly established
right is one that is “sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Reichle v. Howards, 

566 U.S. 658, 664

 (2012)
48    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

(cleaned up). The Supreme Court “ha[s] repeatedly told
courts—and the Ninth Circuit in particular—not to define
clearly established law at a high level of generality,”
Ashcroft v. al-Kidd, 

563 U.S. 731

, 742 (2011) (cleaned up),
as doing so would “convert the rule of qualified immunity
. . . into a rule of virtually unqualified liability simply by
alleging violation of extremely abstract rights,” Anderson v.
Creighton, 

483 U.S. 635, 639

 (1987).

    Notwithstanding this “demanding standard,” District of
Columbia v. Wesby, 

138 S. Ct. 577, 589

 (2018), our
dissenting colleague defines a constitutional violation at a
level so abstract that it becomes difficult to identify any clear
limit to its application. The dissent would make it a
constitutional violation for instructors such as Professor
Damask to teach and test about their controversial opinions,
but presumably only where those opinions are “crude,”
“wayward,” “gross misconceptions,” “offensive,” or
“denigrating” or “hostile” to a religion. Whatever one thinks
of Professor Damask’s course content, there are serious
concerns with relying on a judge’s subjective views of the
Professor’s possible motives as authorizing the judiciary to
use one part of the First Amendment to cannibalize another.
How we would proceed on the merits, if we needed to, in
this challenging area is a very hard question; the only thing
clear to me is that it would not be appropriate for our analysis
to turn on our own personal views about whether what
Professor Damask taught was too “offensive” or “hostile.”

    According to the dissent, “the two offending [multiple-
choice] questions put Sabra to a facially invalid choice
between disaffirming his religious beliefs or receiving a
lower grade.” And so Sabra was “forced to ratify [Professor
Damask’s] views or face a tangible detriment.” For this
reason, the dissent “would have held that Sabra stated a Free
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             49

Exercise Clause claim and remanded for the parties to
engage in discovery.” To drive this point home, the dissent
encourages everyone to “imagine multiple-choice questions
such as these being posed to us based on what we would
regard as gross misconceptions of our own religions.”

    This is always good advice, especially for judges. It
never hurts to ask ourselves whether we could live with the
rule we are applying in a case if it was our ox being gored.
I’m a Christian, so I’ll craft the hypothetical accordingly:
The Bible instructs followers of Christ to “hate [their] father
and mother, wife and children, [and] brothers and sisters.”
Luke 14:26 (NIV). Obviously, many people—including
most (if not all) Christians, myself included—would not
interpret this passage in isolation to represent an accurate
statement of Christian doctrine about loving your family.
But a “wayward” professor could certainly rely on it to
support an “offensive” view that the Bible directly teaches
that all Christians must hate their families—full stop. That
same professor, having taught that controversial view, might
require his students to answer the following multiple-choice
question on a graded quiz:

       Where does the Bible instruct Christians to
       hate their families?

       A. The Gospel of Luke

       B. The Epistle to the Hebrews

       C. The Book of Deuteronomy

       D. Hating one’s family is not taught in the
          Bible.
50       SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

Christian students (myself included) may strongly believe
the correct answer is D, but according to the professor, the
correct answer would be A.

    This hypothetical demonstrates several salient points.
Among them, just as most people view terrorism as very bad,
the same could be said of hating one’s family. 1 And a
religion that teaches its followers to hate one’s family would
most certainly be viewed with near universal disdain. But
would an offended Christian student similarly situated to
Sabra have a Free Exercise claim just because his professor
taught this controversial position taken directly from the
Bible, and then tested on it? Should the availability of that
claim turn on the professor’s personal motives for teaching
the material? I suppose jurists could disagree about those
questions. But it would be much harder for them to dispute
whether anything in our caselaw clearly establishes such a
claim.

    We have repeatedly affirmed the idea that academic
freedom protects a professor’s right to teach controversial
subjects. See, e.g., C.F. ex rel. Farnan v. Capistrano Unified
Sch. Dist., 

654 F.3d 975, 988

 (9th Cir. 2011); Rodriguez v.
Maricopa Cnty. Cmty. Coll. Dist., 

605 F.3d 703

, 709 (9th
Cir. 2010). This principle plainly extends to testing students
on what they were taught, even if it only concerns the
professor’s opinions and not demonstrable facts. Were this
not the case, judges and juries would be given the power to
decide which opinions are too “hostile” or “denigrating” to

     1
       Teaching that the Bible instructs all Christians to hate their families
is much closer to teaching that Islam supports terrorism than it may
appear at first blush because the Bible elsewhere equates hating with
being a murderer. See I John 3:15 (NIV) (“Anyone who hates a brother
or sister is a murderer.”).
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.            51

a religion, to use some of the dissent’s terms. That is
troubling.

    So ultimately, if we remanded this case, and everything
the dissent imagines might favor Sabra turned out to be true,
Sabra still would not have a clearly established Free Exercise
claim. Only by ignoring the utter paucity of similar cases in
this context can the dissent conclude otherwise. If we had to
decide whether Professor Damask’s views cross the “dimly
perceived line of demarcation” such that teaching his
controversial opinions was unconstitutional, Farnan,

654 F.3d at 988

 (cleaned up), we obviously would. But we
would be the first to address that issue, and it would be very
difficult. And because we would be the first to do so, this is
obviously a case in which qualified immunity applies. See
Mullenix, 

577 U.S. at 11

.

II. Organizational Standing

    While I agree with the majority opinion that our circuit’s
precedent compels the conclusion that CAIR-AZ has
organizational standing, this case presents yet another
example where our court’s jurisprudence is at “loggerheads”
with Supreme Court precedent. See Fair Hous. Council of
San Fernando Valley v. Roommate.com, LLC, 

666 F.3d 1216, 1224

 (9th Cir. 2012) (Ikuta, J., concurring and
dissenting). The Supreme Court has determined that
organizational standing arises upon a showing of an injury
in fact, similar to the test for individual standing. See
Havens Realty Corp. v. Coleman, 

455 U.S. 363

, 378–79
(1982). This means that an organization must show “an
invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent.” Lujan v.
Defenders of Wildlife, 

504 U.S. 555, 560

 (1992) (cleaned
up). To satisfy this standard, the challenged conduct should
“perceptibly impair[]” the organization’s interest in carrying
52    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

out its core mission. See Havens, 455 U.S. at 378–79.
Consistent with Havens, our court has determined that an
organization can establish standing if it can show
“(1) frustration of its organizational mission; and
(2) diversion of its resources to combat the [challenged
actions].” Smith v. Pac. Prop. & Dev. Corp., 

358 F.3d 1097

,
1105 (9th Cir. 2004).

    But as in other areas of our court’s jurisprudence, we
have paid lip service to these rules while faltering in our
application. In multiple cases, we have watered down the
requisite injury to the point where “we have held that an
organization with a social interest in advancing enforcement
of a law was injured when the organization spent money
enforcing that law.” Fair Hous. Council of San Fernando
Valley, 666 F.3d at 1226 (Ikuta, J., dissenting) (discussing
Smith, 358 F.3d at 1105). As Judge Ikuta has astutely noted,
“[t]his looks suspiciously like a harm that is simply ‘a
setback to the organization’s abstract social interests,’ the
very thing Havens indicated was not a ‘concrete and
demonstrable injury to the organization’s activities . . . .’”
Id. (quoting Havens, 

455 U.S. at 379

).

    We can add this case to the pile. CAIR-AZ pled that it
is a “non-profit organization committed to advocacy and
protecting the civil rights of American Muslims while
promoting justice.” It also pled that “[i]n an attempt to
remedy the damage done by [Professor] Damask, CAIR-AZ
has had to divert their resources to create a campaign
correcting the Islamophobic information.” And it further
pled that “it has contracted with a religious scholar to create
materials for this campaign.” While this suffices under our
precedent, it merely establishes that CAIR-AZ simply “spent
money . . . addressing the exact problem [it was] established
to address.” Fair Hous. Council of San Fernando Valley,
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.           53

666 F.3d at 1226 (Ikuta, J., dissenting). In other words, the
only resources CAIR-AZ diverted are those to further its
stated purpose of “protecting the civil rights of American
Muslims.” An activity that falls exactly in line with an
organization’s stated purpose seriously undermines any
sense of injury, and therefore runs afoul of the Supreme
Court’s threshold requirement that injury be “concrete and
particularized” and “actual or imminent.” See Lujan,

504 U.S. at 560

. Given our warping of clear Supreme Court
instruction, I agree with Judge Ikuta that we should revisit
our circuit’s organizational standing test en banc. See Fair
Hous. Council of San Fernando Valley, 666 F.3d at 1227
(Ikuta, J., dissenting).



BRESS, Circuit Judge, dissenting.

    Mohamed Sabra, a Muslim student at a public
community college, was literally put to the test. In a class
presentation reasonably viewed as denigrating to Islam,
Professor Nicholas Damask taught that Islamic terrorism
was rooted in the Koran’s religious mandates and that the
Prophet Muhammad had himself committed acts of
terrorism. Asserting that “[t]he legitimacy of terrorism is
supported by nearly every Islamic legal authority of any
significance” and that “[c]ontentions that Islam does not
promote warfare or violence cannot be supported on either
theological or historical grounds,” Damask littered his
presentation with photos of Muslim children with captions
such as “A future Hamas terrorist?” and “Yet another?”
Damask then had students take a crude multiple-choice quiz
in which to receive credit, Sabra was forced to answer—
contrary to his religious beliefs—that terrorism is
“encouraged in Islamic doctrine and law” and “justified
54    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

within the context of Jihad.” Faced with formal questions of
Islamic religious doctrine and constrained by the format,
Sabra chose his religious beliefs and got the questions
wrong, earning a lower grade.

    Being put to the stark choice between adhering to one’s
sincerely held religious beliefs or facing a penalty falls
within the heartland of the Free Exercise Clause’s
protections. The question here, however, is not whether
Sabra should prevail but merely whether he has stated a
claim for relief at the motion to dismiss stage. He has.
Although Sabra suffered no First Amendment injury through
his mere exposure to inflammatory course materials, he may
have suffered such an injury when, in connection with those
disturbing materials, he was forced to answer black and
white multiple-choice questions that he plausibly alleges
required him to violate his religious beliefs on pain of
receiving a lower grade. Discovery is therefore needed to
assess Damask’s explanations for his facially problematic
quiz questions.

    The majority opinion unfortunately never gets there by
relying on alternative grounds for dismissal that result in the
majority avoiding the question of whether Sabra’s Free
Exercise claim is legally valid. But the majority’s grounds
for decision are not correct. The majority bestows qualified
immunity on Professor Damask based on a minimal record
that raises more questions than it answers, even though we
have repeatedly held that granting qualified immunity at the
motion to dismiss stage and without discovery is disfavored.

    The majority also affirms the dismissal of the Maricopa
County Community College District because Sabra
supposedly has not pleaded a custom or practice for purposes
of municipal liability, even though the district court never
reached this issue, the College devoted minimal briefing to
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.           55

it, and Sabra has never been given an opportunity to amend
his complaint. The majority then prevents Sabra from even
having that standard opportunity to replead by holding that
Sabra has abandoned this claim on appeal—an abandonment
holding that is unsound, unprecedented, and unfair. The
majority has effectively imposed a case-ending sanction on
Sabra in circumstances that do not remotely warrant it.

     I would have met Sabra’s Free Exercise claim on the
merits rather than rely on legally infirm alternative grounds
for affirmance. Sabra’s allegations are troubling, concern
matters of sincerely held religious conviction, and warrant
further judicial inquiry. I respectfully dissent.

                              I

    The plaintiff, Mohamed Sabra, enrolled in Professor
Nicholas Damask’s World Politics course at Scottsdale
Community College in the 2020 spring semester. The
College is part of the Maricopa County Community College
District (“MCCCD”), and a state actor for purposes of

42 U.S.C. § 1983

. Damask’s course, which he has been
teaching at the College for 24 years, is self-guided and
administered online. When students have questions, they
can message Damask on the College’s internal
communication software platform.

    This appeal centers on a unit of Damask’s course entitled
“Islamic Terrorism.” During that unit, Damask assigned an
excerpt from the book Future Jihad: Terrorist Strategies
Against America by Walid Phares, had students review a
PowerPoint presentation that Damask created, and
administered a 25-question, multiple-choice quiz. The heart
of Sabra’s Free Exercise Clause claim turns on two questions
in this quiz for which Sabra lost points, but which he claims
he could not answer “correctly” because the questions as
56     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

written required him to affirm a view of Islam that is contrary
to his religious beliefs.

     The district court dismissed Sabra’s complaint under
Rule 12(b)(6), finding that Sabra failed to state a Free
Exercise Clause violation because the quiz only required
Sabra “to demonstrate an understanding of the material
taught.” The majority decides this case in a way that allows
it to avoid the merits of this claim. In a subsequent section,
I will explain why the majority is wrong to do so. In this
section, I explain why, in my view, Sabra has stated a claim
for relief under the Free Exercise Clause. There are
unanswered questions here, but those require discovery; we
cannot simply accept the defendants’ view of the facts. 1

                                  A

    The question in the current posture is only whether Sabra
has pleaded enough factual allegations to survive dismissal
of his Free Exercise claim. To do so, Sabra’s complaint must
contain a “short and plain statement of the claim showing
that [he] is entitled to relief.” Fed. R. Civ. P. 8(a). This
requires Sabra to plead a claim that is “plausible on its face,”
meaning that his complaint must contain sufficient “factual
content that allows the court to draw the reasonable
inference that the defendant[s] [are] liable for the

     1
       I agree with the majority that under our precedents, plaintiff
Council on American-Islamic Relations of Arizona, Inc. (“CAIR-AZ”)
has organizational standing under Article III. (For ease of reference,
however, I will refer to Sabra as the plaintiff.) I also agree with
defendants that Sabra’s Establishment Clause claim lacks merit. The
Establishment Clause does not provide the right doctrinal “box” for the
problem before us. See Cal. Parents for Equalization of Educ. Materials
v. Torlakson, 

973 F.3d 1010

, 1022 (9th Cir. 2020) (CAPEEM) (Bress, J.,
concurring).
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.           57

misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555

 (2007)). Sabra has met this threshold burden.

    Although Damask’s quiz questions form the basis for the
claimed Free Exercise Clause violation—because it is
through them that Sabra suffered a formal penalty—
Damask’s PowerPoint presentation provides the primary
context for the quiz. The PowerPoint slides were made
available prior to the quiz and are attached as an exhibit to
Sabra’s complaint. The slides would understandably cause
considerable offense to a Muslim student (among others)
because they portray Islam as a religion that not only
supports terrorism but requires it. I offer only a few of
Damask’s slides here for consideration. I have added red
boxes around some of the more striking portions of the
slides:
58   SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.
SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.   59
60   SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.          61

The only other relevant course material was an excerpt from
a book by Walid Phares, who Sabra alleges promotes anti-
Muslim ideologies.

    At the conclusion of the unit on Islamic terrorism,
Damask had students take a multiple-choice quiz. Two
questions form the core of Sabra’s Free Exercise Claim. In
Question 9, Sabra was asked to answer: “Where is terrorism
encouraged in Islamic doctrine and law?” Consistent with
his religious beliefs, Sabra chose the fourth answer:
“terrorism is not encouraged in Islamic doctrine and law.”
The “correct” answer was “the Medina verses.” This
screenshot of the web-based quiz shows the question and
Sabra’s incorrect answer:




(The reader will notice that there is a box in the bottom
labeled “Additional Comments,” but there is no suggestion
that it was Sabra who could add such comments when taking
the quiz. Instead, it appears this box was to be used by the
62    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

instructor, in the event the instructor wanted to comment on
the student’s answer.)

   In Question 20, Sabra was asked to fill in the blank:
“Terrorism is ______ in Islam.” Consistent with and
constrained by his religious beliefs, he chose the second
answer: “always forbidden.” That too was wrong:




    After taking the quiz, Sabra messaged Professor Damask
to express his “disgust” at having to answer questions that
were “absolutely in distaste of Islam.” Sabra explained that
he “usually do[es] not feel offended when my religion is
talked about” and “underst[ood] the school has a
curriculum,” but nevertheless, “I feel I should not let these
types of questions just stand.” In response, Damask wrote
that the questions were designed to illuminate “what beliefs
motivate [terrorists] no matter how wrong they may be.”
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.               63

     Damask did not give Sabra credit for his answers to these
two questions, and Sabra received a 64% on the quiz. Sabra
posted the quiz questions on social media, where the story
quickly went viral. The College at first condemned
Damask’s actions, but then later retracted its disapproval and
called for an “immediate independent investigation of the
facts related to this situation.” It appears that the College
initially indicated that it would give Sabra credit for three
questions he missed, but Sabra alleges that the points have
not been credited.

                               B

    With this background in place, I turn to the merits of
Sabra’s Free Exercise challenge. A student does not state a
Free Exercise violation merely because he was exposed to
offensive content in class. See Cal. Parents for Equalization
of Educ. Materials v. Torlakson, 

973 F.3d 1010

, 1016 (9th
Cir. 2020). But when a school “penalize[s], interfere[s]
with, or otherwise burden[s] religious exercise,” 

id. at 1020

,
or when the challenged action has “a coercive effect that
operates against the litigant’s practice of his or her religion,”
Grove v. Mead Sch. Dist. No. 354, 

753 F.2d 1528

, 1533 (9th
Cir. 1985), the student has a viable claim.

    To determine if a Free Exercise violation has occurred,
we ask whether the state has put the plaintiff to a choice
between exercising religion or “recei[ving] an important
benefit upon conduct proscribed by a religious faith, . . .
thereby putting substantial pressure on an adherent to modify
his behavior and to violate his beliefs.” Thomas v. Review
Bd. of Ind. Employment Sec. Div., 

450 U.S. 707

, 717–18
(1981). In other words, a plaintiff states a Free Exercise
claim when state action forces a conditional choice between
exercising one’s religious beliefs and avoiding a penalty or
gaining a benefit. See Fulton v. City of Philadelphia, 141
64    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

S. Ct. 1868, 1876 (2021) (“[I]t is plain that the City’s actions
have burdened [plaintiff’s] religious exercise by putting it to
the choice of curtailing its mission or approving
relationships inconsistent with its beliefs.”); Trinity
Lutheran v. Comer, 

137 S. Ct. 2012

, 2021–22 (2017) (“[T]he
Department’s policy puts Trinity Lutheran to a choice: It
may participate in an otherwise available benefit program or
remain a religious institution . . . . [W]hen the State
conditions a benefit in this way . . . the State has punished
the free exercise of religion.”).

    We have upheld schools’ curricular decisions against
Free Exercise challenge when such an unconstitutional
choice has not been imposed. In CAPEEM, a group of
parents of Hindu children in the California public schools
challenged the state’s curricular standards, alleging that they
“carr[ied] a hostile and denigrating message about the
origins of Hinduism when compared with similar provisions
relating to other religions of the world.” 973 F.3d at 1013–
15. The district court dismissed the parents’ Free Exercise
claims and we affirmed. We held that because the standards
“at most . . . contain material Appellants find offensive to
their religious beliefs,” the defendants did not violate the
Free Exercise Clause. Id. at 1020. In Grove, we similarly
held that a school board’s refusal to remove from the
curriculum a book that offended plaintiff’s “religious
sensibilities” did not create a Free Exercise Clause issue.
See 753 F.2d at 1533–34.

    Given this precedent, Damask’s PowerPoint
presentation, standing alone, did not violate Sabra’s Free
Exercise rights, however repugnant Sabra may have found
the course materials. But the quiz is a different matter
because of its penalty component. On its face, the quiz—
which based on the record before us provided no context
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.            65

except the bare questions asked—put students to a black-
and-white choice on direct questions of Islamic religious
doctrine. To gain points on Question 9, Sabra had to affirm
that terrorism is “encouraged in Islamic doctrine and law,”
and lost points when he answered: “terrorism is not
encouraged in Islamic doctrine and law.” Similarly, in
Question 20, Sabra had to ratify that terrorism was
“justified” in Islam, when he believed, consistent with the
second answer, that it was “always forbidden.”

    A “severe” and “inescapable” impact on religious
exercise exists when state action “affirmatively compels” a
student to “perform acts undeniably at odds with
fundamental tenets of their religious beliefs.” Wisconsin v.
Yoder, 

406 U.S. 205, 218

 (1972). That is the core principle
that Sabra plausibly invokes here. We can all imagine
multiple-choice questions such as these being posed to us
based on what we would regard as gross misconceptions of
our own religions. It is one thing to be exposed to such
material in a public-school setting. It is quite another to be
forced to ratify those views or face a tangible detriment. And
while Sabra’s claim ultimately turns on just two questions
on a quiz, I know of no “peppercorn” exception to the Free
Exercise Clause, by which religious liberties could
apparently be whittled away on the theory that they matter
not enough. To regard Sabra’s challenge as de minimis is to
ignore the constitutional injury of which he reasonably and
rightly complains.

    There is of course a fine line between unlawfully
penalizing a student for his religious beliefs and teaching a
student a point of view that may offend those beliefs.
College professors should have wide latitude in choosing
how they will teach a course. And the temptation to turn
every uncomfortable moment into a constitutional violation
66    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

should be resisted. But what I believe is doing the work here
for Sabra at the motion to dismiss stage is the intensely
formal nature of the multiple-choice format; the specific way
in which the questions were drafted; their orientation around
Islamic religious beliefs; and the fact that when Sabra
answered the questions “incorrectly,” he lost points on the
quiz.

    Sabra was not merely made to endure offensive course
materials. He was instead placed into a caged pedagogical
exercise in which he was forced to affirm a wayward view
of his religion or else receive a lower grade. There was no
way out for Sabra on this one. The issue here is thus not
Sabra’s discomfort, but his being docked points—receiving
a penalty—for his failure formally to answer “correctly” a
question of Islamic religious doctrine. On its face, the two
offending questions put Sabra to a facially invalid choice
between disaffirming his religious beliefs or receiving a
lower grade.

                             C

    But is there some other explanation for this? Was this
just a poorly drafted quiz or were the quiz questions
reflective of Professor Damask’s possible hostility toward
Islam? Or is there some other reason we can be less
concerned about what happened here? The problem is that
at this stage of the proceedings, we do not know. And we
need discovery to get to the bottom of this, including on
Damask’s request for qualified immunity.

    The quiz questions themselves came with no
introduction, explanation, or disclaimer. They lack any
context as presented. And the most salient context we have
is Damask’s PowerPoint presentation. Suffice to say,
however, if a professor was hoping to explain away facially
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.          67

problematic quiz questions such as these, the PowerPoint
Damask created is a very poor choice for putting those
concerns to rest. One can easily read into that PowerPoint a
denigrating view of Islam. Sabra thus plausibly alleges not
only that the quiz questions put him to an unconstitutional
Catch-22, but that they required him to endorse the
disapproving view of Islam that he could reasonably
perceive in the PowerPoint slides. Damask’s PowerPoint
presentation thus underscores the need for discovery into
Sabra’s allegations.

    The defendants offer two main responses to the quiz, but
neither can carry the day at the motion to dismiss stage.
First, when Sabra complained to Professor Damask using the
College’s messaging system, Damask suggested in response
that the quiz questions were written from the perspective of
what an Islamic terrorist would argue, with the implication
that students were supposed to answer the questions from
that standpoint. Damask urged Sabra “not to think about
whether the terrorists’ beliefs are ‘right’ or ‘wrong’ or
‘true,’” but to “approach the discussion” by “thinking
simply” about “what beliefs motivate [the terrorists] no
matter how wrong they may be.”

    It is possible that this was Damask’s thinking when he
prepared the quiz. But there is no basis to credit that
explanation without discovery. Damask’s response to Sabra
is hard to square with the fact that the quiz questions are
drafted as though they are calling for purely factual,
objective answers—as one might expect for a multiple-
choice quiz. And when the quiz asked students to think from
a certain perspective, the questions so indicated. For
example, Question 19 was framed around what Walid Phares
believes. Questions 9 and 20 were not written in that way.
And Damask’s PowerPoint was not written in that way,
68    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

either. While Damask attributes some of the statements in
his slides to others, many of the most troubling statements
were offered without attribution.

    Second, the defendants argue that Sabra has not stated a
claim because he was merely “being tested to demonstrate
understanding of the course material.” The district court
similarly believed there was no Free Exercise Clause
violation because Sabra was only being asked “to
demonstrate an understanding of the material taught.” It is
possible that this may turn out to be the best view of what
happened. But we cannot treat the defendants’ position as
true in the present posture.

    The implication of the defendants’ argument is that a
public school could teach a curriculum hostile to a religion,
penalize students who answer formal questions of religious
doctrine “wrong,” and then absolve itself of liability by
arguing that students were merely being asked to rehash
what they learned in the course. That is an unsettling
proposition with no apparent limiting principle. And it
would mean that even outright animus toward religion in a
public-school setting could be immunized from
constitutional challenge by the circular response that
students were merely being tested on the course materials.
Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Comm’n, 

138 S. Ct. 1719, 1731

 (2018) (state actors may not
act with “hostility to a religion or religious viewpoint”). The
defendants’ argument therefore sweeps too broadly. I
cannot credit the evident suggestion that no public-school
        SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                      69

class can ever produce a Free Exercise violation, regardless
of how the course is taught or the material tested. 2

    To say that Sabra was being tested on the course
materials, as defendants do, thus requires further analysis
into the nature of those materials and the context for the
disputed quiz questions. And on that issue, we do not have
complete information. I would have held that Sabra stated a
Free Exercise Clause claim and remanded for the parties to
engage in discovery.

                                    II

    The majority bypasses the merits of Sabra’s Free
Exercise claim altogether. It affirms the district court’s
judgment for the College District on alternative grounds that
the district court did not reach. The majority further holds
that Professor Damask is entitled to qualified immunity.
These holdings are mistaken.

                                    A

    The majority affirms the district court’s dismissal of the
College District by concluding that (1) Sabra on appeal
abandoned his municipal liability claim against the College
District; and (2) his complaint fails to allege a custom or
practice for purposes of municipal liability. In my view, the
majority errs in resolving this claim on grounds that the
district court did not reach, and on a pleading issue for which

    2
      This is not a matter of bringing to bear one’s subjective or personal
views, as the separate concurrence incorrectly asserts. It is instead part
of our obligation to ensure that government actors do not act in ways that
“are hostile to the religious beliefs of affected citizens” or “in a manner
that passes judgment upon or presupposes the illegitimacy of religious
beliefs and practices.” Masterpiece Cakeshop, 

138 S. Ct. at 1731

.
70     SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

Sabra was entitled to leave to amend his complaint. The
majority compounds that error by improperly holding that
Sabra has abandoned his claims against the College District.

                                     1

    The district court did not reach the question of whether
Sabra sufficiently alleged an official custom or practice for
purposes of the College District’s “municipal” liability. See
Monell v. Dep’t of Soc. Serv., 

436 U.S. 658, 694

 (1978).
Although the College District advanced this argument in its
motion to dismiss, the district court instead found that Sabra
had not pleaded a First Amendment violation. The district
court therefore did not address whether Sabra sufficiently
pleaded an official custom or practice for purposes of the
College District’s alleged municipal liability.

    Somewhat remarkably, the majority holds that Sabra
“abandoned [his] municipal liability claim on appeal.” Maj
Op. 22. That is not correct. “A party abandons an issue
when it has a full and fair opportunity to ventilate its views
with respect to an issue and instead chooses a position that
removes the issue from the case.” BankAmerica Pension
Plan v. McMath, 

206 F.3d 821, 826

 (9th Cir. 2000). That is
not what happened here. 3


     3
       Although the majority tries to suggest otherwise, BankAmerica sets
the standard for when “a party abandons an issue.” 

206 F.3d at 826

. We
have set forth that standard in general terms in many cases, without
suggesting that it is limited only to abandonment of a claim at the district
court as opposed to the court of appeals. Nor is it apparent why any
different standard would apply in those two contexts. The majority thus
itself evaluates abandonment under BankAmerica’s test and does not
suggest any alternative standard that we should apply instead. Maj.
Op. 26.
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             71

    We can begin with Sabra’s opening brief. To the extent
the majority is faulting Sabra for not specifically addressing
in his opening brief whether he had pleaded a custom or
practice for purposes of the College District’s municipal
liability, Sabra had no obligation to raise this issue on his
own. The district court did not rule against him on this basis.
There is no requirement that an appellant seeking reversal of
the judgment below engage in shadowboxing by
preemptively discussing other alternative grounds for
affirmance in his opening brief.

   Our cases are clear on this point. As we reiterated last
year:

       We have previously held that the failure of a
       party in its opening brief to challenge an
       alternate ground for a district court’s ruling
       given by the district court waives that
       challenge. . . . [An appellant] does not waive
       a challenge to any ground for the district
       court’s ruling in its opening brief that was not
       relied on in the district court’s order.

Warmenhoven v. NetApp, Inc., 

13 F.4th 717, 729

 (9th Cir.
2021) (quoting Rodriguez v. Hayes, 

591 F.3d 1105

, 1118 n.6
(9th Cir. 2010)) (alterations omitted; second emphasis
added); see also Vos v. City of Newport Beach, 

892 F.3d 1024

, 1035 n.10 (9th Cir. 2018) (rejecting the argument that
appellants waived an issue by not addressing it in their
opening brief because the district court did not rule on that
basis). Indeed, we have described it as “‘groundless’” “to
suggest that an appellant must address all possible alternate
grounds for affirmance—even those not ruled upon by the
district court—in an opening brief.” Warmenhoven, 

13 F.4th at 729

 (quoting Rodriguez, 

591 F.3d at 1118

 n.6). To the
72       SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

extent the majority premises its abandonment holding on
what Sabra allegedly failed to include in his opening brief,
the majority clearly errs.

    While our clear case law on this issue is sufficient to
show that Sabra had no obligation to raise municipal liability
in his opening brief, I note that Sabra certainly did maintain
in his opening brief that he was seeking relief against the
College District and that he had a basis to do so. Sabra
argued, among other things, that “MCCCD had actual and
constructive knowledge that the Islamic Terrorism module
was going to be taught at [the College] because MCCCD’s
own Regulation 3.6 requires that ‘a copy of the course
syllabus [] be submitted to [MCCCD] no later than the end
of the first week of class.’” He further argued in his opening
brief that “MCCCD not only had notice of the class material,
but it condoned the same and approved its use in the
classroom.”

    These statements each directly address the legal standard
for municipal liability, which in the majority’s words
requires that the College District had “knowledge (actual or
constructive) of the offending course material and then
sanctioned its use in the classroom.” Maj. Op. 31. And more
broadly, throughout his opening brief, Sabra made clear that
he was seeking reversal of the judgment as to both Damask
and the College District. This was more than sufficient to
show that Sabra was still pressing this claim, even as nothing
required Sabra to address the sufficiency of his custom and
practice allegations when the district court did not rule on
that basis. 4


     4
      In a footnote, the majority maintains that these statements in
Sabra’s opening brief were not sufficient to show that Sabra “specifically
       SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.                      73

    We can turn next to the remainder of the briefing. In
approximately two and a half pages of its 53-page answering
brief—on pages 43 to 46—the College District argued that
we could affirm on the alternative ground that Sabra had
failed to plead an official custom or policy for purposes of
municipal liability. Much of this abbreviated discussion in
the College District’s answering brief consisted of
background legal citations. As the majority notes, Sabra in
his reply brief did not specifically address this claimed
alternative ground for affirmance.

    The majority seizes on this to hold that Sabra has thereby
abandoned his Monell theory on appeal. According to the
majority, even though the district court never ruled on this
basis, once the College District in its answering brief raised
this supposed alternative ground for affirmance—on a
pleading issue for which Sabra otherwise would have
received leave to amend—Sabra’s failure to respond to the
argument in his reply brief means he has now forfeited his
entire municipal liability claim for all time. According to the
majority, this abandonment rule “is true whether an
appellant fails to file any reply brief or in filing a reply brief
fails to address an issue squarely raised in the appellee’s
answering brief.” Maj. Op. 24. The majority thus holds that
once the appellant in a reply brief “disregard[s] an argument
presented by the appellee” in its answering brief, the
appellant has thereby conceded the argument through
abandonment. Maj. Op. 24–25. The majority claims this

and distinctly” argued his municipal liability claim there. Maj. Op. 23
n.5. But as I have explained, Sabra had no obligation at all to address in
his opening brief possible grounds for affirmance on which the district
court did not rely. Warmenhoven, 

13 F.4th at 729

. I point out what Sabra
said in his opening brief to show that even notwithstanding his lack of
obligation, Sabra did not somehow walk away from his claim against the
College District.
74    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

rule of law “is based on a straightforward application of our
case law on abandonment,” and indeed reflects “a textbook
case of abandonment.” Maj. Op. 23, 27.

    It is hard to overstate the unprecedented nature of this
holding as a matter of appellate procedure. Under the
Federal Rules of Appellate Procedure, appellants are not
required to file reply briefs at all; they are optional. See
Fed. R. App. P. 28(c), 31(a). Many litigants in our Court do
not file them. United States v. Dharni, 

757 F.3d 1002, 1004

(9th Cir. 2014) (“It is not at all unusual for appellants to fail
to file reply briefs, which are optional.”). The order
docketing this case thus used our standard language stating
that Sabra’s “optional reply brief is due 21 days after service
of the answering brief.” To the extent the majority is
suggesting that an appellant’s failure to file a reply brief is
tantamount to abandonment, the majority contradicts both
the Federal Rules and the explicit guidance we gave the
parties in this case through our usual case-opening order.
The rules governing reply briefs explain why we do not have
loads of cases finding issues abandoned for failure to file
reply briefs, which would be the case if the majority’s rule
were actually the law.

    To the extent the majority’s abandonment holding turns
on the fact that Sabra chose to file a reply brief but did not
address every issue raised in the answering brief—here, a
pleading issue that the district court did not even reach—the
majority’s abandonment rule is equally invalid. With a
background rule that reply briefs are optional, we have never
told appellants that if they elect to file a reply brief, failure
to respond to a particular argument made in the answering
brief means appellants will be treated as forfeiting that claim.
As I explain below, a failure to address an issue in a reply
brief can contribute to an appellant losing on the merits of
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.               75

that issue. But we have never held that in and of itself, such
a failure is a procedural default. Once again, it is
commonplace that litigants in optional reply briefs do not
always address every single argument raised in an answering
brief, especially ones that were not grounds for the decision
below. If the majority’s rule were the law, we would again
have legions of cases finding abandonment of claims on
appeal through “incomplete” reply briefs.

   Instead, for all its representation that its abandonment
holding is a “straightforward application of our case law on
abandonment,” Maj. Op. 23, the majority identifies only two
cases supporting its broad abandonment theory. But the
majority quotes isolated lines from those cases without
revealing their full picture. Those two cases do not support
what the majority is doing here. And they confirm that
today’s decision is anything but a “straightforward
application” of existing law.

     In the first case, Maciel v. Cate, 

731 F.3d 928

 (9th Cir.
2013), the appellee argued for the first time in its answering
brief that the defendant’s completion of parole mooted the
appeal, based on events post-dating the filing of the appeal.

Id.

 at 931–32. The appellant responded to the mootness
issue in his reply brief. See Maciel v. Cate, No. 11-56620,
Dkt. 33 at 2–4. Then, the appellant attempted to raise a new
argument against mootness in a letter filed pursuant to
Federal Rule of Appellate Procedure 28(j). In a footnote, we
stated that the appellant had “forfeited this argument” by
“failing to address it in his reply brief” and by instead raising
it in an “improper[]” Rule 28(j) letter “filed shortly prior to
oral argument.” Maciel, 

731 F.3d at 932

 n.4.

    We have never at any point in Maciel’s nearly 10-year
existence cited this two-line snippet in a footnote as setting
forth some watershed principle of abandonment
76    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

jurisprudence (indeed, it appears we have never cited this
aspect of Maciel at all). Maciel does not support, much less
require, the majority’s abandonment holding. The appellant
in Maciel of course forfeited his right to make any further
argument on appeal on the mootness issue; that is what made
his Rule 28(j) letter improper. And that explains why in the
one sentence the majority relies upon, Maciel cited only
United States v. McHenry, 

659 F.3d 893, 902

 (9th Cir. 2011),
a case that also rejected an argument because it was made
for the first time in a Rule 28(j) letter. See Maciel, 

731 F.3d at 932

 n.4. But to say that an appellant cannot make
additional arguments in a Rule 28(j) letter filed on the eve of
argument—a longstanding point we make all the time—is a
far cry from saying the appellant in a reply brief has totally
abandoned an entire claim forever, especially one based on
a pleading issue that the district court never addressed. And
for all the majority’s reliance on Maciel’s footnote, Maciel
ultimately went on to address the argument on the merits as
a matter of discretion. 

Id.

 If the majority had followed the
rest of Maciel’s footnote, it would have had to remand to
allow Sabra to replead, as I explain below.

    The second case the majority cites is International
Brotherhood of Teamsters v. Allegiant Air, LLC, 

788 F.3d 1080

 (9th Cir. 2015). That case also does not support the
majority’s broad abandonment rule. In Allegiant Air, the
appellant failed to argue in its opening brief that an agency
decision should have preclusive effect. 

Id. at 1090

. Out of
an apparent abundance of caution, the appellee argued in its
answering brief that collateral estoppel did not prevent us
from revisiting the issue. 

Id.

 In its reply brief, the appellant
then tried to argue that the agency determination did have
preclusive effect, but it offered only a conclusory assertion
on this point. 

Id.

 We stated that although “[w]e have
discretion to consider an issue raised in a reply brief where,
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.               77

as here, an appellee raised an issue in its brief . . . [b]ecause
[appellant’s] Reply does not cite relevant authority or
otherwise press the point, we find the argument waived.” 

Id.

    Properly considered, the central problem in Allegiant Air
was that the appellant failed to raise an argument in its
opening brief. The question then became whether to
exercise our discretion to address the argument because the
appellee had raised it in its answering brief. Allegiant Air
thus speaks to the question of what an appellant must do to
revive an argument it neglected to include in its opening
brief, but which is potentially back in play based on the
appellee discussing it in the answering brief.

     This case is completely different because as I discussed
above, Sabra had no obligation to address the municipal
liability pleading issue in his opening brief. Allegiant Air
did not purport to set forth a general rule of irrecoverable
abandonment of a claim anytime a reply brief does not
address an argument made in the answering brief. The
majority’s assertion that my views here are “flatly
inconsistent with our conclusions in Maciel and Allegiant
Air,” Maj. Op. 24–25, is thus simply wrong, ignoring the
critical differences between this case and those ones. This is
not a “textbook case of abandonment,” as the majority
somehow asserts, Maj. Op. 27, but the deployment of an
entirely novel abandonment theory.

    To be sure, and as I referenced above, an appellant’s
failure to respond to an argument raised in an answering
brief can result in the appellant losing on the merits of the
ground raised in the answering brief and not addressed in a
reply brief. That is because (as the majority notes) we “may
affirm a 12(b)(6) dismissal on any basis fairly supported by
the record,” Adams v. Johnson, 

355 F.3d 1179, 1183

 (9th
Cir. 2004), just as we may affirm the judgment on alternative
78    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

grounds more generally, see, e.g., Harris Rutsky & Co. Ins.
Servs., Inc. v. Bell & Clements Ltd., 

328 F.3d 1122, 1136

(9th Cir. 2003).

    But losing on the merits is entirely different than losing
on grounds of abandonment. The problem here is that the
majority cannot just affirm on the merits. The Monell issue
is, at best, a failure to plead sufficient facts. Until today,
Sabra had never received a ruling identifying insufficiencies
in his “custom and practice” factual allegations. And as I
explain further below, Sabra would have been given leave to
amend his allegations as a matter of course—as the majority
expressly concedes. Maj. Op. 31–32. The Monell pleading
issue is thus not on its own an alternative ground for
affirmance: we could at best vacate the district court’s
decision on this basis as to the College District and instruct
that Sabra be given leave to replead with additional facts.
Yet the only reason the majority is disallowing Sabra from
having that standard opportunity to amend his complaint is
by bootstrapping its improper theory that Sabra abandoned
this issue in his reply brief.

    As a procedural ruling, the implications of today’s
abandonment holding will likely extend far beyond Sabra
and his claims. Parties often spar in the district court over
various claimed pleading deficiencies as to which the court
does not rule but which, if it had dismissed on those bases,
would have been the proper subject of leave to amend. Now
every one of these fact pleading defects is in play on appeal
as an alternative ground for affirmance on abandonment
grounds if the appellant fails to address them preemptively
in his opening brief and/or in his reply brief. With no basis
in the federal rules or our precedents, the majority has
created potential traps for the unwary while inviting
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.           79

extensive and unnecessary protective briefing on pleading
issues that district courts did not address.

    Of course, even if the majority’s abandonment-by-reply-
brief theory were plausible, nothing requires the majority to
find Sabra’s claim against the College District abandoned
and thereby block Sabra from pursuing any further relief
against this defendant. “We have discretion . . . to overlook
any waiver.” Phillips v. E.I. DuPont de Nemours & Co. (In
re Hanford Nuclear Rsrv. Litig.), 

534 F.3d 986, 1007

 (9th
Cir. 2008). Indeed, we often exercise that discretion even
when an appellant fails specifically and distinctly to argue
an issue in his opening brief—unlike here, the violation of
an actual, well-established procedural requirement. See,
e.g., Etamedi v. Garland, 

12 F.4th 1013, 1027

 (9th Cir.
2021); Wooten v. Kirkland, 

540 F.3d 1019

, 1025 n.4 (9th Cir.
2008); Koerner v. Grigas, 

328 F.3d 1039

, 1048–49 (9th Cir.
2003).

    Why not exercise that discretion here, when Sabra is
being blindsided with a novel theory of abandonment and
when he has advanced troubling allegations related to his
religious beliefs? A favorable exercise of discretion would
further be warranted considering that nothing in Sabra’s
reply brief indicates that he was “choos[ing] a position that
removes the [Monell] issue from the case,” as is required to
find Sabra’s claim against the College District abandoned.
BankAmerica Pension Plan, 

206 F.3d at 826

. Sabra’s reply
brief consistently indicated that he was seeking reversal of
the district court’s judgment as to both appellees. From
Sabra’s reply brief, the majority “infer[s] that [Sabra] had
nothing to say” about his Monell claim. Maj. Op. 23 n.4.
Why not infer instead that Sabra believed, correctly, that he
had no obligation to say anything on this issue?
80    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

     When we asked Sabra’s counsel at oral argument about
this, he made clear that Sabra was not abandoning any claim
against the College District, explaining at length Sabra’s
theories of municipal liability. I agree with the majority that
an abandoned claim cannot be resuscitated at oral argument.
But the oral argument colloquy with Sabra’s counsel
confirms that the Monell issue was never abandoned in the
first place. And it underscores the severity of the majority’s
abandonment ruling.

    The majority claims it is “aware of no case . . . in which
our court has gone to such lengths to rescue a counseled
party’s claim under these circumstances.” Maj. Op. 25. But
surely other parties have done worse and fared better. I do
not understand why, even on the majority’s misguided view
of abandonment, that the majority is insisting that Sabra face
case-ending consequences as an exercise of our discretion.

    I am aware of no case in which we have found a claim
abandoned in circumstances such as this, and the majority
cites none. Nothing in our cases required this. And I see no
judicial interest in applying the doctrine of abandonment in
the unforgiving fashion that the majority does here. The
majority has turned what is at best a minor omission in an
optional reply brief into a death knell.

                              2

    Equally severe is the majority’s conclusion that Sabra’s
complaint fails to allege a custom or policy, and that Sabra
is not even allowed an opportunity to amend.

    To demonstrate an official custom or policy under
Monell, Sabra was required to allege that the College District
made “a deliberate choice to follow a course of action . . . by
the official or officials responsible for establishing final
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             81

policy with respect to the subject matter in question.”
Pembaur v. City of Cincinnati, 

475 U.S. 469, 483

 (1986). To
state such a claim, Sabra could have alleged a “longstanding
practice or custom.” Gordon v. Cnty. of Orange, 

6 F.4th 961

, 973 (9th Cir. 2021) (quotations omitted). In addition,
even if the incident is isolated, municipal liability remains
proper “if [a] final policymaker ratified a subordinate’s
actions,” meaning that the policymaker “approve[d] a
subordinate’s decision and the basis for it.” Christie v. Iopa,

176 F.3d 1231

, 1238–39 (9th Cir. 1999) (quotations
omitted).

    Sabra plainly endeavored to plead these elements in his
complaint. He alleged that the College District had
constructive knowledge of the class syllabus; that Damask
had been teaching this class for 24 years; that the College
District “publicly defended” Damask after Sabra’s
allegations came to light; and that because “Damask, as the
division/department chair, engaged in [the challenged]
actions[,] and thus as the final policymaker[,] Damask’s
actions are attributable to” the College District. Sabra thus
specifically alleged that the College District “not only
condoned the material but approved of its use in the
classroom.”

    The majority spends pages explaining why these
allegations are insufficient—far more than the College
District itself spent on this issue in its answering brief. On
the merits, I find much of the majority’s analysis improperly
stringent at the motion to dismiss stage. For example, the
majority faults Sabra for “not alleg[ing] that the course in
other years contained the same content that offended Sabra,”
and notes that Sabra did not allege that “other professors
throughout the College District subject students to similar
views or teaching methods.” Maj. Op. 28–29. I doubt Sabra
82    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

had to make allegations so far-reaching to state a claim for
municipal liability. But at the same time, Sabra did allege
that Damask had been teaching the course for nearly a
quarter century, and that he was the department chair who in
that capacity approved his own course. On this front, it is
not reasonable to expect Sabra to have pleaded the details
that the majority claims are missing.

    The larger point, however, is that even if one were
inclined to agree with the majority that Sabra’s existing
complaint could use some beefing up, Sabra has never been
given the opportunity to cure the deficiencies that the
majority identifies. Under Rule 15, leave to amend should
be “freely give[n].” Fed. R. Civ. P. 15(a)(2). “[T]his
policy,” we have held, “is to be applied with extreme
liberality.” Owens v. Kaiser Foundation Health Plan, Inc.,

244 F.3d 708, 712

 (9th Cir. 2001) (quoting Morongo Band
of Mission Indians v. Rose, 

893 F.2d 1074, 1079

 (9th Cir.
1990)). Thus, “a district court should grant leave to amend
even if no request to amend the pleading was made, unless it
determines that the pleading could not possibly be cured by
the allegation of other facts.” Ebner v. Fresh, Inc., 

838 F.3d 958, 963

 (9th Cir. 2016) (quotations omitted).

    If the district court had ruled against Sabra on the bases
that the majority does, Sabra clearly would have been
entitled to leave to amend. Indeed, if the district court had
refused to grant Sabra leave to amend, we would have held
that the court abused its discretion. See Eminence Capital,
LLC v. Aspeon, Inc., 

316 F.3d 1048, 1052

 (9th Cir. 2003)
(holding that the district court abused its discretion because
“[d]ismissal with prejudice and without leave to amend is
not appropriate unless it is clear on de novo review that the
complaint could not be saved by amendment”). There is
strong reason to believe that Sabra could address the alleged
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             83

shortcomings that the majority identifies considering
Damask’s lengthy history of teaching this class, his
prominent decision-making role in the College, and the fact
that Sabra can plausibly allege that the College approved or
was aware of Damask’s course materials. The majority
effectively agrees, recognizing that “in other circumstances
Plaintiffs might be given another opportunity to present a
pleading that contained more substantial allegations.” Maj.
Op. 31–32.

    But the majority then remarkably shuts this down too
because “Plaintiffs abandoned their municipal liability claim
by failing to present arguments in support of it on appeal.”
Maj. Op. 31–32. This is excessive and wrong for the reasons
I have given above. What was at best Sabra’s minor
omission in his reply brief on appeal has become the
supposed justification for a case-dispositive sanction
preventing him from even re-pleading a legitimate claim.

                              B

    The majority further errs in granting qualified immunity
to Professor Damask at this preliminary stage of the
proceedings. To determine if Damask is entitled to qualified
immunity we consider “(1) whether there has been a
violation of a constitutional right; and (2) whether that right
was clearly established at the time of [his] alleged
misconduct.” Jessop v. City of Fresno, 

936 F.3d 937, 940

(9th Cir. 2019) (quotations omitted). Here, plaintiffs have
stated a Free Exercise claim, which the majority does not
openly dispute. So, to receive qualified immunity, Damask
must show that he did not violate a clearly established right.

    It may be that Damask will be able to make that showing.
But we are not in a position to form that judgment now, at
this early juncture. A state actor cannot condition a benefit
84    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

or impose a penalty on the plaintiff’s exercise, or willingness
not to exercise, a religious belief. See, e.g., Fulton, 141
S. Ct. at 1876; Trinity Lutheran, 

137 S. Ct. at 2022

; Thomas,

450 U.S. at 716

; Yoder, 

406 U.S. at 218

; Grove, 753 F.2d
at 1533–34. The issue is not whether that principle is clearly
established—it obviously is—but instead whether that is
what happened here, and whether Damask acted with
hostility towards Islam in the process. See Masterpiece
Cakeshop, 

138 S. Ct. at 1731

. That is why discovery is also
needed to evaluate the qualified immunity question.

    The majority sees things differently, but its reasoning is
not persuasive. The majority concludes that “[t]he purpose
and effect of the quiz are susceptible to interpretation.” Maj.
Op. 43. But this only shows that the majority is drawing
inferences in favor of the defendants, which is impermissible
at this stage. See Ass’n for Los Angeles Deputy Sheriffs v.
Cnty. of Los Angeles, 

648 F.3d 986, 991

 (9th Cir. 2011) (on
a motion to dismiss “[t]he court draws all reasonable
inferences in favor of the plaintiff”). In any event, the two
disputed quiz questions do not require much interpretation
to see they are problematic. And if they are not, it is only
because the context of the rest of the course demonstrates
that the quiz questions are not as they might seem. But we
need discovery to figure that out.

    The majority’s conclusion otherwise reflects error. The
majority “stress[es] the importance of resolving immunity
questions at the earliest possible stage in litigation.” Maj.
Op. 44 (quoting Dunn v. Castro, 

621 F.3d 1196, 1199

 (9th
Cir. 2010)). Although I agree with the sentiment, it does not
govern here. In Dunn, the case the majority cites on this
point, the plaintiff prisoner filed a § 1983 claim rooted in
substantive due process, claiming that the prison had
violated his “fundamental liberty interest in his relationship
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.            85

with his children” after the prison prohibited minors from
visiting him after he had phone sex with his wife from the
prison with one of his children on the line. 

621 F.3d at 1198, 1204

. We were quite right to reject that near-frivolous claim
on qualified immunity grounds at the motion to dismiss
stage. But that case bears no resemblance to this one, where
the baseline constitutional right is clearly established, and
the key question is instead how the disputed quiz questions
should be properly understood.

    The more relevant cases for our purposes are the ones
emphasizing that “[d]etermining claims of qualified
immunity at the motion-to-dismiss stage raises special
problems for legal decision making” because we must accept
the well-pleaded allegations in the complaint as true. Keates
v. Koile, 

883 F.3d 1228, 1234

 (9th Cir. 2018) (reversing
district court’s grant of qualified immunity at the Rule
12(b)(6) stage); see also O’Brien v. Welty, 

818 F.3d 920, 936

(9th Cir. 2016) (reversing district court’s grant of qualified
immunity at the Rule 12(b)(6) stage because “dismissal is
not appropriate unless we can determine, based on the
complaint itself, that qualified immunity applies”) (quoting
Groten v. California, 

251 F.3d 844, 851

 (9th Cir. 2001));
Morley v. Walker, 

175 F.3d 756, 761

 (9th Cir. 1999)
(affirming denial of qualified immunity at the Rule 12(b)(6)
stage); Pelletier v. Federal Home Loan Bank of S.F.,

968 F.2d 865, 872

 (9th Cir. 1992) (same). We have
therefore cautioned that the “skeletal—at best—factual
picture sketched out in [a] complaint” can preclude the
resolution of qualified immunity at the motion to dismiss
stage. Wong v. United States, 

373 F.3d 952

, 956 (9th Cir.
2004).

   It is of course true, as the majority notes, that “courts
must not define clearly established law at a high level of
86       SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular
circumstances that he or she faced.” District of Columbia v.
Wesby, 

138 S. Ct. 577, 590

 (2018) (quotations omitted). But
not every qualified immunity case presents a dispositive,
first-order level of generality problem at every stage of
litigation. And setting aside that Wesby was a summary
judgment case, the “level of generality” problem in qualified
immunity cases is more pronounced in cases like Wesby
itself, which involve more open-ended constitutional
rights—there the right not to be arrested without “probable
cause.” 

Id. at 582, 584

. Here, the Free Exercise Clause’s
anti-penalty and anti-hostility principles are fairly defined. 5
And I do not believe we need an exhaustive body of case law
to conclude that it is improper to impose a penalty based on
hostility or animus toward a particular religion, assuming
that is what happened here.

    Although it is possible that after discovery Damask may
have a “level of generality” argument, the questions we need
to consider first are simply what the quiz questions meant
and what Damask was teaching, which require factual
development. The majority thus proves my point in
repeatedly emphasizing that qualified immunity turns on the
specific context of the case. Maj. Op. 41. It is that context
that I believe necessitates further factual inquiry before the
qualified immunity question can be confidently answered.




     5
      A constitutional right that is more precisely defined at the outset
requires less case-by-case development to illuminate its meaning.
Therefore, the level of generality problem is less acute. This reasoning
should hardly be considered controversial, as the majority incorrectly
asserts.
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.             87

    That is why our case law recognizes the difficulties
associated with making qualified immunity determinations
at the motion-to-dismiss stage, difficulties that I believe are
present here. Keates v. Koile, 

883 F.3d at 1234

; O’Brien,

818 F.3d at 936

; Wong, 373 F.3d at 956. As we explained in
Keates in reversing the grant of qualified immunity on a Rule
12(b)(6) motion, “our decision at the motion-to-dismiss
stage sheds little light on whether the government actors
might ultimately be entitled to qualified immunity ‘were the
case permitted to proceed, at least to the summary judgment
stage’ and the court is presented with facts providing context
for the challenged actions.” 

883 F.3d at 1235

 (quoting
Wong, 373 F.3d at 957) (emphasis added); see also O’Brien,

818 F.3d at 936

 (“Once an evidentiary record has been
developed through discovery, defendants will be free to
move for summary judgment based on qualified
immunity.”).

    The majority concedes that “district courts sometimes
delay a decision on qualified immunity until the parties have
had the opportunity to develop a more comprehensive
factual record.” Maj. Op. 45–45. But it concludes that “two
unique features” of this case make qualified immunity
appropriate at the pleadings stage. Maj. Op. 45. I disagree
with that assessment.

    The first “unique” feature that the majority identifies is
the fact that the plaintiffs “attached substantial documentary
evidence to their Complaint,” including the quiz questions
and offending slides. Maj. Op. 45. The majority thus
believes it has “precisely the materials that ordinarily would
have been produced in discovery.” Maj. Op. 46. This is not
persuasive.

    Plaintiffs often attach exhibits to their complaints. But
that standard practice does not invariably, or on its own,
88    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

justify granting a motion to dismiss, including on qualified
immunity grounds. Equally unfounded is the majority’s
suggestion that there are no further documents out there that
could bear on this case. There is no basis for that
assumption.

    One can easily imagine the many document requests that
Sabra could legitimately serve on the defendants that would
shed further light on Damask’s facially problematic quiz
questions and how he taught his class. These include but are
not limited to documents on which Damask relied in
preparing the quiz; documents on which Damask relied in
preparing the PowerPoint; Damask’s communications with
the College and others about Sabra’s complaints or
Damask’s controversial teaching materials; Damask’s class
notes; Damask’s earlier versions and drafts of these course
materials; any past complaints made to Damask or the
College about Damask’s course; documents bearing on the
College’s initial decision to condemn Damask’s actions, and
its about-face on that issue; documents related to the
College’s own investigation into the events giving rise to this
case; and so on.

    The majority tells us that “[t]he context of this case
weighs heavily against any argument that the violation is
obvious.” Maj. Op. 34. But it then in the name of qualified
immunity prevents Sabra from conducting even basic
document discovery into the surrounding context. That has
it backwards. There is no basis to conclude that the relevant
documents in this case are only the ones Sabra himself had
on hand and attached to his complaint (something Sabra was
not even required to do in the first place).

    A second “unique feature” of this case, the majority tells
us, is that because Damask’s class “was a self-guided course
administered entirely online,” “we have before us the
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.           89

universe of evidence we might wish to consider in resolving
Damask’s claim of qualified immunity.” Maj. Op. 46.
Indeed, the majority goes so far as to conclude, “[d]iscovery
would not serve to sharpen our understanding of the factual
picture in this case.” Maj. Op. 46. These suggestions are
unfounded.

    I have explained above why it is folly to assume that
there are no other relevant documents besides the ones Sabra
attached to his complaint. But the majority’s secondary
suggestion that this case could be decided purely on a paper
record is entirely at odds with the basic discovery practices
authorized in federal court, most notably oral testimony. See
Fed. R. Civ. P. 30. Our system places a premium on putting
witnesses under oath and requiring them to explain their
actions. Damask’s under-oath explanation for his quiz
questions is at present among the most critical information
we are lacking. There is thus nothing “unique” about the fact
that Sabra’s claims are based in documentary evidence.
Many legal claims can be so described. What is unique,
however, is the majority’s insistence that we can make
factual judgments at the pleading stage, without any of the
basic discovery that the Federal Rules allow.

    The majority nonetheless concludes that “[e]ven if
discovery somehow were to produce additional relevant
evidence”—which it of course would—we can still cut off
this lawsuit at the pleading stage because “[n]o matter what
we might learn in discovery . . . Damask would still be
shielded by qualified immunity.” Maj. Op. 46. It is not
apparent to me how the majority can say this. The majority
does not dispute that Sabra has pleaded a Free Exercise
Clause violation. The majority asserts that it has “found no
cases that would have put Damask on notice that his conduct
might be unconstitutional under the circumstances here.”
90    SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.

Maj. Op. 46–46. But no specific case on point is required.
See, e.g., Sharp v. City of Orange, 

871 F.3d 901

, 911 n.7 (9th
Cir. 2017); Browder v. City of Albuquerque, 

787 F.3d 1076

,
1082–83 (10th Cir. 2015) (Gorsuch, J.). And, in any event,
there are legions of cases establishing the basic Free
Exercise clause principle that the state cannot condition a
benefit or impose a penalty based on a person’s adherence or
non-adherence to a religious belief.

    The majority replies that “we have never held under
comparable circumstances that a test requiring students to
select answers in conflict with their personal religious
convictions (or risk losing points) imposes a substantial
burden on religious practice.” Maj. Op. 39–40. But that
understates Sabra’s allegations substantially. What we have
here is a student who, on the face of a highly constrained
multiple-choice exercise, was seemingly required to affirm
a particular view of his religion or else receive a lower grade,
with a problematic PowerPoint presentation as our primary
context and, as of yet, no evidence of the instructor’s
objectives.

    The majority’s reliance on Wood v. Arnold, 

915 F.3d 318

(4th Cir. 2019), which the majority describes as “the most
instructive authority” it has identified, only underscores how
the majority errs in affirming the denial of qualified
immunity at the motion to dismiss stage. Maj. Op. 40. In
Wood, a public high school taught a unit on the “Muslim
World” in a world history course, during which students
were asked to complete a worksheet covering the “beliefs
and practices” of Islam. 915 F.3d at 312–13. This
assignment specifically appeared under the heading “Beliefs
and Practices: The Five Pillars.” 

Id. at 317

. One fill-in-the-
blank question asked students to fill in the underlined words:
      SABRA V. MARICOPA CNTY. CMTY. COLL. DIST.            91

“There is no god but Allah and Muhammad is the messenger
of Allah.” 

Id.

 at 312–13.

    Wood does not remotely support awarding Damask
qualified immunity at the motion to dismiss stage. As the
majority concedes in a footnote, Wood did not even involve
a Free Exercise claim. Maj. Op. 40 n.10. The core theory
Sabra advances was thus not even discussed in Wood. The
facts of Wood also bear no material resemblance to
Damask’s quiz questions and pejorative PowerPoint slides
because, among many other reasons, the disputed
assignment in Wood contained clear context (“Beliefs and
Practices: The Five Pillars”) confirming that students were
merely being asked to “identify the tenets of Islam.” 

915 F.3d at 317

. The context here is hardly so conclusive, and
instead raises even more questions.

    Finally, and perhaps most critically, Wood was resolved
at the summary judgment stage. 

Id. at 313

. Although the
plaintiff’s allegations in Wood pale in comparison to
Sabra’s, the plaintiff in Wood had the opportunity to conduct
discovery—which the majority improperly denies Sabra.
Wood thus if anything confirms that the majority acts
prematurely in letting Damask out of this case at the pleading
stage. Unfortunately, this is only of a piece with the
majority’s improper determination to prevent the further
exploration of highly problematic allegations involving
important matters of religious faith.

   I respectfully dissent.