Peloza

concurring in part and dissenting in part:

I am in agreement with the majority’s resolution of John Peloza’s Establishment Clause and Due Process Clause claims. However, because I believe we can dismiss Peloza’s free speech claims only by turning a deaf ear to the procedural posture of this ease, I respectfully dissent from parts I.B and II of the majority opinion.

I

Schoolteacher John Peloza seeks a declaratory judgment permitting him to “respond[ ] to student-initiated inquiries ... regarding religion” during contract time. The majority opinion concludes that if Peloza’s discussions would constitute an establishment of religion, the District may permissibly limit those discussions, even though such limitations restrict Peloza’s free speech. With this I have no quarrel. But the majority’s premise is that any discussions Peloza might have do constitute such an establishment, and I am unpersuaded that we may reach such a conclusion in the case’s present posture..

This is an appeal from the granting of a Rule 12(b)(6) motion. As such, we are not permitted to affirm dismissal of the complaint “unless it appears beyond doubt that plaintiff can prove no set of facts in support of…

Per Curiam; Partial Concurrence and Partial Dissent by Judge POOLE.

John E. Peloza is a high school biology teacher. He sued the Capistrano Unified School District and various individuals connected with the school district under 42 U.S.C. § 1983 . He alleges in his complaint that the school district requires him to teach “evolutionism” and that evolutionism is a religious belief system. He alleges this requirement violates his rights under the (1) Free Speech Clause of the First Amendment; (2) Establishment Clause of the First Amendment; (3) Due Process Clause of the Fourteenth Amendment; and (4) Equal Protection Clause of the Fourteenth Amendment.

He also alleges the defendants conspired to violate these constitutional rights and attempted by harassment and intimidation to force him to teach evolutionism. He alleges they did this because they have a class-based animus against practicing Christians, a class of which he is a member, in violation of 42 U.S.C. § 1985 (3).

He also alleges state law claims for violation of California’s Tom Bane Civil Rights Act, Cal.Civ.Code § 52.1 (which provides a cause of action for interference with an individual’s enjoyment of rights secured…