FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOHAMED SABRA; COUNCIL ON 

AMERICAN-ISLAMIC RELATIONS OF 

ARIZONA,

Plaintiffs-Appellants,

v.

MARICOPA COUNTY COMMUNITY 

COLLEGE DISTRICT; NICHOLAS 

DAMASK, in his official and 

individual capacity,

Defendants-Appellees.

No 20-16774

D.C. No.

2:20-cv-01080-

SMB

OPINION

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 AmericanIslamic 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-todismiss 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-todismiss 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 Hadith1 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, CAIRAZ 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 “preexisting 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 nondecisional 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 alKidd, 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 selfguided 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 [multiplechoice] 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 antiMuslim 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 blackand-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 multiplechoice 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-replybrief 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 

Keatesin 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-theblank 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.