Comment Clearly Established: a useful standard. (Score 5, Informative) 775
I am a lawyer, and about a third of my cases are representing state employees, and about a third of those involve cases with a "clearly established" defense, though I practice mostly in the Fourth Circuit, not the Ninth.
The "clearly established" standard is a way for courts to keep these kinds of suits from dinging innocent state employees. Basically, not only does the employee have to violate someone's right, but it has to have been pretty much unreasonable for the employee to think ze wasn't violating that right. Here, in fact, the panel didn't even hold that the kid had a right not to have this stuff said to him. So this case won't be precedent for future cases to reach back and say, "Well, as of the time the Corbett opinion was issued, the right not to have a teacher make fun of your religious beliefs was clearly established."
There are several other possible doctrines for protecting an employee in such a situation, and they're all salutary.
The "clearly established" standard is a way for courts to keep these kinds of suits from dinging innocent state employees. Basically, not only does the employee have to violate someone's right, but it has to have been pretty much unreasonable for the employee to think ze wasn't violating that right. Here, in fact, the panel didn't even hold that the kid had a right not to have this stuff said to him. So this case won't be precedent for future cases to reach back and say, "Well, as of the time the Corbett opinion was issued, the right not to have a teacher make fun of your religious beliefs was clearly established."
There are several other possible doctrines for protecting an employee in such a situation, and they're all salutary.