2nd Summary Judgment In ACSI v. Stearns

On Friday, August 8, 2008, Judge Otero entered summary judgment against plaintiff ACSI in the Christian course evaluation case.  This resolved the remaining claims made by ACSI; the judge had entered partial summary judgment back in late March.  In a subsequent posting, I will analyze the earlier summary judgment.  This post is for last Friday’s ruling.

I have uploaded the ruling from the PACER online casefile (the only change being to rename the computer file) for the reader’s convenience.



The first ruling established that UC policies did not, on their face, violate the students’ constitutional rights.  This means that their policies, as written, did not in of themselves cause a violation.  These policies included the form rejection of the BJU and A Beka biology books and the UC Position statement, and were thus upheld. However, UC didn’t originally move for summary judgment on the as-applied claims.  The reason for this became apparent in the documents following the partial summary judgment – ACSI had not developed their case on the as-applied claims sufficiently for UC to make a substantive response.  The parties stipulated (essentially, a joint motion from both UC and ACSI) that UC should be allowed to make a motion for summary judgment after ACSI presented the missing information.

In an as-applied challenge, the individual actions are scrutinized.  Therefore, in order to establish a defense, UC needed to know which actions were being challenged – here, the individual course rejections.  ACSI had failed to provide that information prior to the March ruling, focusing all their efforts on the facial challenge.  This neglect was to have disastrous consequences for the plaintiffs.


UC raised several issues that would be dispositive of some or all of the claims.  First, that ACSI did not have standing to raise as-applied challenges to all but four of the 41 class rejections, as the applications came from ACSI schools not participating in the lawsuit, nor had the challenges been timely issued.  ACSI withdrew three of those from consideration.  ACSI maintained that they held associational standing for all other course rejections, that UC had waived their standing objection by failing to raise it in a timely manner, and that they had previously identified the courses in question.

Next UC identified the two means by which an as-applied challenge of a course rejection could be analyzed.  One is whether there was animus.  UC contended that ACSI had waived any claim of animus in the first summary hearing.  ACSI replied that they hadn’t meant to use “animus” in that context.

The other analysis is whether the course rejection was reasonable.  The plaintiff has a high burden of proof to establish an unreasonable rejection.  UC maintained that the rejections were reasonable, and that the plaintiffs had failed to allege any credible fact that would establish that the rejections were unreasonable.  ASCI responded by having its expert witnesses write supplemental reports, which UC objected to as untimely.



Standing is a constitutional requirement for all cases, so the judge analyzed the standing claim first.  Normally, objections to standing cannot be waived, but there is a category of standing that can be waived, as these requirements are created by the courts in addition to constitutional standing, known as prudential standing.  Here the judge ruled that the objection was to prudential standing, and could be waived, but that it had not been waived because ACSI had not identified the courses until the motion.  The judge then considered whether ACSI held associational standing.

Associational standing is when an organization represents the rights of individual members who are not part of the lawsuit.  In facial challenges, it is easy to meet the requirements, since the policies as written would necessarily affect the members of the association in similar ways.  However, as-applied challenges pose a much tougher, though not impassible barrier.  The individualized nature of the rejections means that different schools may be treated differently.  One of the primary functions of standing is to assure that the plaintiffs are asserting their own rights, not that of others.  After careful consideration, the judge ruled that the fact that each course application is handled individually, not in a group context, means that ACSI does not have standing for 33 of the 34 courses not submitted by the school participating in the lawsuit.  The judge did not rule on the non-Calvary Chapel course included in the original complaint.

As is typical for district court judges, Judge Otero continued to analyze the standing objection despite having ruled that the standing requirement had not been met.  Next up was whether ACSI had made as-applied claims for the 3433 courses not specifically mentioned in the complaint.  He found that although ACSI had mentioned the existence of those courses in response to an interrogatory, the reply was not specific enough as there were about 175 courses submitted by ACSI schools during the time period.  Additionally, plaintiffs had not provided any argument for their as-applied claims.

Finally, he evaluated the expert witness supplemental reports.  The discovery deadline expired in July 2007, whereas these affadavits were signed in mid-June 2008, nearly eleven months after the deadline.  The Federal Rules of Civil Procedure requires that discovery be closed 90 days before the trial date.  Although the trial had been continued, the discovery period had not been continued.  Therefore, the judge ruled that the additional expert witness reports were time-barred and not admissible.  At the hearing, the plaintiffs response when asked why they had not had the expert witnesses examine the courses for reasonableness was that they never expected the Court to reach the as-applied claims, so they had not prepared.  This was a fatal omission on their part, as they can no longer supplement the record without substantial justification.  Since the expert witness did not previously argue that the courses were unreasonable, there was no admissible evidence that the courses were in fact unreasonable.

On any of those three bases the 3433 courses not specifically mentioned in the Complaint could be, and were, summarily dismissed.


The non-participating schools dismissed, there remained only the claims on the fourfive courses mentioned in the Complaint.  As mentioned before, there are two means of analysis, reasonableness and animus.  Turning to animus first, the judge declined to find whether plaintiffs had waived animus, instead ruling that they had not supported an argument for animus.  What they had done, rather, was to argue that the rejections were unreasonable and therefore demonstrated animus, there being no other explanation for the unreasonable rejection.  But as the judge noted, animus analysis is only done when the action taken was otherwise reasonable, but was specifically undertaken out of animus.  There is no need to determine animus if the rejections were unreasonable.


At long last, the judge turned to the meat of the motion: whether the rejections were reasonable.  If the plaintiffs could raise a genuine issue of material fact, the case would proceed to trial.  If not, the judge would rule in favor of UC and the case would be over.  And once again, ACSI’s lack of preparation was their undoing.  The untimelysupplemental expert witness reports excluded as untimely, ACSI had no admissible evidence that any of the fourfive courses were unreasonably rejected.  Lacking that basis, ACSI’s case had absolutely no merit, and the judge quickly and ruthlessly tore through the tissue-thin veneer they tried to paint over their deficiencies.


By no means is this case over.  The ink had barely dried on the judgment when ACSI appealed to the 9th Circuit Court.  I will continue to monitor this case as it progresses through the court system.


Edited August 25 (strikethoughs and bold underlines) to correct error noted by Larry Fafarman, whose comment was caught in automatic spam filter


24 Responses to “2nd Summary Judgment In ACSI v. Stearns”

  1. Paula Hall Says:

    Kevin —

    Thanks for the detailed analysis. I agree this is not over. As long as any case can provide an excuse to claim “religious discrimination,” the fundies will get their funding.

    I think this is just political correctness coming back to bite secular liberals in the ass. “Discrimination”-as-evil has been swallowed hook, line and sinker in our culture generally — so any nutcase that cries “discrimination!” has a ready-made audience in the media. Provided to them by secular liberals who insist that freedom of association equals discrimination. (YMMV.)

  2. Don Says:

    Paula: What is a “secular liberal,” and what does freedom of association have to do with this case?

  3. richCares Says:

    so being against bad biology is “religious discrimination”, that’s news to me. If you wish to believe in bad science, go ahead but don’t make me accept your ignorance as being vaild!

  4. ASCI v. Stearns - Education wins - Religion, God, Politics, Social Sciences Forum - ConflctingViews.com Says:

    […] v. Stearns – Education wins 2nd Summary Judgment In ACSI v. Stearns Missing The Point What’s this case about? Clicky this link to find out: 2nd Summary Judgment In ACSI v. […]

  5. big kahuna Says:

    Paula Hall says: “I think this is politcal correctness coming back to bite secular liberals in the ass.” Methinks Paula and her fundie friends feel like they have broken out in little assholes and shit all over themselves.

  6. big kahuna Says:

    The big kahuna comment also applies to the asswipes at the Disco Institution. LONG LIVE MEDVED!!!

  7. Lou FCD Says:

    Good to see you getting back in the groove, Kevin.

    Homerun in your fist at bat.

  8. John Kingman Says:

    “Viewpoint Discrimination” is also the approach being taken by the Institute for Creation Research in their fight to win the right to grant Masters of Science degrees in Science Education in Texas. See http://www.icr.org/academicfreedom/ for their rationale.
    (The viewpoint at issue being creation science vs evolution, of course, but they don’t want to admit the religious nature of their curriculum.)
    “Viewpoint Discrimination” also seems to be an undercurrent of the latest “academic freedom” bills that have been popping up around the country, thanks to the Disco ‘Tute.

  9. Peter Vesuwalla Says:

    Do you think the parents of students deemed inadmissible by the U of C have a case against ASCI?

    From a consumer protection standpoint, is it really up to a parent to actively investigate whether a private school’s curriculum meet University acceptance standards, or should the school be required to disclose such information to the parents before the child is enrolled?

    Along a similar line, can the students themselves take any legal recourse against the schools or their parents for a process of indoctrination over which they themselves took no part but in the end suffer all the consequences?

  10. Matt Silb Says:

    Are these just terrible lawyers or is this somehow a strategy? They failed on so many issues, so far from the core of the case that the judge never got to rule on any of the meaningful stuff here. Or maybe they have reasonably good lawyers who know that they will lose on any substantive point and so avoid those.

  11. W. Kevin Vicklund Says:

    That’s an interesting question, Peter, but it assumes some facts that aren’t true. Calvary Chapel Christian School, the only ACSI school to participate in the lawsuit, had a full complement of approved courses. In particular, there were multiple approved courses in each of the categories represented by the four courses named in the Complaint. The students had available to them the means by which to become admissible, and taking the proposed and rejected courses would not have automatically disqualified them, so long as they made up for the deficiency by a myriad of acceptable alternatives (such as taking an approved course in addition, taking a course at a community college, scoring well on an appropriate standardized test, etc.).

    In other words, the students sued because they wanted to take an unapproved course, when an approved course was available to them. It is unlikely that they would have a basis upon which to sue ACSI or their parents (also, note that one of the students was not a minor), barring the existence of some sort of contract that the school had drafted guaranteeing that the proposed course would be approved for admission in the UC system.

    (question and answer cross-posted with The Questionable Authority)

  12. Peter Says:

    I look forward to reading more and keeping my readers up to date. Rock it.

  13. The morality of defection · Says:

    […] & Bags News » News News 2nd Summary Judgment In ACSI v. Stearns2008-08-13 14:43:42Requirement so the standing that can be waived, but there is a constitutional […]

  14. U.C. wins ACSI case « Tony’s curricublog Says:

    […] https://missingthepoint.wordpress.com/2008/08/10/2nd-summary-judgment-in-acsi-v-stearns/ Possibly related posts: (automatically generated)Texas Supreme Court immunizes exorcismLaw and religion and malpractice in the classroom: Teacher, Parent sitesGlobal and trasnational law schoolsUCC – University of California Student Exchange Programme This entry was written by Tony Whitson and posted on August 12, 2008 at 3:48 pm and filed under Constitutional law, Education, Education Law & Policy, Evolution, Higher Education, Religion, Science, blog, creationism, jaw. Bookmark the permalink. Follow any comments here with the RSS feed for this post. Post a comment or leave a trackback: Trackback URL. « “Behold: the atheist’s nightmare” (a banana) [ video ] #1 Genesis expert offers help for Louisiana science education » […]

  15. larryfarma Says:

    Kevin, your following statement (from the “reasonableness” section of your post) is wrong:

    –“The untimely expert witness reports excluded as untimely, ACSI had no admissible evidence that any of the four [actually five] courses were unreasonably rejected. “–

    The judge accepted plaintiffs ‘ expert witness reports on those five courses as timely and used those reports in ruling on those courses (pages 12-18 of the opinion).

    A review of the final decision is now on my blog at the top of a post-label list of ten posts about the case — see


  16. W. Kevin Vicklund Says:

    I had been waiting for Larry to note my error here before making my correction, so that he could take proper credit. Unfortunately, his comment was flagged by WordPress’s anti-spam filter and so was delayed in posting – I am not notified by WordPress when there is spam in the queue (a relief, because I get 10 times as much spam as I do real messages). I am leaving the other typos alone for now.

  17. larryfarma Says:

    Kevin, you lousy dunghill, stop messing up my blog with your crap.

    Just giving you a taste of your own medicine.

  18. Lou FCD Says:

    Good ol’ Larry. Always good for a laugh.

  19. Larry Fafarman Says:


  20. Larry Fafarman Says:


  21. Voice in the Wilderness Says:

    I don’t know why Larry is bothering to tell you to get off of his blog. It is now totally censored as Larry is terrified by conflicting statements.

    You are always kicking Larry’s ass. That’s why he doesn’t like you.

  22. JamesDX Says:

    Anyone know how to do things like this?

  23. Leonel Says:


  24. Quality Education Wins Again in the California Creationist Case | The Questionable Authority Says:

    […] and quality education is the decisive winner. Kevin Vicklund has Judge Otero's decision, as well as a very nice analysis of the ruling up over at his blog. If you've been following the case closely, you can probably jump right over […]

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