Creation Science School Loses Round in Suit Against State Officials

In a partial victory for state education officials, a federal judge Tuesday dismissed a Christian graduate school’s civil suitagainst the state Department of Education, ruling that state agencies are immune from suit under the federal Constitution.

But Judge Rudi M. Brewster said that, if the tiny East San Diego County school, the Institute for Creation Research, amends its complaint, its suit could go forward against Superintendent of Public Instruction Bill Honig and Joseph Barankin, an assistant to Honig who was director of the state’s Private Postsecondary Education Division when the suit was filed in April, 1990.

The suit alleges that Honig and Barankin violated the school’s constitutional rights when they sought to strip it of its license to grant master of science degrees. Honig has said that the creationist institute--which teaches, among other things, that the theory of evolution is a myth--is a religious school, not a scientific one.

Under technical legal rules of procedure, Brewster said that, at least for now, ICR’s suit could only proceed against Honig and Barankin as individuals, not as state employees. That would mean that the state could not be liable for any action the two men took.

Generally, Brewster said, he believes state employees should be protected from legal challenges.

“Public servants . . . make modest incomes,” Brewster said. “People of quality would never take jobs like that if they were vulnerable to suits all the time.”

However, presented with an unusual legal argument that likened the private Santee-based school to former New York Congressman Adam Clayton Powell, Brewster said he would consider altering his ruling to allow ICR to sue Honig and Barankin in their official capacities as state administrators.

Wendell R. Bird, a lawyer for ICR, cited a 1969 U.S. Supreme Court ruling that said the U.S. House of Representatives had unconstitutionally excluded Powell from his seat in 1967 for alleged improper expenditures of government funds. The fact that Powell had already been returned to his seat by the time the court ruled, Bird argued, did not render Powell’s claim moot.

Brewster, who had suggested earlier in the hearing that ICR’s claim appeared moot, was apparently swayed by Bird’s analogy, noting that Powell--like ICR--had sued to clear his name.

“He wanted his name back,” said Brewster, who said he would study the Powell case and make a decision within 10 days. “They (ICR administrators) want their reputation back too, don’t they?”

In March, 1990, based on a recommendation from a state Board of Education evaluation team, Honig sought to revoke ICR’s license to operate because, he said, the institute’s physics, biology, geology and science education curriculum was not as rigorous as other comparable degree-granting institutions.

Then in November, Honig backed down, citing a technical flaw in the department’s evaluation criteria. He promised that no further action would be taken against ICR until Jan. 1. 1991, when a new 15-member state council took over the task of evaluating post-secondary schools like ICR.

ICR officials, whose student body now consists of about 20 graduate students, claim that the controversy surrounding the school has impugned its reputation and cost it students. They say they are seeking declaratory relief in federal court in the hopes of reestablishing their standing in academic circles.

But Gregory J. Roussere, the deputy general counsel for the Department of Education, said ICR’s motivations are less noble than that.

“They want this declaratory relief for one thing--to hammer the new council” that will eventually decide whether to revoke their license, Roussere said. He said that, if the school, which has never been forced to actually stop granting degrees, suffered any damage to its reputation, it has its own publicity efforts to blame.

“They were the ones sending out the press releases,” he said.