9th Cir.: school district can order teacher to take down posters with a religious message

The Ninth Circuit Court of Appeals held that a school district did not violate the Free Speech Clause, the Establishment Clause, or the Equal Protection Clause when it ordered a math teacher to remove religious posters from his classroom. Johnson v. Poway Unified School Dist., 2011 WL 4071974, No. 10-55445 (9th Cir. 2011). Judge Tallman, nominated by President Bill Clinton, wrote the opinion, joined by Judge Silverman, nominated by President Bill Clinton, and Judge Clifton, nominated by President George W. Bush.

Bradley Johnson, a math teacher in the Poway Unified School District, hung several posters on his classroom walls with phrases from various historical texts including the Declaration of Independence. The selected phrases contained religious content. One banner contained the phrases, “In God We Trust”, “One Nation Under God”, and “God Shed His Grace On Thee.” Concerned with the religious message of the banners and their emphasis on “God,” the school district ordered Johnson to take down the posters. Johnson filed a lawsuit claiming that the school violated his free speech rights and the Establishment Clause by ordering him to remove the banners. He further claimed that the school had violated the Establishment Clause and the Equal Protection Clause by allowing other displays with religious content, such as Tibetan Prayer flags and a poster with the lyrics to John Lennon’s Imagine, to remain on the walls of other teachers’ classrooms. The district court granted him summary judgment and enjoined the school district from interfering with Johnson’s displays. The school district appealed.

The Ninth Circuit first analyzed whether Johnson’s speech was protected by the Free Speech Clause. The district court had applied a forum-based analysis and reached the conclusion that Johnson’s speech was protected. However, the Circuit Court explained that where the government is regulating speech as an employer, forum based analysis does not apply. Instead, Pickering v. Bd. of Educ. Of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968), along with subsequent cases, provides a five part analysis for balancing individual speech rights with the government’s interests as an employer. See also Eng v. Cooley, 552 F.3d 1062, 1070-72 (9th Cir. 2009). Under the five step sequential analysis from Pickering and Eng, a plaintiff must satisfy each step, and the failure to satisfy any one step obviates the need to apply any subsequent step. Here, the court accepted that the first step, “whether the plaintiff spoke on a matter of public concern” might be satisfied. Johnson’s signs sent a religious message, and “speech concerning religion is unquestionably of inherent public concern.”

But Johnson failed to convince the court that he should pass the second step, “whether the plaintiff spoke as a private citizen or public employee.” The court examined whether Johnson’s speech “owes its existence” to his position as an employee. Based on the record, the court held that Johnson was acting within the normal scope of his employment when he engaged in the speech at issue. When he put posters on the walls of the walls of the classroom where he was assigned to teach math classes, he was indisputable acting as a teacher and an employee of the government. Johnson, the court concluded, spoke as a public employee. Because he failed the second step of the Pickering test, his speech was not protected by the First Amendment.

The court next applied the Lemon test to Johnson’s claim that the school district had violated the Establishment Clause. Lemon v. Kurtzman, 403 U.S. 602 (1971). The court concluded that the school district had not violated the clause by ordering Johnson to remove the posters. The school ordered the removal so that it might avoid violating the Establishment Clause, and the government may curtail its own speech to maintain the religious neutrality that the Establishment Clause requires. The Ninth Circuit dismissed Johnson’s claim on this ground.

The court also dismissed Johnson’s claim that the school district violated the Establishment Clause by allowing other displays with religious content to remain on the walls of the school. Applying Lemon, the court found that the other displays, including Tibetan prayer flags that the science teacher kept on her wall, were not intended to convey religious messages and were not understood by teachers or students as conveying any religious messages. The use of the displays was also not primarily religious and did not create excessive entanglement with religion.

Johnson’s final claim asserted that the school denied him equal protection of the law when it ordered him to remove his posters but allowed other posters with some religious content to remain up. According to the court, Johnson had no individual right to speak for the government, and therefore he could not have suffered a violation of the Equal Protection Clause. The court ordered Johnson’s equal protection claim to be dismissed as well.

Nate Vogel, University of Pennsylvania Law School, class of 2011


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