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BRADLEY JOHNSON, Plaintiff, v. POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM, LINDA VANDERVEEN, ANDREW PATAPOW, TODD GUTSCHOW, and PENNY RANFTLE, all individually and in his or her official capacity as a Member
of the Board of Education for the Poway Unified School District; DR. DONALD A. PHILLIPS, individually and in his official capacity as Superintendent of the Poway Unified School District; WILLIAM R. CHIMENT, individually and in his official capacity as Assistant Superintendent of the Poway Unified School District; and DAWN KASTNER, individually and in her official capacity as Principal, Westview High School,
Poway Unified School District, Defendants. CASE NO. 07cv783 BEN (NLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. Ct. Pleadings 212047; 2007 U.S. Dist. Ct. Pleadings LEXIS 25029 September 21, 2007 Complaint
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s) COUNSEL: [*1] Charles S. LiMandri, Esq. (California State Bar No. 110841), LAW OFFICES OF CHARLES S. LiMANDRI, Rancho Santa Fe, California, Robert J. Muise, Esq. * (Michigan State Bar No. P62849), THOMAS MORE LAW CENTER, Ann Arbor, Michigan, * Admitted pro hac vice, Counsel for Plaintiff, Bradley Johnson. JUDGES: Hon. Roger T. Benitez TITLE: First Amended Complaint TEXT: Plaintiff Bradley Johnson, by and through his undersigned attorneys, brings this First Amended Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof alleges the following upon information and belief:
INTRODUCTION 1. This case seeks to vindicate fundamental constitutional rights. It is a civil rights action brought pursuant to the First and Fourteenth Amendments to the United States Constitution, the California Constitution, and 42 U.S.C. § 1983, challenging the unconstitutional acts, policies, practices, and/or customs of Defendants as set forth in this First

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Amended Complaint.
2. Plaintiff seeks a declaration that Defendants have deprived him of his constitutional rights, a permanent injunction enjoining the enforcement of Defendants' [*2] viewpoint-based policy of banning certain messages as applied to Plaintiff's speech, and an award of nominal damages for the past loss of Plaintiff's constitutional rights. Plaintiff also seeks an award of reasonable costs of litigation, including attorneys' fees and expenses, pursuant to 42 U.S.C. § 1988, California Code of Civil Procedure § 1021.5, and other applicable law.
JURISDICTION AND VENUE
3. This action arises under the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and the California Constitution. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has supplemental jurisdiction over the state law claims in this case pursuant to 28 U.S.C. § 1367(a).
4. Plaintiff's claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. Plaintiff's claim for nominal damages is made pursuant [*3] to 42 U.S.C. § 1983 and other applicable law.
5. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiff's claims occurred in this district.
PLAINTIFF
6. Plaintiff Bradley Johnson is a public school math teacher at Westview High School in the Poway Unified School District. He is a Christian and has taught math in the school district for 30 years.
DEFENDANTS
7. Defendant Poway Unified School District (hereinafter "School District") is a public entity established and organized under, and pursuant to, the laws of California with the authority to sue and be sued in its own name.
8. Defendant Jeff Mangum, at all times relevant herein, was a member of the Board of Education for the School District acting under color of state law. The Board of Education is the governing body of the School District and is responsible for creating, adopting, and implementing its policies, practices, and/or customs, including the challenged policy, practice, and/or custom set forth in this First Amended Complaint. Defendant Mangum is sued both individually and in his official capacity. [*4]
9. Defendant Linda Vanderveen, at all times relevant herein, was a member of the Board of Education for the School District acting under color of state law. Defendant Vanderveen is sued both individually and in her official capacity.
10. Defendant Andrew Patapow, at all times relevant herein, was a member of the Board of Education for the School District acting under color of state law. Defendant Patapow is sued both individually and in his official capacity.
11. Defendant Todd Gutschow, at all times relevant herein, was a member of the Board of Education for the School District acting under color of state law. Defendant Gutschow is sued both individually and in his official capacity.
12. Defendant Penny Ranftle, at all times relevant herein, was a member of the Board of Education for the School District acting under color of state law. Defendant Ranftle is sued both individually and in her official capacity.
13. Defendant Donald A. Phillips, at all times relevant herein, was the Superintendent of the School District acting under color of state law. Defendant Philips is responsible for creating, adopting, and implementing School District policies, practices, and/or customs, including [*5] the challenged policy, practice, and/or custom set forth in this First

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Amended Complaint. Defendant Phillips is sued both individually and in his official capacity.
14. Defendant William R. Chiment, at all times relevant herein, was the Assistant Superintendent of the School District acting under color of state law. Defendant Chiment is responsible for creating, adopting, and implementing School District policies, practices, and/or customs, including the challenged policy, practice, and/or custom set forth in this First Amended Complaint. Defendant Chiment is sued both individually and in his official capacity.
15. Defendant Dawn Kastner, at all times relevant herein, was the Principal of Westview High School in the School District acting under color of state law. Defendant Kastner is responsible for creating, adopting, and implementing School District policies, practices, and/or customs, including the challenged policy, practice, and/or custom set forth in this First Amended Complaint. Defendant Kastner is sued both individually and in her official capacity.
STATEMENT OF FACTS
16. It has been "the unmistakable holding" of the United States Supreme Court for more than 50 [*6] years that neither "students [nor] teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Defendants' viewpoint-based restriction on Plaintiff's speech violates this well-established principle of law.
17. Plaintiff is a respected public school teacher who has been teaching in the School District for 30 years. Plaintiff was and continues to be a math teacher in the School District. He presently teaches math at Westview High School. During his 30 years of teaching, Plaintiff has taught math at 3 different high schools in the School District.
18. For approximately 25 years, Plaintiff had continuously displayed, without objection, on his classroom walls various banners that reflect the religious heritage and history of our Nation. Plaintiff had the banners made to order by a private company and purchased them with his personal funds.
19. The classroom in which the banners were displayed is assigned to Plaintiff; it is his classroom for "homeroom" and academic classes. It is also the classroom he uses for non-curricular and extra-curricular activities. [*7]
20. As a matter of School District policy, practice, and/or custom, Plaintiff has discretion and control over the messages displayed on his classroom walls; no other teacher is permitted to display materials on these walls without Plaintiff's permission. This has been the policy, practice, and custom in the School District for at least the past 30 years.
21. Pursuant to School District policy, practice, and/or custom, teachers are permitted to display in their classrooms various messages and other items that reflect the individual teacher's personality, opinions, and values, as well as messages relating to matters of political, social, or other similar concerns so long as these displayed items do not materially disrupt school work or cause substantial disorder or interference in the classroom. As a result of this School District policy, practice, and/or custom, the classroom walls serve as an expressive vehicle for teachers to convey non-curriculum related messages.
22. Pursuant to this long-standing policy, practice, and/or custom, teachers have displayed and continue to display in their classrooms such non-educational and non-curricular materials as posters of rock bands, such [*8] as Nirvana and The Clash, posters of professional athletes, travel posters, family photographs, various non-student artwork, including posters of such artwork, and even a collection of stuffed animals. Teachers have been permitted to display posters with Buddhist and Islamic messages and Tibetan prayer flags. And teachers have displayed nature pictures and other matters promoting the environment. The displayed items contain messages that express the personal views, interests, or opinions of the teachers and/or relate to matters of political, social, or other similar concerns. The teachers control the messages conveyed by their displays. The teachers' displays do not constitute government speech nor the speech of the School District.
23. Defendants' policy, practice, and/or custom of permitting teachers to display messages, including non-curricula

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messages, on their classroom walls creates a forum for the teachers to engage in expressive activity. Plaintiff's banners were displayed pursuant to this policy, practice, and/or custom. Plaintiff's banners were not displayed pursuant to any of his official duties as a teacher. Plaintiff did not use the banners during any classroom [*9] session or period of instruction. Plaintiff's banners were not expressing a message on behalf of the School District.
24. Plaintiff's banners contain the following historical phrases: "In God We Trust," the official motto of the United States; "One Nation Under God," the 1954 amendment to the Pledge of Allegiance; "God Bless America," a patriotic song considered to be the unofficial national anthem of the United States; "God Shed His Grace On Thee," a line from "America the Beautiful," a popular patriotic song; and "All Men Are Created Equal, They Are Endowed By Their Creator," an excerpt from the preamble to the Declaration of Independence.
25. Plaintiff displayed two such banners in his classroom, along with other items, including photographs of nature scenes and national parks and pictures of his family.
26. Plaintiff's first banner, which is red, white, and blue, depicting the colors of our national flag, includes the phrases "In God We Trust," "One Nation Under God," "God Bless America," and "God Shed His Grace On Thee." Each phrase appears on a separate line and could be displayed individually. Plaintiff continuously displayed a paper version of this banner for approximately [*10] 8 years, and he continuously displayed the present version, which is made of more durable material, for approximately 17 years. The present version is an exact replica of the paper version. Therefore, the message of this banner was displayed continuously for approximately 25 years.
27. Plaintiff's second banner includes the phrase "All Men Are Created Equal, They Are Endowed By Their Creator." This banner was continuously displayed for approximately 17 years.
28. Each banner measures approximately 7 feet long by 2 feet wide and was continuously displayed in a non-obstructive manner. Plaintiff's banners do not contain any pictures or symbols.
29. "In God We Trust" is the official motto of the United States. A law passed by Congress and signed by the President on July 30, 1956 approved a joint resolution of Congress that declared "In God we trust" the national motto of the United States.
30. Our national motto was taken from the poem "The Star-Spangled Banner," written by Francis Scott Key in 1814, a verse of which reads:
"Then conquer we must, when our cause it is just, And this be our motto-'In God is our Trust.'"
Key's poem was later adapted as our national anthem. [*11]
31. The government's use of the phrase "In God We Trust" has a long history in this country. In 1865, Congress first authorized the National Mint to include the phrase on certain coins, and in 1908, Congress made its inclusion mandatory. In 1955, the phrase was placed on all of our currency, and one year later it became our national motto. "In God We Trust" appears above the Speaker's Chair in the United States House of Representatives and above the main door of the United States Senate chamber.
32. On July 27, 2006, President George W. Bush issued a proclamation officially recognizing the 50th anniversary of our national motto, stating, in part, "On the 50th anniversary of our national motto, 'In God We Trust,' we reflect on these words that guide millions of Americans, recognize the blessings of the Creator, and offer our thanks for His great gift of liberty. . . . As we commemorate the 50th anniversary of our national motto and remember with thanksgiving God's mercies throughout our history, we recognize a divine plan that stands above all human plans and continue to seek His will."
33. In 1863, at Gettysburg, President Abraham Lincoln stated, "[T]hat we here highly resolve [*12] that these dead

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shall not have died in vain-that this nation, under God, shall have a new birth of freedom-and that government of the people, by the people, for the people shall not perish from the earth."
34. In 1942, Congress enacted the Pledge of Allegiance, which was amended in 1954 to officially include the phrase "under God." Then President Dwight David Eisenhower said this about adding "under God" to the Pledge: "In this way we are reaffirming the transcendence of religious faith in America's heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country's most powerful resources in peace and war." Students in the School District recite the Pledge of Allegiance on a daily basis.
35. In 2002, Congress passed legislation that made extensive findings about the historic role of religion in the political development of our Nation and reaffirmed the reference to "one Nation under God" in the text of the Pledge, as well as reaffirming that "God" remains in our National motto.
36. The preamble to the Declaration of Independence states as follows: "We hold these truths to be self-evident, that all men are created equal, that [*13] they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The Declaration of Independence is our Nation's founding document.
37. "God Bless America" is an American patriotic song written by Irving Berlin in 1918 and later revised by him in 1938. It is often considered the unofficial national anthem of the United States and frequently played at public events.
38. "God Shed His Grace on Thee" is a well-known verse from "America the Beautiful," an American patriotic song that rivals "The Star-Spangled Banner," the national anthem, in popularity. "America the Beautiful" is often played at public events.
39. During his 30 years of teaching in the School District, Plaintiff has had 7 different school principals, numerous school board members, superintendents, assistant superintendents, over 4,000 students and several thousand parents in his classroom where the banners were displayed. Prior to this year, Plaintiff had not received one complaint about the banners. Students, parents, faculty, board members, and teachers in the School District knew that Plaintiff posted the banners and that the message conveyed by [*14] the banners reflected Plaintiff's speech and not the speech of the School District.
40. Plaintiff's banners caused no disruption or interference in his classroom or anywhere else in the school.
41. Plaintiff's display of his banners has not interfered with the basic education mission of the School District.
42. Plaintiff's long-standing practice of displaying his banners came to an abrupt end when on or about January 23, 2007, Defendants ordered him to remove the banners based solely on the viewpoint of Plaintiff's message. Specifically, Defendant Kastner told Plaintiff that his banners were impermissible because they conveyed a "Judeo-Christian" viewpoint.
43. Defendants did not claim that Plaintiff's banners caused a material disruption or substantial disorder in the school or that they interfered with the curriculum. Defendants had no evidence that Plaintiff's banners caused any disruption or disorder. Defendants singled out Plaintiff for discriminatory treatment because of the viewpoint of his message.
44. In 1952, the United States Supreme Court acknowledged the following historical reality: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952). [*15] From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion's role in American life. Examples of this historical acknowledgment include Executive Orders recognizing religiously grounded National Holidays, such as Christmas and Thanksgiving, Congress directing the President to proclaim a National Day of Prayer each year, and the printing on our currency of the national motto, "In God We

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Trust."
45. As the United States Supreme Court acknowledged in Lynch v. Donnelly, 465 U.S. 668, 677-78 (1984):
One cannot look at even this brief resume [of historical examples of public religious expression] without finding that our history is pervaded by expressions of religious beliefs. . . . Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation, as Justice Douglas observed, governmental action has "follow[ed] the best of our traditions" and "respect[ed] the religious nature of our people." (quoting Zorach, 343 U.S. at 314).
46. Recognition of the role of God in our Nation's [*16] history and heritage is consistently reflected in United State Supreme Court decisions. The Court has acknowledged, for example, that religion has been closely identified with our history and government, and that the history of man is inseparable from the history of religion. Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound. As Justice O'Connor observed, "It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 35-36 (2004) (O'Connor, J., concurring in the judgment).
47. Efforts to suppress this recognition and historical acknowledgment, as demonstrated by Defendants' action here, are the antithesis of the value of religious tolerance that underlies the United States and California Constitutions. Cleansing our Nation's classrooms of our religious heritage and history and imposing viewpoint restrictions on speech to silence such expressions advance no legitimate educational purpose nor are they reasonably related to any legitimate [*17] pedagogical concerns.
48. Plaintiff's banners showed aspects of the history and heritage of our Nation. Accordingly, Plaintiff's banners touched on a matter of public concern and interest.
49. The classroom is peculiarly the "marketplace of ideas." As a result, the First Amendment does not tolerate governmental policies, practices, and or customs that cast a pall of orthodoxy over the classroom, such as Defendants' policy, practice, and/or custom at issue here, which prohibits Plaintiff from displaying his banners based on the viewpoint conveyed by the message.
50. It is a fact that religious people founded this Nation. As a result, references to God are common in our songs, mottoes, and slogans. To ban such references from public schools serves no valid educational purpose.
51. Plaintiff wants to display his banners. However, Defendants have prohibited him from doing so by applying School District policy so as to silence Plaintiff's speech based on its viewpoint.
52. Defendants claimed that Plaintiff's banners were impermissible because they convey a "Judeo-Christian" viewpoint. Additionally, Defendants acknowledged that Plaintiff's banners were not displayed as part of his official [*18] duties as a teacher nor were they part of the curriculum.
53. Defendants admit that it is entirely proper for Plaintiff to display materials, including posters and banners, "about the foundation of our nation" in this forum. Thus, the subject matter of Plaintiff's banners was permitted, and this subject matter was consistent with the purpose served by the forum. Defendants, however, intended by the removal of Plaintiff's banners to suppress ideas with which they disagreed, thereby imposing a viewpoint-based restriction on speech otherwise permitted in the forum.
54. In fact, Defendants' prohibition of Plaintiff's banners is contrary to the prescriptions of California Education Code § 51511, which specifically permits "references to religion" or "other things having a religious significance" in the public schools.

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55. As evidenced by Defendants' words and actions, Defendants are prohibiting Plaintiff from displaying his banners in his classroom by applying School District policy so as to impose a viewpoint restriction on Plaintiff's speech.
56. Defendants' policy, practice, and/or custom of banning messages with a "Judeo-Christian" viewpoint as applied to Plaintiff's banners serves [*19] no valid educational purpose, is not reasonably related to any legitimate pedagogical concern, and conveys a government-sponsored message of disapproval of and hostility toward religion, in particular, the Christian religion and our Nation's Judeo-Christian heritage. Moreover, Defendants' order to remove the banners was not curriculum related; Plaintiff was teaching and continues to teach his assigned mathematics curriculum.
57. Both the United States and California Constitutions prohibit government action that disfavors or is hostile toward religion, such as Defendants' actions as set forth in this First Amended Complaint.
58. Had Plaintiff not complied with Defendants' order to remove his banners, Plaintiff would have suffered adverse employment consequences, including a possible reprimand, suspension, or loss of employment.
FIRST CLAIM FOR RELIEF
Violation of Freedom of Speech under the First Amendment to the United States Constitution
59. Plaintiff hereby incorporates by reference all above-stated paragraphs.
60. By reason of the aforementioned policy, practice, custom, acts, and omissions, engaged in under color of state law, Defendants have imposed a viewpoint-based [*20] restriction on Plaintiff's speech in violation of the Free Speech Clause of the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
61. As a direct and proximate result of Defendants' violation of the Free Speech Clause of the First Amendment, Plaintiff has suffered irreparable harm, including the loss of his constitutional rights, entitling him to declaratory and injunctive relief and nominal damages.
SECOND CLAIM FOR RELIEF
Violation of the Establishment Clause of the First Amendment to the United States Constitution
62. Plaintiff hereby incorporates by reference all above-stated paragraphs.
63. By reason of the aforementioned policy, practice, custom, acts, and omissions, engaged in under color of state law, Defendants have violated the Establishment Clause of the First Amendment to the United States Constitution as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
64. Defendants' policy, practice, and/or custom of prohibiting [*21] Plaintiff's banners lacks a valid secular purpose, has the primary effect of inhibiting religion, and creates an excessive entanglement with religion in violation of the United States Constitution.
65. Defendants' policy, practice, and/or custom conveys an impermissible, government-sponsored message of disapproval of and hostility toward the Christian religion and our Nation's religious heritage. As a result, Defendants' policy, practice, and/or custom sends a clear message to Plaintiff that he is an outsider, not a full member of the political and school community and an accompanying message that those who disfavor the Christian religion and our Nation's Judeo-Christian heritage are insiders, favored members of the political and school community in violation of the United States Constitution.
66. As a direct and proximate result of Defendants' violation of the Establishment Clause of the First Amendment,

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Plaintiff has suffered irreparable harm, including the loss of his constitutional rights, entitling him to declaratory and injunctive relief and nominal damages.
THIRD CLAIM FOR RELIEF
Violation of the Equal Protection Clause of the Fourteenth Amendment to the United [*22] States Constitution
67. Plaintiff hereby incorporates by reference all above-stated paragraphs.
68. By reason of the aforementioned policy, practice, custom, acts, and omissions, engaged in under color of state law, Defendants have unconstitutionally deprived Plaintiff of the equal protection of the law guaranteed under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, in that Defendants, through their acts, policies, practices, and/or customs, prevented Plaintiff from expressing a message in a forum created by Defendants for such messages, thereby denying the use of this forum to those whose views Defendants find unacceptable.
69. As a direct and proximate result of Defendants' violation of the Equal Protection Clause of the Fourteenth Amendment, Plaintiff has suffered irreparable harm, including the loss of his constitutional rights, entitling him to declaratory and injunctive relief and nominal damages.
FOURTH CLAIM FOR RELIEF
Violation of Freedom of Speech under the California Constitution
70. Plaintiff hereby incorporates by reference all above-stated paragraphs.
71. By reason of the aforementioned policy, [*23] practice, custom, acts, and omissions, engaged in under color of state law, Defendants have imposed a viewpoint-based restriction on Plaintiff's speech in violation of Article I, § 2 of the California Constitution.
72. As a direct and proximate result of Defendants' violation of the Liberty of Speech Clause of the California Constitution, Plaintiff has suffered irreparable harm, including the loss of his constitutional right to freedom of expression, entitling him to declaratory and injunctive relief and nominal damages.
FIFTH CLAIM FOR RELIEF
Violation of the No Preference Clause of the California Constitution
73. Plaintiff hereby incorporates by reference all above-stated paragraphs.
74. By reason of the aforementioned policy, practice, custom, acts, and omissions, engaged in under color of state law, Defendants have violated Article I, Section 4 of the California Constitution ("No Preference Clause").
75. Defendants' policy, practice, and/or custom of prohibiting Plaintiff's banners lacks a valid secular purpose, has the primary effect of inhibiting religion, and creates an excessive entanglement with religion in violation of the California Constitution.
76. [*24] Defendants' policy, practice, and/or custom conveys an impermissible, government-sponsored message of disapproval of and hostility toward the Christian religion and our Nation's religious heritage. As a result, Defendants' policy, practice, and/or custom sends a clear message to Plaintiff that he is an outsider, not a full member of the political and school community and an accompanying message that those who disfavor the Christian religion and our Nation's Judeo-Christian heritage are insiders, favored members of the political and school community in violation of the California Constitution.

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77. As a direct and proximate result of Defendants' violation of the No Preference Clause of the California Constitution, Plaintiff has suffered irreparable harm, including the loss of his constitutional rights, entitling him to declaratory and injunctive relief and nominal damages.
SIXTH CLAIM FOR RELIEF
Violation of the Establishment Clause of the California Constitution
78. Plaintiff hereby incorporates by reference all above-stated paragraphs.
79. By reason of the aforementioned policy, practice, custom, acts, and omissions, engaged in under color of state law, Defendants [*25] have violated Article I, Section 4 of the California Constitution ("Establishment Clause").
80. Defendants' policy, practice, and/or custom of prohibiting Plaintiff's banners lacks a valid secular purpose, has the primary effect of inhibiting religion, and creates an excessive entanglement with religion in violation of the California Constitution.
81. Defendants' policy, practice, and/or custom conveys an impermissible, government-sponsored message of disapproval of and hostility toward the Christian religion and our Nation's religious heritage. As a result, Defendants' policy, practice, and/or custom sends a clear message to Plaintiff that he is an outsider, not a full member of the political and school community and an accompanying message that those who disfavor the Christian religion and our Nation's Judeo-Christian heritage are insiders, favored members of the political and school community in violation of the California Constitution.
82. As a direct and proximate result of Defendants' violation of the Establishment Clause of the California Constitution, Plaintiff has suffered irreparable harm, including the loss of his constitutional rights, entitling him to declaratory and [*26] injunctive relief and nominal damages.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff asks this Court:
A) to declare that Defendants have violated the First and Fourteenth Amendments to the United States Constitution, as set forth in this First Amended Complaint;
B) to declare that Defendants have violated the California Constitution, as set forth in this First Amended Complaint;
C) to permanently enjoin Defendants' policy, practice, and/or custom of banning messages with a Judeo-Christian viewpoint, as set forth in this First Amended Complaint;
D) to award Plaintiff nominal damages against Defendants in their individual capacities for the violation of his constitutional rights pursuant to 42 U.S.C. § 1983 and other applicable law;
E) to award Plaintiff his reasonable attorneys' fees, costs, and expenses pursuant to 42 U.S.C. § 1988, California Code of Civil Procedure § 1021.5, and other applicable law;
F) to grant such other and further relief as this Court should find just and proper.
Respectfully submitted,
THOMAS MORE LAW CENTER

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By: /s/ Robert J. Muise Robert J. Muise, Esq. *

* Admitted pro hac vice
[*27] Charles S. LiMandri, Esq.
Counsel for Plaintiff Bradley Johnson
CERTIFICATE OF SERVICE
STATE OF MICHIGAN, COUNTY OF WASHTENAW
I am employed in the County of Washtenaw, State of Michigan. I am over the age of eighteen and not a party to the within action. My business address is Thomas More Law Center, 24 Frank Lloyd Wright Drive, P.O. Box 393, Ann Arbor, Michigan 48106.
On September 21, 2007, I served the following documents entitled: Notice of Filing First Amended Complaint, First Amended Complaint, and this certificate of service on the interested parties in this action as follows:
[see attached service list]
[X] (BY ELECTRONIC SERVICE) On the date executed below, I served the document(s) via CM/ECF described above on the designated recipients appearing on the service list through electronic transmission of said document(s). A certified receipt is issued to the filing party acknowledging receipt by CM/ECF's system. Once CM/ECF has served all designated recipients, proof of electronic service is returned to the filing party.
[] (BY MAIL) I caused true copies of said document(s) to be enclosed in a sealed envelope(s) with postage thereon [*28] fully prepaid and the envelope(s) to be placed in the United States Mail at Ann Arbor, Michigan. I am readily familiar with the practice of the Thomas More Law Center for collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection.
[] (BY FACSIMILE) The above-referenced document(s) was transmitted by facsimile transmission to each recipient whose name and facsimile number appear on the service list. The transmission was reported as completed and without error. A true and correct copy of that transmission report is attached hereto and incorporated by reference and also in accordance with:
[] (BY FEDERAL EXPRESS) I caused the above-described documents to be served on the interested parties noted on the service list by Federal Express.
[X] I declare under penalty of perjury under the laws of the United States that the above is true and correct.
Executed on September 21, 2007, at Ann Arbor, Michigan.
/s/ Robert J. Muise Robert J. Muise Counsel for Plaintiff Bradley Johnson

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SERVICE LIST [*29]
Stutz Artiano Shinoff & Holtz Daniel R. Shinoff, Esq. Jack M. Sleeth, Jr., Esq. Paul V. Carelli, IV, Esq. 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106-6113
Counsel for Defendants Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle, Dr. Donald A. Phillips, William R. Chiment, and Dawn Kastner

 
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BRADLEY JOHNSON, Plaintiff, vs. POWAY UNIFIED SCHOOL DISTRICT, et al., Defendant.
CASE NO. 07cv783 BEN (LSP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2008 U.S. Dist. LEXIS 107665

September 4, 2008, Decided

SUBSEQUENT HISTORY: Summary judgment granted by Johnson v. Poway Unified Sch. Dist., 2010 U.S. Dist. LEXIS 25301 (S.D. Cal., Feb. 25, 2010)
CASE SUMMARY:
PROCEDURAL POSTURE: Defendants, a public school district, several of its officials and members of its board (the school district), filed a motion to dismiss plaintiff teacher's first amended complaint, pursuant to Fed. R. Civ. P. 12(b)(c). The teacher brought suit asserting violations of the First Amendment, U.S. Const. amend. I, and Cal. Const. art. I, §§ 2 and 4, after he was required to remove two banners from his classroom.

brought the underlying litigation. The court found no merit in the school district's assertion that the teacher gave up his free speech rights by virtue of his employment as a public high school teacher. The court further noted that it did not find the signs to communicate a religious viewpoint but, rather, that the banners communicated fundamental political messages and celebrated important American shared historical experiences.
OUTCOME: The court denied defendants' motion to dismiss.
LexisNexis(R) Headnotes

OVERVIEW: The banners at issue had hung in the teacher's math classroom for 17 to 25 years. One stated four phrases relating to God, such as "In God We Trust." The other banner read "All Men Are Created Equal, They Are Endowed By Their Creator." The teacher asserted in his first amended complaint that the school district had maintained a policy, practice, and custom of giving teachers the discretion and control to display messages and pictures in their classrooms. At no time was a complaint ever received regarding the banners. The principal advised that the banners set forth an impermissible communication regarding a Judeo-Christian viewpoint and that if they were not removed, he would suffer adverse employment consequences. The teacher removed the banners and

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Pleading & Practice > Pleadings > Complaints > Requirements Civil Procedure > Pleading & Practice > Pleadings > Rule Application & Interpretation [HN1] In order to withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the complaint must provide a short and plain statement of the claim showing that he is entitled to relief. Fed. R. Civ. P. 8(a)(2). That is not an onerous burden. Specific facts are not necessary; the statement need only give the defendants fair notice of what the claim is and the grounds upon which it rests. Of

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course, the complaint should set forth enough facts to state a claim for relief that is plausible on its face. The facts stated are not judged to be true or false at that stage. Instead, all well-pleaded factual allegations are accepted as true, as well as any reasonable inferences that may be drawn. In other words if, upon viewing the totality of the alleged circumstances in the light most favorable to the plaintiff, the complaint puts forth enough facts to state a claim for relief that is plausible on its face, then a court's notice pleading requirements do not require more.
Evidence > Judicial Notice > Adjudicative Facts > Facts Generally Known Evidence > Judicial Notice > Adjudicative Facts > Verifiable Facts [HN2] Fed. R. Evid. 201(b) provides that judicial notice must concern a fact not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Establishment of Religion Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Free Exercise of Religion Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom [HN3] The First Amendment, U.S. Const. amend. I, reads that the United States Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Cal. Const. art. 1, § 2(a) reads that every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Expressive Conduct Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom Education Law > Students > Speech > Pure Speech & Expression

[HN4] It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. The United States Supreme Court has neither diminished the force of that holding for teachers nor in any other way cabined the First Amendment, U.S. Const. amend. I, speech of public school teachers. First Amendment rights apply in light of the special characteristics of the school environment that are available to teachers and students. The Court has permitted limits on student speech in special circumstances. The Court would permit restriction of student speech that materially and substantially interferes with the requirements of appropriate discipline. Student speech has been proscribed where it consists of an elaborate, graphic, and explicit sexual metaphor. It may be banned where it incites to imminent lawless action. Student speech that promotes illegal drug use may be punished. Student speech in an official school newspaper may be regulated if based on viewpoint neutral terms.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom Education Law > Students > Speech > Pure Speech & Expression [HN5] Teachers do not forfeit their constitutional free speech rights as a condition of employment.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Forums Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom [HN6] The first step in assessing a First Amendment, U.S. Const. amend. I, claim relating to private speech on government property is to identify the nature of the forum. The United States Supreme Court has adopted a forum analysis as a means of determining when the government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Government regulation of speech in public spaces has historically been governed by the public forum doctrine.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Forums Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

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[HN7] Forum analysis has traditionally divided government property into three categories: public fora, designated public fora, and nonpublic fora. Once the forum is identified with regard to a free speech claim, a court determines whether restrictions on speech are justified by the requisite standard. On one end of the fora spectrum lies the traditional public forum, places which by long tradition have been devoted to assembly and debate. Next on the spectrum is the so-called designated public forum, which exists when the government intentionally dedicates its property to expressive conduct. In a public or designated public forum, restrictions on speech are subject to strict scrutiny. At the opposite end of the fora spectrum is the non-public forum. The non-public forum is any public property that is not by tradition or designation a forum for public communication. In a non-public forum government restrictions are subjected to less-exacting judicial scrutiny. There a government may restrict free speech if it acts reasonably and does not suppress expression merely because public officials oppose one speaker's view.

solely to suppress the point of view he espouses on an otherwise includible subject. Where the government is plainly motivated by the nature of the message rather than the limitations of the forum or a specific risk within that forum, it is regulating a viewpoint.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom [HN10] Discrimination against speech because of its message is presumed to be unconstitutional.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Forums Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom Education Law > Students > Speech > Pure Speech & Expression [HN11] A public high school is a limited public forum and, where restriction to the forum is based solely on religious viewpoint, the restriction is invalid.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Forums Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom Education Law > Students > Speech > Pure Speech & Expression [HN8] Once a government has opened a limited forum, it must respect the lawful boundaries it has itself set. A school district may not exclude speech where its distinction is not reasonable in light of the purposes served by the forum, nor may the government discriminate against speech on the basis of its viewpoint. Viewpoint neutrality requires that government actors not favor one message over another. When government has excluded perspectives on a subject matter otherwise permitted by the forum, the government is discriminating on the basis of viewpoint.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Forums Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom [HN9] If certain speech falls within an acceptable subject matter otherwise included in the forum, the State may not legitimately exclude it from the forum based on the viewpoint of the speaker. Viewpoint discrimination occurs when the government denies access to a speaker

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Establishment of Religion [HN12] It is quite obvious that the national motto and the slogan on coinage and currency In God We Trust has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Establishment of Religion Education Law > Students > Speech > Pure Speech & Expression [HN13] That God places prominently in the United States' history does not create an Establishment Clause, U.S. Const. amend. I, problem requiring curettage and disinfectant of a teacher's classroom walls. It is a matter of historical fact that our institutions and government actors have in past and present times given place to a supreme God. The nation is a religious people whose institutions presuppose a Supreme Being. The incidental government advancement of religion is permissible. The United States Supreme Court case law precedents plainly contemplate that on occasion some advancement of

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religion will result from government action. The United States Constitution permits government some latitude in recognizing and accommodating the central role religion plays in our society. Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom Education Law > Students > Speech > Pure Speech & Expression [HN14] The desirable approach is not for schools to throw up their hands because of the possible misconception about endorsement of religion, but that instead it is far better to teach students about the first amendment, U.S. Const. amend. I, about the difference between private and public action, and about why a court tolerates divergent views. The school's proper response is to educate the audience rather than squelch the speaker.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Establishment of Religion [HN15] The clearest command of the Establishment Clause, U.S. Const. amend. I, is that one religious denomination cannot be officially preferred over another. The State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Establishment of Religion Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Forums Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom [HN16] The message of an open-forum policy is one of neutrality, not endorsement, while discriminating against religious groups would demonstrate hostility, not neutrality, toward religion. The Establishment Clause, U.S. Const. amend. I, inquiry is whether the government conveys or attempts to convey a message that religion or a particular religious belief is favored or preferred.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Establishment of Religion Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom Governments > Courts > Judicial Precedents [HN17] The construction given by California courts to the establishment clause of Cal. Const. art. I, § 4, is guided by decisions of the United States Supreme Court.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Establishment of Religion Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Free Exercise of Religion [HN18] The No Preference Clause, Cal. Const. art. I, § 4, reads that the free exercise and enjoyment of religion without discrimination or preference are guaranteed. The California courts have interpreted the no preference clause to require that not only may a governmental body not prefer one religion over another, it also may not appear to be acting preferentially.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Forums Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom Constitutional Law > Equal Protection > Scope of Protection [HN19] The United States Supreme Court teaches that when government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause, U.S. Const. amend. XIV, mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized. Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment, U.S. Const. amend. I, itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an equality of status in the field of ideas, and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the

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basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Summary Judgment > Standards > Appropriateness Torts > Public Entity Liability > Immunity > General Overview [HN20] In the usual case where a defendant asserts an official immunity defense, the district court first decides whether the facts alleged in the complaint, assumed to be true, yield the conclusion that the defendant is entitled to immunity. That is the analysis under a Fed. R. Civ. P. 12(b)(6) motion to dismiss. If a plaintiff survives the motion to dismiss, he is entitled to enough discovery to permit the court to rule on a subsequent summary judgment motion.

the Board of Education for the Poway Unified School District, Todd Gutschow, individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District, Penny Ranftle, individually and in her official capacity as a Member of the Board of Education for the Poway Unified School District, Dr Donald A Phillips, individually and in his official capacity as Superintendent of the Poway Unified School District, Dawn Kastner, individually and in her official capacity as Principal, Westview High School, Poway Unified School District, William R Chiment, individually and in his official [*2] capacity as Assistant Superintendent of the Poway Unified School District, Defendants: Paul Vincent Carelli, IV, Stutz Artiano Shinoff and Holtz, San Diego, CA.
JUDGES: ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE.
OPINION BY: ROGER T. BENITEZ

Torts > Public Entity Liability > Immunity > Qualified Immunity [HN21] A defendant is entitled to qualified immunity only if the law at the time of the alleged constitutional violation was not clearly established. In order to find that the law was clearly established, however, a court need not find a prior case with identical, or even materially similar, facts. The task is determining whether the preexisting law provided the defendant with fair warning that its conduct was unlawful.
Education Law > Administration & Operation > School Districts > Creation [HN22] School districts are treated as state agencies.
COUNSEL: [*1] For Bradley Johnson, Plaintiff: Charles Salvatore LiMandri, LEAD ATTORNEY, Law Offices of Charles S LiMandri, Rancho Santa Fe, CA; Robert J Muise, LEAD ATTORNEY, Thomas More Law Center, Ann Arbor, MI.
For Poway Unified School District, Jeff Mangum, individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District, Linda Vanderveen, individually and in her official capacity as a Member of the Board of Education for the Poway Unified School District, Andrew Patapow, individually and in his official capacity as a Member of

OPINION
ORDER DENYING MOTION TO DISMISS
Now before the Court is the Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. Plaintiff Bradley Johnson's Complaint seeks relief for violations of his rights under the First Amendment of the U.S. Constitution and the under Article I, Sections 2 and 4 of the California Constitution. He seeks relief from the Poway Unified School District and from the individual Defendants sued in their official and individual capacities. Defendants move to dismiss each of the six claims for relief for failure to state a claim. Additionally, each of the individual Defendants seek dismissal based upon qualified immunity, and the School District asserts Eleventh Amendment immunity from suit. For the reasons that follow, the Motion to Dismiss is denied.
I. MOTION TO DISMISS STANDARD
The legal standard to be applied to a motion to dismiss is well known. [HN1] In order to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) [*3] the Complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." FED. R. CIV. P. 8(a)(2). This is not an onerous burden. "Specific facts are not necessary; the statement need only give the defendants fair notice of what . . . the claim is and the grounds upon which it rests." Johnson v.

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Riverside Healthcare Sys., 534 F.3d 1116, 1122 (9th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007)). Of course, the Complaint should set forth "enough facts to state a claim for relief that is plausible on its face." Johnson, M.D., 534 F.3d at 1122 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)). The facts stated are not judged to be true or false at this stage. Instead, all well-pleaded factual allegations are accepted as true, as well as any reasonable inferences that may be drawn. Johnson, M.D., 534 F.3d at 1122 (citing Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)). In other words if, upon "viewing the totality of the alleged circumstances in the light most favorable to Johnson, the complaint puts forth 'enough facts to state a claim for relief that is plausible on its face,'" then "[o]ur notice [*4] pleading requirements do not require more." Johnson, M.D., 534 F.3d at 1122 (quoting Twombly, 127 S.Ct. at 1974).
II. REQUEST FOR JUDICIAL NOTICE
It is also appropriate to address Defendants' Request for Judicial Notice of Documents before proceeding to the merits. Defendants request the Court take judicial notice of three exhibits. Johnson objects. The objection is well taken. Federal Rule of Evidence 201(b) [HN2] provides that judicial notice must concern a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
The first exhibit is a newspaper article (available on the internet) about the instant lawsuit and newspaper photograph depicting one of Johnson's two banners. Newspaper articles "have been held inadmissible hearsay as to their content." Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir. 1991); see also E.E.O.C. v. Peabody Western Coal Co., slip op., Case No. 01cv1050-PHX-MHM, 2006 U.S. Dist. LEXIS 74478, 2006 WL 2816603 (D. Ariz Sept. 30, 2006) (declining to take judicial notice of newspaper articles on [*5] motion to dismiss); but see Ritter v. Hughes Aircraft Co., 58 F.3d 454 458 (9th Cir. 1995) (taking judicial notice of newspaper article describing widespread layoffs at Hughes where fact of layoffs was generally known in Southern California and the objecting party testified to the same in his deposition). In this case, the newspaper

items do not meet either part of the Federal Rule of Evidence 201 tests. The request to take judicial notice of exhibit "A" is denied.
The second and third exhibits are isolated pages of school policy and procedure dated 1991. Exhibit "B" is titled "Poway Unified School District Board Policy" pertaining to "Challenge of Educational Materials and Teaching Controversial Issues." Exhibit "C" is titled "Poway Unified School District Administrative Procedure" pertaining to "The Teaching of Controversial Issues." It is not apparent whether these two documents represent Defendants' current policy and procedure nor what, if any, role the policy or procedure might have played in the events alleged in Johnson's First Amended Complaint. They are certainly unknown in the territory of the Southern District, and their accuracy cannot be determined. Both documents fail [*6] to meet the Federal Rule of Evidence 201 tests. Moreover, their relevance is far from clear as the Complaint does not allege that: (1) Johnson was engaged in the teaching of controversial issues; or (2) the Defendants acted pursuant to either policy. The Complaint alleges simply that Johnson taught mathematics. The Complaint also alleges that Johnson did not use the banners as part of his teaching, nor were the banners provided by the school district to be used in the curriculum. Accepting the allegations as true, as is done for purposes of a motion to dismiss, the exhibits would be irrelevant, even if judicially noticed. The request to take judicial notice of exhibits "B" and "C" is also denied.
III. FACTS
According to the First Amended Complaint, Plaintiff Bradley Johnson is a Christian. First Amended Complaint, P 6. Johnson is employed as a public high school math teacher. Id. at PP 6 & 17. He has taught math to students in the Poway Unified School District for 30 years and is well respected. Id. He currently is teaching at Westview High School, a school within the Poway Unified School District. Id.
Defendant Poway Unified School District is a public school entity established pursuant [*7] to California law. Id. at P 7. Defendant Kastner is the Principal of Westview High School. Id. at P 15. Defendants Phillips and Chiment are the Superintendent and Assistant Superintendent, respectively, of the Poway Unified School District. Id. at PP 13 & 14. The remaining Defendants, Mangum, Vanderveen, Patapow, Gutschow,

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and Ranftle, are members of the Board of Education for the Poway Unified School District. Id. at PP 8-12.
At Westview High School, Johnson is assigned a particular classroom for his math classes. Id. at P 19. He is assigned the same classroom for his homeroom duties. Id. He uses the same classroom for extra-curricular and non-curricular activities. Id.
Over the last 25 years, Johnson has continuously hung one or two banners on the wall of his assigned classroom. Id. at P18. Johnson purchased and displayed the banners using his own money. Id. Throughout the 25 years that the banners hung on the wall of Johnson's assigned classroom, there were no objections to the presence or messages of the banners. Id.
Each banner is approximately seven feet long and two feet wide. Id. at P 28. The banners do not contain pictures or symbols. Id. The banners are colored red, white, and [*8] blue and set forth famous phrases. Id. at P 26. One banner contains the following four phrases: "In God We Trust," "One Nation Under God," "God Bless America," and "God Shed His Grace On Thee." Id. This banner has hung in Johnson's classroom for 25 years.
The other banner includes the phrase: "All Men Are Created Equal, They Are Endowed By Their Creator." Id. at P 27. This banner has hung in Johnson's classroom for 17 years. Id. Johnson hung the banners along with photographs of nature scenes and national parks and pictures of his family. Id. at P 25.
Johnson did not hang the banners pursuant to his official duties as a math teacher. Id. at P 23. Moreover, Johnson did not use the banners during any classroom sessions or periods of instruction. Id. Rather, Johnson hung his banners pursuant to a long-standing Poway Unified School District policy, practice, and custom of permitting teachers to display personal messages on their classroom walls. Id.
As alleged in the First Amended Complaint, for at least 30 years, Poway Unified School District has maintained a policy, practice, and custom of giving teachers, like Johnson, discretion and control over the messages displayed on classroom walls. [*9] Id. at P 20. According to Poway Unified School District policy, practice, and custom all teachers are permitted to display in their classrooms various messages and other items that reflect the individual teacher's personality, opinions, and

values, as well as messages relating to matters of political, social, or other similar concerns so long as these displays do not materially disrupt school work or cause substantial disorder or interference in the classroom. Id. Because of this policy, practice, and custom, the classroom walls serve as an expressive vehicle for teachers to convey non-curriculum related messages. Id.
Pursuant to the long standing policy, practice, and custom of the Poway Unified School District, other teachers have displayed and continue to display in their classrooms other kinds of non-educational and non-curricular materials such as:
- posters of rock bands such as Nirvana and The Clash
-posters of professional athletes
-travel posters
-family photographs
-non-student artwork and posters of artwork
-stuffed animal collections
-pictures of nature
-materials promoting the environment
-posters with Buddhist and Islamic messages
-Tibetan prayer flags
Id. at P 22. The displayed [*10] items contain messages that express personal views, interests, or opinions of the teacher. Id. The teachers control the messages conveyed by their displays. Id.
Johnson's banners have caused no disruption or interference in his classroom or elsewhere in the school. Id. at P 40. Likewise, the banners have not interfered with the basic education mission of the school district. Id. at P 41.
In fact, over the 30 years Johnson has taught in the Poway Unified School District, Johnson received no complaints about the banners from the many individuals who have been inside his classroom including: seven

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different principals, numerous school board members, superintendents, and assistant superintendents, over 4,000 students and several thousand parents of students. Id. at P 39.
On January 23, 2007, Westview High School Principal Kastner ordered Johnson to remove the banners, telling Johnson the banners were impermissible because they conveyed a Judeo-Christian viewpoint. Id. at P 42. As alleged in the First Amended Complaint, Defendants singled out Johnson for discriminatory treatment because of the viewpoint of his message. Id. at P 43. Defendants did not claim that Johnson's banners caused disruption [*11] or disorder in the school, or that they interfered with the curriculum. Id.
Johnson wants to display the banners in his classroom; however, Defendants have prohibited him from doing so. Id. at P 51. Had Johnson not complied with Defendants' order to remove the banners, Johnson would have suffered adverse employment consequences. Id. at P 58. As of the date of the First Amended Complaint, Johnson continues to teach his assigned mathematics curriculum. Id. at P 56.
IV. ANALYSIS
"The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the marketplace of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 512, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (citations omitted).
Johnson asserts six claims for relief seeking declaratory and injunctive relief as well as nominal damages. Three of the claims rest on federal constitutional rights; three rest on similar state constitutional rights. Defendants [*12] move to dismiss all of the claims.
A. The Free Speech Claims
Johnson's First Claim for Relief is that the Defendants violated his First Amendment free speech rights protected by the U.S. Constitution. [HN3] The First Amendment reads: "Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I. Johnson's Fourth Claim for Relief is that Defendants similarly violated his free speech rights protected by the California Constitution. California's Article 1, Section 2(a) reads: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Cal. Const. art. 1, § 2.
Defendants push forward three principal arguments for why Johnson's free speech claims should be dismissed for failure to state a claim. Before discussing these contentions it is worth noting that Johnson's two banners clearly constitute speech and that the speech has been [*13] squelched by Defendants. Defendants do not contest this, at least for purposes of the motion to dismiss.
What Defendants do argue is that Johnson has no free speech rights at all because he is a government employee, relying on Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L. Ed. 2d 689 (2006); Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); and Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Additionally, they argue that Johnson's speech is curricular in nature, and since curricular, the Defendants have unfettered right to direct what shall or shall not be in the curriculum, relying on Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000), cert. denied, 532 U.S. 994, 121 S. Ct. 1653, 149 L. Ed. 2d 636 (2001); and Lee v. York County Sch. Div., 484 F.3d 687 (4th Cir. 2007), cert. denied, 128 S. Ct. 387, 169 L. Ed. 2d 263 (2007). Finally, Defendants argue that avoiding the fear of possible future lawsuits by others is a legitimate justification for curtailing Johnson's speech.
1. Public School Teacher Speech
Defendants first argue that Johnson is a government employee and that, as a government employee, he has no free speech rights while engaged in his official duties. As Defendants put it, "Johnson's banners do not enjoy First Amendment protections because [*14] Johnson is speaking as an educator, not a citizen"; "[b]ecause Johnson was a teacher, he had no First Amendment protections in his classroom." Defendants' Points and

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Authorities in Support of Motion to Dismiss, at 6 & 19.
This argument is squarely at odds with years of settled Supreme Court precedent. In Tinker 393 U.S. at 506, the Court observed: "[i]t [HN4] can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years." In the forty years since, the Supreme Court has neither diminished the force of Tinker for teachers nor in any other way cabined the First Amendment speech of public school teachers. In fact, just last year the Court reaffirmed Tinker's pronouncement. See Frederick v. Morse, 551 U.S. 393, 127 S.Ct. 2618, 2626, 168 L. Ed. 2d 290 (2007) ("In Tinker, this Court made clear that 'First Amendment rights applied in light of the special characteristics of the school environment' are available to teachers and students.").
The Court has permitted limits on student speech in special circumstances. The Court would permit restriction of student speech that "materially [*15] and substantially interferes with the requirements of appropriate discipline. Tinker, 393 U.S. at 509. Student speech has been proscribed where it consists of an "elaborate, graphic, and explicit sexual metaphor." Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 678, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986). It may be banned where it "incite[s] to imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). Student speech that promotes illegal drug use may be punished. Frederick, 127 S.Ct. at 2629. And student speech in an official school newspaper may be regulated if based on viewpoint neutral terms. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988).
However, the speech allegedly squelched by Defendants in this case is speech by Johnson, a teacher. In the secondary school setting there is a qualitative lop-sided difference between the two classes of speakers that must be respected. See e.g., Morse, 127 S.Ct. at 2629 (Thomas, J., concurring) (describing history of American education where teachers had wide discretion to make rules and ensure student silence). Even if the permissible restrictions on student speech could justify restrictions on educator speech, none of the problematic situations [*16] calling for speech regulation exist in Johnson's classroom setting. Through his banners, Johnson is neither

substantially disrupting classroom studies, nor advocating illegal drug use, nor inciting imminent lawless action, nor sending his own message out through the school newspaper. Thus, while mindful that situations may arise where a school teacher's First Amendment free speech may lawfully be curtailed, Supreme Court precedent cleanly undercuts Defendants's assertion that Johnson's speech receives no protection simply because he speaks as an educator.
The three decisions upon which Defendants rely do not undercut Tinker's robust observation that [HN5] teachers do not forfeit their constitutional free speech rights as a condition of employment. First, Defendants cite Garcetti, arguing that the First Amendment does not protect employee speech offered pursuant to their official duties. Defendants' Points and Authorities in Support, at 6. However, Garcetti by its own terms does not extend to the public school setting. Garcetti cautions, "[w]e need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related [*17] to scholarship or teaching." 126 S.Ct. at 1962.
Without Garcetti's support, Defendants turn to arguing that the balancing test from Pickering and Connick should be applied, and if applied, would leave Johnson's speech unprotected by the First Amendment. Applying the Pickering balancing test in the present context is not useful. Doing so would depart from the First Amendment forum analysis described in Hazelwood and applied by the Ninth Circuit Court of Appeals in school cases. See e.g., Truth v. Kent School District, 524 F.3d 957, 972 (9th Cir. 2008) (applying forum analysis); Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007), cert. denied, 128 S. Ct. 882, 169 L. Ed. 2d 726 (2007) (applying forum analysis); Hills v. Scottsdale Unified School Dist. No. 48, 329 F.3d 1044, 1048-50 (9th Cir. 2003), cert. denied, 540 U.S. 1149, 124 S. Ct. 1146, 157 L. Ed. 2d 1042 (2004) (applying forum analysis); Downs, 228 F.3d at 1009-11 (declining to apply forum analysis where speech at issue belongs to the school district).
Pickering addressed a public school teacher's speech that criticized his government employer. The Court sought to balance the employee's interests as a citizen and the government interest as employer in promoting efficiency of providing [*18] governmental services. In the end, the Court reinforced the understanding that a teacher's speech continues to enjoy constitutional

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protection even when the speech consists of public criticism of his school board. 391 U.S. at 568 ("To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court."). Connick likewise addressed a district attorney's right to engage in speech critical of her employer's internal staffing decisions. Even when Connick was decided 25 years ago, it was settled law that, "a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick, 461 U.S. at 142. (citations omitted). Johnson's classroom banners in this case do not fit into the category of speech critical of his employer. Thus, the Pickering/Connick balancing [*19] test is ill-fitted for contexts such as the one presented by this case.
Defendants brash argument that Johnson gave up his free speech rights by virtue of his employment as a public high school teacher is at odds with Tinker and Morse. Upon concluding that Johnson retains First Amendment speech rights as a public school teacher, a First Amendment forum analysis is the next step.
2. First Amendment Forum Analysis
To determine the extent of free speech rights on government property such as Johnson's classroom at Westview High School, the courts engage in a First Amendment forum analysis. Arizona Life Coalition, Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir. 2008) ("[HN6] The first step in assessing a First Amendment claim relating to private speech on government property is to identify the nature of the forum."). "The Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). According to the Ninth Circuit, "Government regulation of speech in public [*20] spaces has historically been governed by the public forum doctrine. Pocatello Education Assn. v. Heideman, 504 F.3d 1053, 1060 (9th Cir. 2007), cert. granted sub nom., Ysursa v. Pocatello

Educ. Ass'n, 128 S.Ct. 1762, 170 L. Ed. 2d 538 (2008); Hills v. Scottsdale Unified School Dist. No. 48, 329 F.3d 1044 (9th Cir. 2003) ("To analyze his [First Amendment free speech] claim, we must first consider what type of forum the [school] District has created.").
"[HN7] Forum analysis has traditionally divided government property into three categories: public fora, designated public fora, and nonpublic fora. Flint, 488 F.3d at 830 (citation omitted). "Once the forum is identified, we determine whether restrictions on speech are justified by the requisite standard." Id. "On one end of the fora spectrum lies the traditional public forum, 'places which by long tradition . . . have been devoted to assembly and debate.' Next on the spectrum is the so-called designated public forum, which exists 'when the government intentionally dedicates its property to expressive conduct.'" Id. (citations omitted). In a public or designated public forum, restrictions on speech are subject to strict scrutiny. Id.
"At the opposite end of the [*21] fora spectrum is the non-public forum . . . . The non-public forum is 'any public property that is not by tradition or designation a forum for public communication.'" Id. (citations omitted). In a non-public forum government restrictions are subjected to less-exacting judicial scrutiny. There a government may restrict free speech if it acts reasonably and does not suppress expression merely because public officials oppose one speaker's view. Id. (citations omitted).
To determine the type of forum applicable to Johnson's classroom wall, the nature of the government property involved must be examined. Assuming the fact allegations in the First Amended Complaint to be true, as one must for purposes of a motion to dismiss, Johnson's classroom wall constitutes a limited public forum (a sub-category of a designated public forum) because the Poway Unified School District has intentionally opened its property to expressive conduct by its faculty. Flint, 488 F.3d at 831. This conclusion is based upon the allegation that Defendants have a long-standing policy of permitting its teachers to express ideas on their classroom walls. First Amendment Complaint, at PP 20-22. Defendants' policy grants [*22] its teachers discretion and control over the messages displayed on their classroom walls. Id. Defendants' policy permits teachers to display on their classroom walls messages and other items that reflect the teacher's personality, opinions, and

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values, as well as political and social concerns. Id. Defendants' policy permits teacher speech so long as the wall display does not materially disrupt school work or cause substantial disorder or interference in the classroom. Id. As a result of the Defendants' long-standing policy, a teacher's classroom walls serve as a limited public forum for a teacher to convey and speak non-curriculum messages. Id.
"[O]nce [HN8] a government has opened a limited forum, it must respect the lawful boundaries it has itself set." Flint, 488 F.3d at 831 (quoting Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1993)). The Poway School District "may not exclude speech where its distinction is not reasonable in light of the purposes served by the forum, nor may the government discriminate against speech on the basis of its viewpoint." Id. (citations omitted). Viewpoint neutrality requires that government actors not favor one message over another. [*23] When "government has excluded perspectives on a subject matter otherwise permitted by the forum," the government is discriminating on the basis of viewpoint. Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891, 912 (9th Cir. 2007), cert. denied, 128 S. Ct. 143, 169 L. Ed. 2d 30 (2007).
Here, the Poway Unified School District opened a limited public forum in which its teachers were permitted to exercise free speech. Johnson's speech included hanging the two banners he created. When Defendant Westview High School Principal Kastner ordered Johnson to remove the banners "because they conveyed a Judeo-Christian viewpoint," as alleged in the First Amended Complaint, Kastner was clearly squelching speech based upon the viewpoint of the speaker, and not pursuant to a content-neutral reason or the boundaries the Poway School District set for itself in opening the forum. [HN9] If certain speech "fall[s] within an acceptable subject matter otherwise included in the forum, the State may not legitimately exclude it from the forum based on the viewpoint of the speaker." Cogswell v. City of Seattle, 347 F.3d 809, 815 (9th Cir. 2003), cert. denied, 541 U.S. 1043, 124 S. Ct. 2175, 158 L. Ed. 2d 732 (2004). The Supreme Court has been clear that [*24] viewpoint discrimination occurs when the government "denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Cornelius, 473 U.S. at 806; see also Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 971 (9th Cir. 2002)

(recognizing that "where the government is plainly motivated by the nature of the message rather than the limitations of the forum or a specific risk within that forum, it is regulating a viewpoint").
According to the First Amended Complaint, teachers other than Johnson have been permitted to use the classroom-wall forum to speak on a wide variety of secular and religious topics. First Amended Complaint, at P 22. Topics permitted have included religious speech such as Buddhist messages, Islamic messages, and Tibetan prayer flags. Id. Yet, Johnson's speech has been singled out for suppression because of its perceived message (conveying a Judeo-Christian viewpoint 1). By squelching Johnson's Judeo-Christian religious viewpoint while promoting or permitting Buddhist, Islamic, and Tibetan religious viewpoints, Defendants' acts clearly unjustifiably abridge Johnson's constitutional free speech rights. "[HN10] Discrimination [*25] against speech because of its message is presumed to be unconstitutional." Rosenberger, 515 U.S. at 828.
1 The Court does not understand Johnson's banners as communicating a religious Judeo-Christian viewpoint. Rather, the banners communicate fundamental political messages and celebrate important American shared historical experiences. For example, one banner contains an excerpt from the Declaration of Independence, this Nation's most cherished symbol of liberty, observing the primary truth to be self-evident: "All men are created equal, they are endowed by their Creator." Another banner repeats the official motto of the United States: "In God We Trust." Even, Johnson's phrase, "God Bless America," which could be interpreted as an ecumenical patriotic prayer, is more well known as a popular American song title of the twentieth century written by Irving Berlin and performed most famously by Kate Smith -- and known to countless sports fans from being played as a good luck charm for the Philadelphia Flyers ice hockey team in the 1970's and during New York Yankees baseball games since the attacks of September 11, 2001. See also, Seidman v. Paradise Valley Unified Sch. Dist. No. 69, 327 F. Supp. 2d 1098, 1112 (D. Ariz. 2004) [*26] ("The phrase 'God Bless America,' has historic and patriotic significance."). Regardless of how this Court perceives Johnson's messages, Defendants acted

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based upon a perception that the messages conveyed a Judeo-Christian viewpoint.
In this sense, Johnson's case is similar to Rosenberger, Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993) and Good News Club v. Milford Central School, 533 U.S. 98, 107-08, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001). Each case involved viewpoint discrimination in a limited public forum. In Rosenberger, the Supreme Court found that by excluding funding to a student religious group solely because the religious group promoted a particular religious perspective, the university was discriminating in a limited public forum on the basis of that group's viewpoint. Rosenberger, 515 U.S. at 829-37. In Lamb's Chapel, a group desired to speak at a school facility on the issue of child rearing from a religious perspective. The school district denied access to speakers from using the school rooms for religious purposes. The Supreme Court unanimously held that the school district discriminated on the basis of viewpoint, and that the school district should have permitted speech [*27] from a religious perspective on subject matter permitted by the forum. Lamb's Chapel, 508 U.S. at 393. Similarly, in Good News Club, the Supreme Court found viewpoint discrimination where a public school excluded a Christian club from meeting on the school's grounds while permitting nonreligious groups to meet. Good News Club, 533 U.S. at 107-09. The Christian club simply sought to address a subject otherwise permitted in the limited public forum Id. at 109. In Faith Center, the Ninth Circuit reviewed these cases and drew a line between speech from a religious perspective (which was constitutionally protected in each of the limited public forums) and pure religious worship (which exceeded the boundaries of the forums). Faith Center, 480 F.3d at 913.
Whether described as speech from a religious perspective or speech about American history and culture, through display of his classroom banners, Johnson was simply exercising his free speech rights on subjects that were otherwise permitted in the limited public forum created by Defendants and in a manner that did not cause substantial disorder in the classroom. Thus, Johnson has made out a clear claim for relief for an ongoing violation [*28] of his First Amendment free speech rights. See, e.g., Kent School District, 524 F.3d at 973 (observing that in [HN11] a public high school limited public forum "where restriction to the forum is based solely on . . . religious viewpoint, the restriction is

invalid.").
3. Johnson's Speech is Not Curricular
Defendant also argue that Johnson's classroom wall banners are curricular speech. From this Defendants argue that if the banners are curricular speech, then the Poway Unified School District has absolute control over the curriculum and may dictate the content of what its teachers may or may not speak. To support this argument Defendants rely on Downs.
Downs applies to a much different context. In that case, a school district decided to set up bulletin boards in its schools upon which to post materials with the aim of "educating for diversity." 228 F.3d at 1012. The bulletin boards were supplied by the school district and erected in the school hallways. The materials to be posted on the bulletin boards were supplied by the school district, and because the school district had final authority over the content of the boards, all speech that occurred on the bulletin boards belonged to the school [*29] board and the school district. Id. The Ninth Circuit made clear that Downs involved only government speech in a nonpublic forum. Id. at 1013 and 1014-15. "We do not face an example of the government opening up a forum for either unlimited or limited public discussion. Instead, we face an example of the government opening up its own mouth." Id. at 1012. In that unique context, the court of appeals held that a teacher's free speech rights did not extend to postings on the diversity bulletin boards that harmed, rather than helped communicate the school district's own message. Id. at 1014. That is a far different case than Johnson's. Unlike Downs, it was Johnson who supplied the banners -- not the school district. It was Johnson who selected the content of the banners -- not the school district. It was Johnson who hung the banners inside his assigned school room. The school district did not erect the banners, and the banners were not erected outside the classroom in the school hallways. The Poway Unified School district created a limited public forum for teacher expression. Johnson was expressing his ideas in that forum in a manner that remarkably brought no complaints from students or [*30] parents or other teachers and school administrators for two decades. This was not a case of the school district electing to speak for itself on a particular topic as part of its selected curriculum. Downs is inapposite.
Defendants also point to the Fourth Circuit decision in Lee, 484 F.3d 687, asserting that "speech by a teacher

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in a classroom, regardless of the label placed on it by anyone, is curricular in nature." Defendants' Points and Authorities, at 6. Lee is unpersuasive for several reasons. First, it applied a Pickering/Connick analysis to educator speech on a classroom bulletin board instead of using a First Amendment forum analysis, as the Ninth Circuit does. Lee explained that it applied Pickering/Connick rather than Tinker because it decided that the bulletin board postings were part of the school curriculum.
Second, Lee's conclusion that the teacher's speech was curricular is unpersuasive. In that case, a high school teacher was assigned to teach Spanish. The Spanish teacher posted on a classroom bulletin board a National Day of Prayer poster and an article on White House staffers gathering for Bible study, among other things. The teacher maintained that he did not refer [*31] to the bulletin board items during instructional time. The school principal believed the items to be "irrelevant to the Spanish curricular objectives that Lee was obliged to follow within his class room." Id. at 691. Nevertheless, the Fourth Circuit defined broadly the concept of curricular speech and found the postings were, in fact, curricular in nature, although not related to teaching Spanish. Id. at 700. Thus, when the Spanish teacher posted materials unrelated to teaching Spanish, the school principal removed the materials as unrelated to the curriculum. The Fourth Circuit determined that the materials were curricular and therefore speech of the school rather than speech of the teacher. In that way, it found the speech to be unprotected by the First Amendment, which this Court sees as an unnecessarily cramped view.
Third, in arriving at its conclusion, the Lee court dealt with different facts in two significant respects. Lee found it significant that the classroom bulletin board was "school-owned and -controlled." In other words, the materials were "not posted on a private bulletin board owned by Lee." Id. at 699. In Johnson's class, in contrast, the banners were designed, created [*32] and paid for by Johnson, not the school. Lee also dealt with a school policy limiting teacher postings to material that related to the curriculum being taught. Id. at 690-91. In Johnson's school, the policy permitted a much broader swath of speech untethered to any particular curricular subject. Consequently, Lee's conclusion that all teacher speech is curricular is not persuasive.
4. Undifferentiated Fear of Future Establishment

Clause Litigation
Lastly, Defendants argue that removing Johnson's banners was justified in order to avoid Establishment Clause lawsuits by "someone in the future." Defendants' Points and Authorities, at 10-11. Defendants offer little authority for their argument; case law suggests otherwise. See Morse, at 2625-26 (a school's desire to avoid controversy, which might result from unpopular viewpoints is not enough to justify banning "silent, passive expression of opinion, unaccompanied by any disorder or disturbance."). They do note the Downs dicta that a teacher's citation to passages from the Bible on the school's hallway bulletin board "might present Establishment Clause problems." Id. (quoting Downs, 228 F.3d at 1015). Defendants then posit that cumulative [*33] effect of the references to God on the banners might be seen as the school advancing one religion, "the religion where God is the figurehead." Id. at 11. Defendants argument is both speculative and imprecise. The messages on Johnson's banners do not describe or advance any particular religion. The banners do not quote from the Holy Bible, or books of other particular religions such as the Jewish Torah, the Islamic Koran, the Mormon Book of Mormon, the Buddhist Diamond Sutra, or the Hindu Bhagavad-Gita. To argue that they advance an encompassing undifferentiated "religion where God is the figurehead" makes some sense only in a citizenry where there are only two beliefs: one acknowledging God; one denying God. Such is not the case. See Arizona Life Coalition, 515 F.3d at 971 (It is an "insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech. Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas.") (quoting Rosenberger, 515 U.S. at 823). Even through that lens, the banners do not advocate for the existence of God. Instead, [*34] they highlight historic and patriotic themes that in themselves have acknowledged God's existence. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 34, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (O'Connor, J., concurring) ("It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths. Eradicating such references would sever ties to a history that sustains this Nation even today."); Aronow v. U.S., 432 F.2d 242, 243 (9th Cir. 1970) ("[HN12] It is quite obvious that the national motto and the slogan on coinage and currency 'In

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God We Trust' has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.").
[HN13] That God places prominently in our Nation's history does not create an Establishment Clause problem requiring curettage and disinfectant of Johnson's classroom walls. It is a matter of historical fact that our institutions and government actors have in past and present times given place to a supreme God. "We are a religious people whose institutions presuppose a Supreme Being." [*35] Zorach v. Clauson, 343 U.S. 306, 313, 72 S. Ct. 679, 96 L. Ed. 954 (1952). The incidental government advancement of religion is permissible. "Our precedents plainly contemplate that on occasion some advancement of religion will result from government action." Lynch v. Donnelly, 465 U.S. 668, 683, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984) (American history is replete with official invocation of Divine guidance in pronouncements of Founding Fathers and government leaders). The Constitution "permits government some latitude in recognizing and accommodating the central role religion plays in our society . . . . Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious." County of Allegheny v. ACLU, 492 U.S. 573, 657, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (Kennedy, J., concurring and dissenting).
The language of Lamb's Chapel, 508 U.S. at 395, is equally appropriate in regard to the Defendants unavailing justification argument in this case: "[w]e have no more trouble than did the Widmar [v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981)] Court in disposing of the claimed defense on the ground that the posited fears of [*36] an Establishment Clause violation are unfounded . . . there would have been no realistic danger that the community would think that the [School] District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental." In the case at bar, according to the allegations in the First Amended Complaint, there is no realistic danger that the community would think that the Poway Unified School District was endorsing any particular religion or any particular church or creed by permitting Johnson's personal patriotic banners to remain on his classroom

wall at the same time as other teachers were permitted to display their own individual expressions on their assigned classroom walls. See also Hills, 329 F.3d at 1055 ("We agree with the Seventh Circuit that [HN14] the desirable approach is not for schools to throw up their hands because of the possible misconception about endorsement of religion, but that instead it is 'far better to teach students about the first amendment, about the difference between private and public action, about why we tolerate divergent views. The school's proper response is to educate the audience rather [*37] than squelch the speaker.'") (quoting Hedges v. Wauconda Community United Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993)). 2
2 This would be a different case if, for example, it was the State of California requiring by statute that a copy of the Ten Commandments be displayed on Johnson's classroom wall. See Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66 L. Ed. 2d 199. (1980) (per curiam) (striking down Kentucky statute requiring Ten Commandments be posted in every public school classroom as violating Establishment Clause).
Defendants' motion to dismiss Plaintiff's First Claim for Relief for the violation of freedom of speech under the First Amendment to the U.S. Constitution is denied. Because Defendants agree that Johnson's Fourth Claim for Relief under the California Constitution is determined by First Amendment jurisprudence, Defendant's motion to dismiss the Fourth Claim for Relief is also denied. California Teachers Assn. v. Governing Board, 45 Cal. App. 4th 1383, 1391, 53 Cal. Rptr. 2d 474 (1996); see also San Leandro Teachers Ass'n v. Governing Bd. Of the San Leandro Unified School Dist., 154 Cal. App. 4th 866, 65 Cal. Rptr. 3d 288 (2007) (government restrictions on speech in nonpublic forum must be viewpoint neutral).
B. The Establishment Clause [*38] Claims
Johnson's Second and Sixth Claims for relief assert Defendants violated the Establishment Clause of the First Amendment and the California Constitution. Defendants move to dismiss both. Johnson's claim is simple: by squelching his speech and taking the position that "his banners were impermissible because they conveyed a 'Judeo-Christian' viewpoint," while at the same time permitting the speech of other teachers about Buddhist and Islamic religions to remain on classroom walls, Defendants are using the weight of government to prefer

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some religions while expressing hostility toward his own religion. This, of course, the Establishment Clause forbids. "[HN15] The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244, 102 S. Ct. 1673, 72 L. Ed. 2d 33 (1982); School Dist. of Abington v. Schempp, 374 U.S. 203, 225, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) ("We agree of course that the State may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus 'preferring those who believe in no religion over those who do believe.'").
Defendants argue that they were only enforcing religious neutrality. [*39] Defendants' Reply, at 6. The facts alleged in the First Amended Complaint paint a different picture. To recap, other teachers are permitted to display Buddhist messages, Tibetan prayer flags, and Islamic messages. First Amended Complaint, at P 22. Such speech is obviously religious. At the same time, Defendant school principal Kastner "told Plaintiff that his banners were impermissible because they conveyed a 'Judeo-Christian' viewpoint." Id. at P 42. As alleged, the facts state an unequivocal case of government hostility, not neutrality, towards what Defendants perceive to be the Judeo-Christian viewpoint. 3
3 Whether the messages on Johnson's banners convey a Jewish or Christian viewpoint, or neither, is a debatable issue. In some sense it depends on the message of the authors quoted or the interpretation of the reader. But, for purposes of stating a claim for relief for violation of the Establishment Clause, it is sufficient to allege that the government actor, school principal Kastner, perceived Johnson's expression to be religious and suppressed his speech for that reason.
As the Ninth Circuit explained in another public school setting where the Establishment Clause was violated, [*40] "[t]he [HN16] message of an open-forum policy is one of neutrality, not endorsement, while discriminating against religious groups would demonstrate hostility, not neutrality, toward religion." Ceniceros v. Board of Trustees of the San Diego Unified Sch. Dist., 106 F.3d 878, 882 (9th Cir. 1997); County of Allegheny v. A.C.L.U., 492 U.S. 573, 593, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (Establishment Clause inquiry is whether the government "conveys or attempts to convey a message that religion or a particular religious

belief is favored or preferred.") (quoting Wallace v. Jaffree, 472 U.S. 38, 70, 105 S. Ct. 2479, 86 L. Ed. 2d 29 (1985) (O'Connor, J., concurring in part and concurring in judgment)).
Accepting as true for purposes of a motion to dismiss the allegations set forth in the First Amended Complaint, Johnson has successfully stated a valid Establishment Clause hostility claim by alleging that Defendants permit or favor Buddhist and Islamic speech by teachers but forbid or are hostile toward the Judeo-Christian speech of Johnson. Therefore, Defendants' motion to dismiss Plaintiff's Second Claim for Relief for violation of the Establishment Clause is denied.
Because Defendants agree that Johnson's Sixth Claim for Relief under the California Constitution [*41] is determined by First Amendment jurisprudence, Defendant's motion to dismiss the Sixth Claim for Relief is also denied. Paulson v. Abdelnour, 145 Cal. App. 4th 400, 420, 51 Cal. Rptr. 3d 575 (2006) ("[HN17] The construction given by California courts to the establishment clause of article I, section 4, is guided by decisions of the United States Supreme Court.").
C. The State "No Preference" Clause Claim
Johnson's Fifth Claim for Relief asserts a claim solely under the California Constitution's No Preference Clause. Defendants move to dismiss, once again arguing that there are no facts pled which suggest the Defendants acted with preference for one religion over another. Defendants' Points and Authorities, at 17. Defendants' argument does not square with a plain reading of the First Amended Complaint.
[HN18] The No Preference Clause reads: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed." Cal.Const. art. I, § 4. "The California courts have interpreted the no preference clause to require that not only may a governmental body not prefer one religion over another, it also may not appear to be acting preferentially." Tucker v. State of Cal. Dept. of Educ., 97 F.3d 1204, 1214 (9th Cir. 1996) [*42] (citations omitted). While, the California Supreme Court has not had occasion to definitively construe the reach of the clause, (see Barnes-Wallace v. City of San Diego, 530 F.3d 776, 788 (9th Cir. 2008)), since Johnson has adequately alleged that Defendants acted in a way that either prefers, or appears to prefer, Buddhist and Islamic viewpoints over Jewish and Christian viewpoints, he has

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successfully stated a claim for relief for violation of California's No Preference Clause. Defendants' motion to dismiss the Fifth Claim for Relief is denied.
D. The Equal Protection Claim
Johnson's remaining claim for relief is the Third Claim asserting a violation of the Equal Protection Clause of the Fourteenth Amendment. Defendants move to dismiss, still arguing that there are no facts pled which suggest the Defendants treated Johnson differently from other similarly situated teachers at the Westview High School. Defendants' Points and Authorities, at 16. As discussed previously, Defendants' argument does not square with a plain reading of the First Amended Complaint.
[HN19] The Supreme Court teaches that "[w]hen government regulation discriminates among speech-related activities in a public forum, the [*43] Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized." Carey v. Brown, 447 U.S. 455, 461-62, 100 S. Ct. 2286, 65 L. Ed. 2d 263 (1980). In Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972), the Court explains:
Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.

Reading Johnson's First Amended Complaint, the allegations are [*44] sufficient to make out a claim for relief that Defendants violated his rights under the Equal Protection Clause. Defendants opened up a forum for teacher expression. Having maintained the forum for decades, Defendants violated Johnson's rights when they acted to prohibit his speech and order his banners removed based on the content and viewpoint of what he was expressing while permitting other teacher speech to continue unfettered. Thus, Johnson's Equal Protection claim, the Third Claim for Relief, also survives Defendants' Motion to Dismiss.
E. Qualified Immunity
The individual Defendants argue that they are entitled to qualified immunity. Qualified immunity is an immunity from suit rather than a mere defense to liability. Butler v. San Diego Dist. Attorney's Office, 370 F.3d 956, 963 (9th Cir. 2004) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)). "Thus, [HN20] in the usual case where a defendant asserts an official immunity defense, the district court first decides whether the facts alleged in the complaint, assumed to be true, yield the conclusion that the defendant is entitled to immunity. This is the analysis under Rule 12(b)(6) on a motion to dismiss. Id. (citations omitted). [*45] If a plaintiff survives the motion to dismiss, he is entitled to enough discovery to permit the court to rule on a subsequent summary judgment motion. Id.
"[HN21] Defendants are entitled to qualified immunity only if the law at the time of the alleged constitutional violation was not clearly established." Flores v. Morgan Hill Unified School Dist. 324 F.3d 1130, 1136-37 (9th Cir. 2003). "In order to find that the law was clearly established, however, we need not find a prior case with identical, or even materially similar, facts." Id. (citing Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002)). The task is determining "whether the preexisting law provided the defendants with fair warning that their conduct was unlawful." Id.
In this case, the law has been clearly established since Tinker that school teachers enjoy First Amendment rights inside the schoolhouse gates. It is also clearly established law that where free speech is permitted on government property, government may not discriminate based on the speakers' viewpoint. The school district and its administration apparently acted in conformity with

2008 U.S. Dist. LEXIS 107665, *45

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these clearly established principles for 25 years. When Defendants suddenly changed course in 2007, as alleged [*46] in the First Amended Complaint, they did so in violation of clearly established federal and state constitutional law and with fair warning that their conduct was unlawful. Therefore, at least at the pleading stage of litigation, the individual Defendants are not entitled to qualified immunity from suit.
F. Eleventh Amendment Immunity
Because Poway Unified School District is considered an agency of the State of California, it argues that it is entitled to immunity from suit under the Eleventh Amendment to the U.S. Constitution. Will v. Michigan Dept. of State Police, 491 U.S. 58, 62, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); Belanger v. Madera Unified School Dist., 963 F.2d 248, 251 (9th Cir. 1992), cert. denied, 507 U.S. 919, 113 S. Ct. 1280, 122 L. Ed. 2d 674 (1993) ([HN22] school districts treated as state agencies). If Johnson were seeking money damages against the school district, the argument would be correct. However, Johnson is seeking declaratory and prospective injunctive relief alleging ongoing constitutional violations. As a result, the Eleventh Amendment does not immunize from suit either the school district or the individual defendants acting in their official capacities. Pittman v. Oregon, Employment Dept., 509 F.3d 1065, 1071 (9th Cir. 2007) (citing [*47] Ex Parte Young, 209 U.S. 123, 156-57, 28 S. Ct. 441, 52 L. Ed. 714 (1908)); Flint, 488 F.3d at 825 (same).

V. CONCLUSION
Public schools play an important role educating and guiding our youth through the marketplace of ideas and instilling national values. One method used by the Poway Unified School District to accomplish this task is to permit students to be exposed to the rich diversity of backgrounds and opinions held by high school faculty. In this way, the school district goes beyond the cramped view of selecting curriculum and hiring teacher speech to simply deliver the approved content of scholastic orthodoxy. By opening classroom walls to the non-disruptive expression of all its teachers, the district provides students with a healthy exposure to the diverse ideas and opinions of its individual teachers, without necessarily endorsing or dictating adherence to the ideas expressed. By squelching only Johnson's patriotic expression, the school district does a disservice to the students of Westview High School and the federal and state constitutions do not permit such one-sided censorship.
Defendants' Motion to Dismiss is denied.
Dated: September 4, 2008.
/s/ Roger T. Benitez
ROGER T. BENITEZ
UNITED STATES DISTRICT [*48] JUDGE

 
 Page 1
View U.S. District Court Opinion
View Original Source Image of This Document BRADLEY JOHNSON, Plaintiff, v. POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM, LINDA VANDERVEEN, ANDREW PATAPOW, TODD GUTSCHOW, and PENNY RANFTLE, all individually and in his or her official capacity as a Member of the Board of Education for the Poway Unified School District; DR. DONALD A. PHILLIPS, individually and in his official capacity as Superintendent of the Poway Unified School District; WILLIAM R. CHIMENT, individually and in his official capacity as Assistant Superintendent of the Poway Unified School District; and DAWN
KASTNER, individually and in her official capacity as Principal, Westview High School, Poway Unified School District, Defendants. CASE NO. 07cv783 BEN (NLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75414 August 14, 2009
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s) COUNSEL: [*1] Charles S. LiMandri, Esq. (California State Bar No. 110841), LAW OFFICES OF CHARLES S. LiMANDRI WEST COAST REGIONAL OFFICE OF THE THOMAS MORE LAW CENTER, Rancho Santa Fe, California, Robert J. Muise, Esq. * (Michigan State Bar No. P62849), THOMAS MORE LAW CENTER, Ann Arbor, Michigan, * Admitted pro hac vice, Counsel for Plaintiff. JUDGES: Hon. Roger T. Benitez TITLE: Plaintiff's Notice Of Motion And Motion For Summary Judgment TEXT: TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on November 16, 2009, at 10:30 a.m., or as soon thereafter as the matter may be heard in Courtroom 3, before the Honorable Roger T. Benitez, United States District Judge, Plaintiff Bradley Johnson, by and through his undersigned attorneys, will and hereby does move this Court pursuant to Fed. R. Civ. P. 56 for summary judgment in his favor as to all claims. Plaintiff contends that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law.

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In support of his motion, Plaintiff relies upon the pleadings and papers of record, as well as Plaintiff's Memorandum of Points and Authorities in Support of Motion for Summary [*2] Judgment, Plaintiffs' Statement of Undisputed Material Facts, and the declaration, depositions, and exhibits attached thereto.
WHEREFORE, Plaintiff respectfully asks this court to grant his motion, enter judgment in his favor as to all claims, and award him nominal damages for the past loss of his constitutional rights. Plaintiff also requests attorneys' fees and costs pursuant to 42 U.S.C. § 1988, California Code of Civil Procedure § 1021.5, and other applicable law.
Respectfully submitted,
THOMAS MORE LAW CENTER
By: /s/ Robert J. Muise Robert J. Muise, Esq. * Admitted pro hac vice Charles S. LiMandri, Esq.
Counsel for Plaintiff Bradley Johnson
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
When deciding this motion, the court need not work off of a blank slate. In its decision denying the School District's motion to dismiss (Doc. No. 25), this court set forth the relevant and controlling case law that will ultimately decide this case. In light of this controlling law and the undisputed material facts uncovered during the course of discovery, Plaintiff [*3] Bradley Johnson contends that he is entitled to a judgment in his favor on all claims as a matter of law.
As this court noted previously, it is without question that public school teachers have constitutional rights, including the right to freedom of speech, and that California school officials, who are acting on behalf of the government, are restrained in their actions by the United States and California Constitutions. (Doc. No. 25). Indeed, it has been "the unmistakable holding" of the United States Supreme Court for decades that neither "students [nor] teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Consequently, teachers, such as Plaintiff, do have rights, and when government officials violate those rights, they should be held accountable, as in this case.
STANDARD OF REVIEW
"Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) [*4] (internal quotations omitted).
Federal Rule of Civil Procedure 56 provides that a motion for summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
The Rule 56 "standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

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In the present case, there is no genuine issue of material fact and Plaintiff is entitled to judgment in his favor as to all claims as a matter of law.
STATEMENT OF FACTS
Plaintiff is currently a public school math teacher at Westview High School in the Poway Unified School District (hereinafter "School District"). He has taught math in the School District for more than 30 years. During these 30 plus years, he has taught at 3 different [*5] high schools in the district, including Mt. Carmel High School (1977 to 1989), Rancho Bernardo High School (1990 to 2002), and now Westview High School (2003 to present). (SOMF at PP 1-4). n1 Plaintiff has a strong reputation as a teacher; he continues to be one of the highest rated math teachers at Westview High School. (SOMF at P 19).

n1 "SOMF" refers to Plaintiff's Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, which was filed along with this brief.
The School District believes that public schools play an important role educating and guiding our youth through the marketplace of ideas and instilling national values. One method used by the School District to accomplish this task is to permit students to be exposed to the rich diversity of backgrounds and opinions held by high school faculty. n2 (SOMF at PP 63, 64).

n2 The School District permits its teachers to participate in the "day of silence"-a pro-gay rights activity-on School District property with the students so long as the teacher's participation does not disrupt the teaching of his or her classes. (SOMF at P 65).
[*6]
Accordingly, for the past 30 plus years, the School District has adopted a policy, practice, and/or custom of permitting teachers to display in their classrooms various non-curricular messages and other items that reflect the individual teacher's personality, opinions, and values regarding a wide range of interests and subject matter. Consequently, for the past 30 plus years, the classroom walls have served and continue to serve as a forum for teachers to convey non-curricular messages on subjects that interest them. (SOMF at PP 35-50).
Pursuant to this long-standing School District policy, practice, and/or custom, teachers have displayed and continue to display in their classrooms such non-curricular materials as posters of rock bands and musicians; a poster of the controversial song Imagine written by John Lennon; posters of various professional athletes and professional sports teams; family photographs; non-student artwork; posters and other items, such as bumper stickers, decals, and buttons, promoting and advocating a viewpoint on social and political issues such as gay rights, global warming, animal research, the environment, anti-war/peace, the military, and others. (SOMF [*7] at PP 36-39, 42-50).
Pursuant to this policy, practice, and/or custom, the School District has allowed teachers to display Tibetan prayer flags, which are considered sacred items by those who practice the religion of Buddhism. n3 Teachers have also displayed and continue to display nature pictures; inspirational messages on posters and banners; patriotic messages on posters, banners, and flags; movie posters; posters of famous religious leaders, such as Gandhi (Hindu), the Dali Lama (Buddhist), and the controversial Malcolm X (the Nation of Islam/Islam); and items of particular political parties and/or candidates, including a campaign poster of candidate Obama, a Newsweek magazine cover of the candidates Obama and Biden; and a poster of the "Libertarian Party." (SOMF at PP 36-39, 42-50, 53-54).

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n3 Buddhists believe that these flags impart a spiritual blessing upon those in the presence of the flags. (SOMF at P 53).
Permissible subject matter for this forum for teacher speech includes, inter alia, [*8] the foundations of our Nation, patriotic messages, inspirational messages, historical messages, and slogans that are praiseworthy of our Nation. (SOMF at P 37).
Pursuant to this School District policy, practice, and/or custom, for approximately 25 years, Plaintiff continuously displayed, without any objections from the School District or its administrators, on his classroom walls various patriotic banners that reflect the history and heritage of our Nation. Plaintiff had the banners made to order by a private company and purchased them with his own personal funds. The banners do not belong to the School District; they are Plaintiff's personal items. (SOMF at PP 20-23).
Plaintiff's banners contain well-known historical, patriotic phrases and slogans central to our Nation's history and heritage, and they reflect the foundations of our Nation. The banners do not contain quotes or passages from Sacred Scripture or any other religious text. (SOMF at PP 68-88).
The classrooms in which Plaintiff's banners were displayed were assigned to him. His current classroom in Westview High School is his classroom for homeroom and academic classes. He has also uses his classroom for non-curricular [*9] and extra-curricular activities. (SOMF at P 25).
It was and continues to be a matter of School District policy, practice, and/or custom that teachers are given discretion and control over the various non-curricular messages displayed on their classroom walls. For example, no teacher is permitted to display materials or messages on Plaintiff's classroom walls without his permission, and the School District does not direct the teachers' non-curricular displays; it is up to the individual teacher. (SOMF at PP 32-34).
Plaintiff's banners contain the following historical, patriotic phrases: "In God We Trust," the official motto of the United States; "One Nation Under God," the 1954 amendment to the Pledge of Allegiance; "God Bless America," a patriotic song; "God Shed His Grace On Thee," a line from "America the Beautiful," a patriotic song; and "All Men Are Created Equal, They Are Endowed By Their Creator," an excerpt from the preamble to the Declaration of Independence. (SOMF at PP 68-88). Consequently, the subject matter of Plaintiff's speech was permissible in this forum. (SOMF at PP 37, 103, 104).
Plaintiff's banners were not displayed pursuant to any of his official duties as a [*10] teacher. He did not use his banners during any classroom session or period of instruction. His banners caused no material disruption or disorder in his classroom or anywhere else in the school. His banners did not interfere with the teaching of his classes. And his banners were not expressing a message on behalf of the School District. (SOMF at PP 26-27, 60-63, 90, 98).
Plaintiff's long-standing practice of displaying his banners came to an abrupt end when on or about January 23, 2007, Defendants ordered him to remove the banners. n4 Defendants directed Plaintiff to remove his banners because the School District believed that the banners were promoting a "Christian" or "Judeo/Christian" viewpoint. On behalf of the School District, Defendant William Chiment, Assistant Superintendent at the time, n5 sent a letter to Plaintiff explaining the order to remove the banners. In the letter, Defendant Chiment stated that Plaintiff's banners conveyed an impermissible "sectarian viewpoint" and, more specifically, "a particular sectarian viewpoint." The "particular sectarian viewpoint" noted in the letter was referring to the viewpoint of "those religious groups who refer to a supreme being as [*11] God," such as Christians. Defendant Dawn Kastner, Plaintiff's principal at Westview High School, believed that Plaintiff's banners were impermissible because they expressed a "Christian" viewpoint. (SOMF at PP 91-96, 100).

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n4 Prior to the School District's decision to order Plaintiff to remove his banners in 2007, the School District received no complaints about the banners from students, teachers, parents, or School Board members. The only complaint to the School District came from Defendant Kastner in the fall of 2006, and this complaint resulted in the decision to remove the banners. (SOMF at P 29). n5 Defendant Chiment's present title is "Associate Superintendent." (See SOMF at P 13).
At the time Defendants directed Plaintiff to remove his banners, they had no evidence that Plaintiff's banners caused any material disruption or disorder in the School District. Defendants' removal of Plaintiff's banners was not curriculum related; Plaintiff was teaching and continues to teach his assigned mathematics [*12] curriculum. Defendants singled out Plaintiff for disfavored treatment because of the viewpoint expressed by his message. (SOMF at PP 98-100, 102, 105).
The decision to order Plaintiff to remove his banners was approved by Defendants Chiment and Kastner, the Superintendent, Defendant Donald Phillips, and the School Board. (SOMF at PP 5-18, 97).
Plaintiff wants to display his banners in his classroom; however, Defendants have prohibited him from doing so. Had Plaintiff not complied with Defendants' order to remove his banners, Plaintiff would have been subject to some form of disciplinary action for insubordination. (SOMF at PP 101, 106).
ARGUMENT
I. Defendants Violated Plaintiff's First Amendment Right to Freedom of Speech.
A. Public School Teachers Possess Constitutional Rights.
"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate." Tinker, 393 U.S. at 506 ("First Amendment rights . . . are available to teachers and students."); Morse v. Frederick, 127 S.Ct. 2618, 2625 (2007) ("In Tinker, this Court made clear that 'First [*13] Amendment rights applied in light of the special characteristics of the school environment' are available to teachers and students."); Perry Educ. Ass'n v. Perry Local Educators, 460 U.S. 37, 44 (1983) ("The First Amendment's guarantee of free speech applies to teacher's mailboxes as surely as it does elsewhere within the school and on sidewalks outside.") (internal citation and punctuation omitted); see also James v. Board of Educ., 461 F.2d 566 (2d Cir. 1972) (acknowledging teacher's First Amendment right to wear a black armband in protest of Vietnam War). Consequently, Plaintiff is afforded the protections of the United States and California Constitutions as a public school teacher. And it is without question that Plaintiff's constitutional rights are implicated by the School District's viewpoint-based restriction on his speech. See Perry, 460 U.S. at 44 ("There is no question that constitutional interests are implicated by denying [appellee] use of the interschool mail system."); Keyishian v. Board of Regents, 385 U.S. 589, 605-06 (1967) ("[T]he theory that public employment . . . may be subjected to any conditions, [*14] regardless of how unreasonable, has been uniformly rejected.").
The challenged restriction, which singled out Plaintiff's speech based on its viewpoint-specifically, because it expressed "a particular sectarian viewpoint" (i.e., Christian)-is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that Plaintiff's speech had to be banned. See Lee v. Weisman, 505 U.S. 577, 587 (1992) (holding that a school official's decision to permit a member of the clergy to give an invocation and benediction at the school's graduation ceremony was "a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur").
B. Plaintiff's Banners Are Speech.

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It cannot be denied that Plaintiff's banners constitute speech. See Hill v. Colorado, 530 U.S. 703, 715 (2000) ("[S]ign displays . . . are protected by the First Amendment"); United States v. Grace, 461 U.S. 171, 176-77 (1983) (demonstrating with signs and banners constitutes speech under the First Amendment); Brown v. California Dep't of Transportation, 321 F.3d 1217 (9th Cir. 2003) [*15] (enjoining policy restricting the display of signs or banners on highway overpass fences under the First Amendment). Moreover, Plaintiff's speech did not disrupt the classroom nor materially interfere with the basic educational mission of the School District. n6 And his banners were displayed in a forum for teacher speech created by the School District.

n6 The "special characteristics of the school environment" permit restrictions on speech only so long as the speech "materially and substantially disrupt[s] the work and discipline of the school." Tinker, 393 U.S. at 513; see also Grayned v. City of Rockford, 408 U.S. 104 (1972) (same). As the undisputed evidence shows, Plaintiff's banners did not substantially disrupt the work and discipline of the school. Indeed, his banners had been displayed without objection for 25 years.
C. Defendants Created a Forum for Plaintiff's Speech.
To determine the extent of Plaintiff's free speech rights on School District property, [*16] the court must engage in a First Amendment forum analysis. Arizona Life Coal., Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir. 2008) ("The first step in assessing a First Amendment claim relating to private speech on government property is to identify the nature of the forum.") (internal quotations omitted).
"The [U.S. Supreme] Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for expressive purposes." Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800 (1985); see Flint v. Dennison, 488 F.3d 816, 828-30, n.9 (9th Cir. 2007) (noting that it is error to not conduct a forum analysis and further noting the U.S. Supreme Court has reinforced "the conclusion that we must analyze [the public school speech restriction at issue] within the confines of traditional forum analysis"); n7 Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044, 1048 (9th Cir. 2003) ("To analyze his [First Amendment free speech] claim, we must first consider what [*17] type of forum the [school] District has created.").

n7 In Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988), the Supreme Court applied its forum analysis in the context of a public high school. The Court specifically noted that school facilities-such as the classroom walls in this case-could be deemed "public forums" for First Amendment purposes if school authorities "by policy or by practice" opened those facilities for use "by some segment of the public, such as student organizations"-or, as here, teachers. Id.
"Forum analysis has traditionally divided government property into three categories: public fora, designated public fora, and nonpublic fora." Flint, 488 F.3d at 830 (citation omitted). "Once the forum is identified, we determine whether restrictions on speech are justified by the requisite standard." Id. "On one end of the fora spectrum lies the traditional public forum, 'places which by long tradition . . . have been devoted to assembly and [*18] debate.' Next on the spectrum is the so-called designated public forum, which exists '[w]hen the government intentionally dedicates its property to expressive conduct.'" Id. (citations omitted). As the Supreme Court stated, "[A] public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Cornelius, 473 U.S. at 802 (emphasis added).

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In a public or designated public forum, restrictions on speech are subject to strict scrutiny. Flint, 488 F.3d at 830.
In Widmar v. Vincent, 454 U.S. 263, 264-65 (1981), for example, the Court was presented with "the question whether a state university, which makes its facilities generally available for the activities of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion." In deciding the question, the Court stated, "Through its policy of accommodating their meetings, the University has created a forum generally open for use [*19] by student groups. Having done so, the University has assumed an obligation to justify its discrimination and exclusions under applicable constitutional norms. . . [e]ven if it was not required to create the forum in the first place." n8 Id. at 267-68. Consequently, the Court considered the forum to be a designated public forum, and because the university singled out religious expression for exclusion from this forum (a content-based restriction), the Court applied strict scrutiny and struck down the challenged regulation. Id. at 270 & 277 ("It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.").

n8 The facilities in question were not generally open to the public. See, Widmar, 454 U.S. at 267, n.5 ("We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.").
[*20]
Arguably, in this case the School District created a forum generally open "for use by certain speakers" (i.e., teachers), thereby creating a designated public forum for this speech. And because Defendants singled out Plaintiff's expression for exclusion from this forum based not only on its content (which is fatal), but its viewpoint (which is doubly fatal), this court should apply strict scrutiny and strike down the challenged restriction.
Nonetheless, "[a]t the opposite end of the fora spectrum is the non-public forum. The non-public forum is '[a]ny public property that is not by tradition or designation a forum for public communication.'" Flint, 488 F.3d at 830 (citations omitted). In a nonpublic forum government restrictions are subjected to less-exacting judicial scrutiny. There a government may restrict free speech if it acts reasonably and does not suppress expression merely because public officials oppose one speaker's view. Id. (citations omitted).
The Ninth Circuit also recognizes a "limited public forum" as a subcategory of the designated public forum. See id. at 830-31. A "limited public forum" is "a type of nonpublic forum that [*21] the government has intentionally opened to certain groups or to certain topics." Id. at 831. "Once a government has opened a limited forum, it must respect the lawful boundaries it has itself set." n9 Id. at 831 (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)) (internal quotations and punctuation omitted). Accordingly, in a limited public forum "the government may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may the government discriminate against speech on the basis of its viewpoint." Flint, 488 F.3d at 831 (citations, punctuation, and quotations omitted).

n9 Certainly, if Defendants wanted to take the draconian step of removing all personal expressive items from the classroom walls, thereby closing the forum to all speech, it could do so. But once it has created this forum, it cannot pick and choose based on the viewpoint of the speaker which messages are acceptable and which are not. As the Supreme Court stated long ago in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

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[*22]
In the present case, the undisputed evidence shows that pursuant to a long-standing policy, practice, and/or custom, the School District created, at a minimum, a "limited public forum" that is generally open for use by teachers, including Plaintiff, to express a variety of messages, including personal, non-curricular messages. Pursuant to this policy, practice, and/or custom, teachers displayed and continue to display on their classroom walls messages and other items that reflect the individual teacher's personality, opinions, and values with regard to a wide range of subject matter, including social and political concerns. Permissible subject matter includes, inter alia, patriotic messages, historical messages, inspirational messages, and messages regarding the foundations of our Nation. Pursuant to this policy, practice, and/or custom, teachers have discretion and control over the messages they wish to convey in this forum.
D. Defendants' Viewpoint Restriction Violates the First Amendment.
Pursuant to controlling case law, if certain speech "fall[s] within an acceptable subject matter otherwise included in the forum, the State may not legitimately exclude it from the [*23] forum based on the viewpoint of the speaker." Cogswell v. City of Seattle, 347 F.3d 809, 815 (9th Cir. 2003). And viewpoint discrimination occurs when the government "denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Cornelius, 473 U.S. at 806; see also Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 971 (9th Cir. 2002) (acknowledging that "where the government is plainly motivated by the nature of the message rather than the limitations of the forum or a specific risk within that forum, it is regulating a viewpoint").
Accordingly, because Defendants singled out Plaintiff's speech in this forum based on its viewpoint, Defendants' speech restriction cannot survive constitutional scrutiny. As this court observed in its prior decision,
In this sense, Johnson's case is similar to Rosenberger, Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993) and Good News Club v. Milford Central School, 533 U.S. 98, 107-08 (2001). Each case involved viewpoint discrimination in a limited public forum. In Rosenberger, [*24] the Supreme Court found that by excluding funding to a student religious group solely because the religious group promoted a particular religious perspective, the university was discriminating in a limited public forum on the basis of that group's viewpoint. Rosenberger, 515 U.S. at 829-37. In Lamb's Chapel, a group desired to speak at a school facility on the issue of child rearing from a religious perspective. The school district denied access to speakers from using the school rooms for religious purposes. The Supreme Court unanimously held that the school district discriminated on the basis of viewpoint, and that the school district should have permitted speech from a religious perspective on subject matter permitted by the forum. Lamb's Chapel, 508 U.S. at 393. Similarly, in Good News Club, the Supreme Court found viewpoint discrimination where a public school excluded a Christian club from meeting on the school's grounds while permitting nonreligious groups to meet. Good News Club, 533 U.S. at 107-09. The Christian club simply sought to address a subject otherwise permitted in the limited public forum. Id. at 109. [*25] In Faith Center [Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007)], the Ninth Circuit reviewed these cases and drew a line between speech from a religious perspective (which was constitutionally protected in each of the limited public forums) and pure religious worship (which exceeded the boundaries of the forums). Faith Center, 480 F.3d at 913.
Whether described as speech from a religious perspective or speech about American history and culture, through display of his classroom banners, Johnson was simply exercising his free speech rights on subjects that were otherwise permitted in the limited public forum created by Defendants and in a manner that did not cause substantial disorder in the classroom. Thus, Johnson has made out a clear claim for relief for an ongoing violation of his First Amendment free speech rights. See, e.g., [Truth v.] Kent School District, 524 F.3d [957,] 973 [9th Cir. 2008] (observing that in a public high school limited public forum "where restriction to the forum is based solely on . . . religious viewpoint, the restriction is invalid"). (Doc No. 25 at 13-14). [*26]

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Indeed, speech restrictions in a nonpublic forum must be reasonable and viewpoint neutral. "Restrictions on free expression in a nonpublic forum are constitutional only if the distinctions drawn are (1) 'reasonable in light of the purpose served by the forum,' and (2) 'viewpoint neutral.'" Brown v. California Dep't of Transportation, 321 F.3d 1217, 1222 (9th Cir. 2003) (quoting Cornelius, 473 U.S. at 806); Perry, 460 U.S. at 46 (stating that speech restrictions in a nonpublic forum must be reasonable and viewpoint neutral)).
The "reasonableness" prong "focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated." Brown, 321 F.3d at 1222 (internal quotations and citation omitted). Here, Plaintiff's speech did not disrupt school work, nor did it cause material disorder or interference in the classroom. And Defendants' order to remove the banners was not curriculum related; Plaintiff's banners were not displayed as part of his official duties as a teacher nor were they part of his math curriculum, which he continues to teach today. The banners have never [*27] prevented Plaintiff from teaching his math curriculum, nor have they limited him in any way in the teaching of his math curriculum. In fact, Plaintiff was and continues to be one of the highest rated math teachers at Westview High School.
In sum, there is no justification for allowing posters of rock bands, posters promoting a particular viewpoint on gay rights or global warming, displays of Tibetan prayer flags, and the host of other displays and viewpoints permitted, but prohibiting Plaintiff's banners. As a result, Defendants' speech restriction fails the first prong because it is unreasonable.
Defendants' speech restriction also fails the second prong because it was not "viewpoint neutral," as noted previously. n10

n10 The Ninth Circuit has also "incorporated 'viewpoint neutrality' analysis into nonpublic forum, school-sponsored speech cases . . . ." Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1010 (9th Cir. 2000) (citing Planned Parenthood v. Clark County Sch. Dist., 941 F.2d 817, 828 n. 19, 829-30 (9th Cir. 1991)).
[*28]
In the final analysis, whether the classroom walls are a "designated public forum," a "limited public forum," or a "nonpublic forum" it makes little difference. Defendants' viewpoint-based restriction on Plaintiff's speech violates the First Amendment.
II. Defendants' Viewpoint Restriction Violates the Equal Protection Clause.
The principle of law at issue here was articulated in Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92 (1972). In Mosley, the Court struck down a city ordinance that prohibited all picketing within 150 feet of a school, except peaceful picketing of any school involved in a labor dispute. The Court held as follows: "[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views."
And in Carey v. Brown, 447 U.S. 455, 461-62 (1980), the Court stated that "[w]hen government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely [*29] tailored to serve substantial state interests, and the justification offered for any distinctions it draws must be carefully scrutinized."
Here, Defendants opened up a forum for teacher expression. Having maintained this forum for many decades, Defendants violated Plaintiff's rights when they prohibited his speech by ordering his banners removed based on the content and viewpoint of his message, while permitting other teachers to continue their speech in the same forum unfettered. Thus, Defendants violated the equal protection guarantee of the Fourteenth Amendment.

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III. Defendants' Restriction Violates the Establishment Clause.
As the Supreme Court admonished in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307, n.21 (2000), "[T]he Constitution . . . requires that [courts] keep in mind the myriad, subtle ways in which Establishment Clause values can be eroded and . . . guard against other different, yet equally important, constitutional injuries." One such way in which these "values" are eroded is by the government restricting speech simply because it allegedly conveys a "Christian" viewpoint, as in this case.
In 1952, the United States Supreme [*30] Court acknowledged the following historical reality: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952). From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion's role in American life. Examples of this historical acknowledgment include Executive Orders recognizing religiously grounded National Holidays, such as Christmas and Thanksgiving, Congress directing the President to proclaim a National Day of Prayer each year, and the printing on our currency of the national motto, "In God We Trust." As the United States Supreme Court acknowledged in Lynch v. Donnelly, 465 U.S. 668, 677-78 (1984):
One cannot look at even this brief resume [of historical examples of public religious expression] without finding that our history is pervaded by expressions of religious beliefs. . . . Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation, as Justice Douglas observed, governmental action has "follow[ed] the best [*31] of our traditions" and "respect[ed] the religious nature of our people." (quoting Zorach, 343 U.S. at 314).
Recognition of the role of God in our Nation's history and heritage is consistently reflected in Supreme Court decisions. The Court has acknowledged, for example, that religion has been closely identified with our history and government, and that the history of man is inseparable from the history of religion. Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound. As Justice O'Connor observed, "It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 35-36 (2004) (O'Connor, J., concurring in the judgment).
Efforts to suppress this recognition and historical acknowledgment, as demonstrated by Defendants' action here, are the antithesis of the value of religious tolerance that underlies the United States and California Constitutions.
The classroom is peculiarly the "marketplace of ideas." As a result, the [*32] First Amendment does not tolerate governmental policies, practices, and/or customs that cast a pall of orthodoxy over the classroom, such as Defendants' restriction, which prohibits Plaintiff from displaying his banners based on the "particular sectarian viewpoint" conveyed by his message.
A. Defendants' Restriction Disfavors Religion.
Throughout its decisions, the Supreme Court has consistently described the Establishment Clause as forbidding not only state action motivated by a desire to promote or "advance" religion, see, e.g., County of Allegheny v. A.C.L.U., 492 U.S. 573, 592 (1989), but also actions that tend to "disapprove" of, "inhibit," or evince "hostility" toward religion. See Edwards v. Aguillard, 482 U.S. 578, 585 (1987) ("disapprove"); Lynch, 465 U.S. at 673 ("hostility"); Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973) ("inhibi[t]").
As the Supreme Court noted in Epperson v. Arkansas, 393 U.S. 97, 104 (1968), "The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." Indeed, [*33] even subtle departures from neutrality are prohibited. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

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508 U.S. 520, 534 (1993).
In School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), the Court stated, "We agree of course that the State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe." Id. at 225 (internal quotations and citation omitted). As Justice Breyer stated in his concurrence in Van Orden v. Perry, 545 U.S. 677, 699 (2005), "[T]he Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. Such absolutism is not only inconsistent with our national traditions, but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid." (internal citations omitted).
In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993), the Court stated the relevant principle of law applicable here: "In [*34] our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general."
Thus, a restriction that disfavors "religion in general"-or worse, one that disfavors "a particular sectarian viewpoint," such as the restriction at issue here-violates the neutrality mandated by the Establishment Clause.
B. Defendants' Restriction Disfavors a Particular Religion.
In addition to mandating neutrality toward religion in general, the First Amendment also forbids hostility aimed at a particular faith. "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982); see also County of Allegheny, 492 U.S. at 608-09 ("[W]e have expressly required 'strict scrutiny' of practices suggesting 'a denominational preference.'"); Church of the Lukumi Babalu Aye, Inc, 508 U.S. at 532 (stating that the Establishment Clause "forbids an official purpose to disapprove of a particular religion"); Epperson, 393 U.S. at 103-04 [*35] (stating that the government "may not be hostile to any religion"); Lynch, 465 U.S. at 673 (stating that the Constitution "forbids hostility toward any" religion).
Remarkably, even though Plaintiff's speech expressed messages that had historical significance and did not contain religious text, Defendants censored the speech because they claimed that the banners conveyed an impermissible "Christian" viewpoint. Leaving aside the inaccuracy of that claim, n11 Defendants violated the Establishment Clause by singling out Plaintiff's speech because they believed it conveyed "a particular sectarian viewpoint."

n11 Indeed, Plaintiff's banners contain historical, patriotic phrases and slogans central to our Nation's history and heritage; the banners do not contain passages from Sacred Scripture or other religious texts. See, e.g., Lynch, 465 U.S. at 677-78; Elk Grove Unified Sch. Dist., 542 U.S. at 35-36 (O'Connor, J., concurring).
C. Defendants' Speech Restriction [*36] Violates Lemon and Its Modifications.
Defendants' speech restriction, which disfavored "a particular sectarian viewpoint" (i.e., a Christian viewpoint), violates the Establishment Clause as to its purpose and effect. And it creates an impermissible entanglement. See Lemon v. Kurtzman, 403 U.S. 602 (1971) (describing test for evaluating Establishment Clause claims).
1. The Purpose and Effect of Defendants' Restriction.
"The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of the government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid." See Lynch, 465 U.S. at 690 (O'Connor J., concurring).

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a. Purpose of Defendants' Restriction.
"While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham." Edwards, 482 U.S. at 586-87. The secular purpose requirement "reminds [*37] government that when it acts it should do so without endorsing [or disapproving of] a particular religious belief or practice . . . ." Wallace v. Jaffree, 472 U.S. 38, 75-76 (1985). And "[t]he eyes that look to purpose belong to an 'objective observer,' one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute or comparable official act." McCreary County v. A.C.L.U., 545 U.S. 844, 862 (2005) (internal quotations and citation omitted).
In this case, Defendants' stated purpose for their official act of removing Plaintiff's banners was to prohibit speech that, in their view, conveyed a "particular sectarian viewpoint," that being a "Christian" viewpoint. This purpose violates the Establishment Clause.
b. Effect of Defendants' Restriction.
The "effect" of Defendants' restriction, irrespective of Defendants' alleged "purpose" for enforcing it, conveys a message of disapproval of religion (and the Christian religion in particular) in violation of the Establishment Clause. See Lynch, 465 U.S. at 690 (O'Connor J., concurring) ("The effect prong asks [*38] whether, irrespective of the government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval."). As the Supreme Court explained, when evaluating the effect of government action under the Establishment Clause, courts must ascertain whether the challenged action is "sufficiently likely to be perceived" as a disapproval of religion. County of Allegheny, 492 U.S. at 597 (citations omitted) (emphasis added); see also Santa Fe Indep. Sch. Dist., 530 U.S. at 307, n.21 ("[T]he Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions.") (internal quotations and citations omitted). The clear effect of the School District's restriction is to show disapproval of religion in violation of the Establishment Clause.
2. Defendants' Restriction Fosters an Excessive Entanglement.
The third prong of the Lemon test asks whether the restriction at issue excessively entangles government with religion. Lemon, 403 U.S. at 612-13. In Widmar v. Vincent, the Supreme Court explained: "[T]he [*39] University would risk greater 'entanglement' by attempting to enforce its exclusion of 'religious worship' and 'religious speech.' Initially, the University would need to determine which words and activities fall within 'religious worship and religious teaching.' This alone could prove an impossible task in an age where many and various beliefs meet the constitutional definition of religion." Widmar, 454 U.S. at 272 n.11. (internal quotations and citations omitted). Accordingly, Defendants' attempt to exclude speech expressing a "Christian" or "Judeo/Christian" viewpoint creates "excessive entanglement" in violation of the Establishment Clause.
IV. Defendants Violated the California Constitution.
A. State Free Speech Claim.
Article 1, section 2 of the California Constitution generally provides broader protection for the exercise of free speech rights than the First Amendment. See Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899 (1979). However, federal law is typically followed for free speech claims arising in a school setting.
In California Teachers Ass'n v. Governing Bd. of San Diego Unified Sch. Dist., 45 Cal. App.4th 1383 (1996), [*40] for example, the California appellate court was asked to review a school district policy that prohibited all employees from wearing political buttons at worksites during work hours. The court held that under the California Constitution and the First Amendment as well the ban may be enforced in instructional settings but not in noninstructional settings. Id. at 1392-93. In its decision, the court relied upon U.S. Supreme Court precedent and noted, "[W]e find the federal authorities which discuss First Amendment principles in the fairly unique context of school regulation of curricular

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activities accurately weigh the competing interests of school administrators, teachers and students." Id. at 1391.
Implicit in the court's reliance on federal authority is the conclusion that the California Constitution would similarly prohibit a speech restriction that was viewpoint based. See San Leandro Teachers Ass'n v. Governing Bd. of the San Leandro Unified Sch. Dist., 154 Cal.App.4th 866 (2007) (stating that regulations restricting speech in a nonpublic forum must be reasonable and viewpoint neutral). Thus, for the reasons stated with regard [*41] to Plaintiff's First Amendment claim, Defendants have similarly violated article 1, section 2 of the California Constitution.
B. California Establishment Clause and No Preference Clause Violations.
1. California Establishment Clause.
The California courts generally adopt the federal Establishment Clause analysis when considering cases under the California Constitution's similar provision. See Paulson v. Abdelnour, 145 Cal.App.4th 400, 420 (2006) ("The construction given by California courts to the establishment clause of article I, section 4, is guided by decisions of the United States Supreme Court."). Accordingly, the previous analysis under the federal Establishment Clause demonstrates why the challenged action at issue also violates the California Constitution.
2. California No Preference Clause.
The Ninth Circuit has interpreted the California No Preference Clause "to stand for the proposition that not only may a government body not prefer one religion over another, it may not appear to be acting preferentially." Ellis v. City of La Mesa, 990 F.2d 1518, 1524 (9th Cir. 1993) (citation and quotations omitted).
In this [*42] case, it is evident that Defendants' restriction, which singled out "Christian" or "Judeo/Christian" speech for disfavored treatment while permitting speech conveying other religious views, violates California's No Preference Clause.
V. Plaintiff Is Entitled to Nominal Damages and Attorney Fees and Costs.
In addition to declaratory and injunctive relief, Plaintiff is entitled to nominal damages for the past loss of his constitutional rights as a matter of law. See Carey v. Piphus, 435 U.S. 247, 266-67 (1978); Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991) (holding that nominal damages must be awarded as a matter of law upon finding a constitutional violation).
As the prevailing party, Plaintiff is also entitled to an award of his attorney fees and costs pursuant to 42 U.S.C. § 1988, California Code of Civil Procedure § 1021.5, and other applicable law. See Hensley v. Eckerhart, 461 U.S. 424, 433, 435 (1983) ("Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.").
CONCLUSION
Schools are places of learning, and this case presents a great opportunity [*43] for the students, faculty, and administrators of the School District to learn that when government officials violate a person's constitutional rights, they will be held accountable. See Hills, 329 F.3d at 1055 ("We agree with the Seventh Circuit that the desirable approach is not for schools to throw up their hands because of the possible misconception about endorsement of religion, but that instead it is 'far better to teach students about the first amendment, about the difference between private and public action, about why we tolerate divergent views. The school's proper response is to educate the audience rather than squelch the speaker.'") (quoting Hedges v. Wauconda Cmty. United Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993) (internal punctuation omitted)).
As this court stated in its prior decision, Public schools play an important role educating and guiding our

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youth through the marketplace of ideas and instilling national values. One method used by the Poway Unified School District to accomplish this task is to permit students to be exposed to a rich diversity of backgrounds and opinions held by high school faculty. In this [*44] way, the school district goes beyond the cramped view of selecting curriculum and hiring teacher speech to simply deliver the approved content of scholastic orthodoxy. By opening classroom walls to the non-disruptive expression of all its teachers, the district provides students with a healthy exposure to the diverse ideas and opinions of its individual teachers, without necessarily endorsing or dictating adherence to the ideas expressed. By squelching only Johnson's patriotic expression, the school district does a disservice to the students of Westview High School and the federal and state constitutions do not permit such one-sided censorship. (Doc. No. 25 at 22-23).
For the foregoing reasons, Plaintiff respectfully requests that this court grant his motion for summary judgment as to all claims.
Respectfully submitted,
THOMAS MORE LAW CENTER
By: /s/ Robert J. Muise Robert J. Muise, Esq.* Admitted pro hac vice Charles S. LiMandri, Esq.
Counsel for Plaintiff Bradley Johnson
PLAINTIFF'S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 7.1(f)(1), the following statement of undisputed [*45] material facts ("SOMF") is submitted on behalf of Plaintiff Bradley Johnson in support of his motion for summary judgment.
1. Plaintiff Bradley Johnson (hereinafter "Plaintiff") is a public school teacher who has been teaching in Defendant Poway Unified School District (hereinafter "School District") for more than 30 years. (Johnson Decl. at P 3 at Ex. 1).
2. Plaintiff is a high school math teacher in the School District. (Johnson Decl. at P 3 at Ex. 1).
3. Plaintiff has taught math at Mt. Carmel High School, Rancho Bernardo High School, and Westview High School, which are all high schools within the School District. (Johnson Decl. at P 3 at Ex. 1).
4. Plaintiff presently teaches math at Westview High School and has been doing so since 2003. (Johnson Decl. at P 3 at Ex. 1).
5. Mr. John Collins, Deputy Superintendent for the School District, testified on behalf of the School District pursuant to Fed. R. Civ. P. 30(b)(6) as to certain matters set forth in the deposition notice. (Collins Dep. at 12, Dep. Exs. 1, 2 at Ex. 2).
6. Defendant William R. Chiment, Associate Superintendent for the School District, testified on behalf of the School District pursuant to Fed. R. Civ. P. 30(b)(6) [*46] as to certain matters set forth in the deposition notice. (Chiment Dep. at 16-17, Dep. Ex. 31 at Ex. 3).
7. Defendants Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, and Penny Ranftle were at all relevant times members of the Board of Education for the School District. (Compl. at PP 8-12 (Doc. No. 17); Answer at

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2 (Doc. No. 26); Collins Dep. at 16 at Ex. 2).
8. The Board of Education for the School District is responsible for adopting the policies of the School District. (Compl. at P 8 (Doc. No. 17); Answer at 2 (Doc. No. 26)).
9. The Board of Education for the School District approved of the School District's decision to order Plaintiff to remove his banners. (Chiment Dep. at 138 at Ex. 3).
10. Defendant Dr. Donald A. Phillips was at all relevant times the Superintendent of the School District. (Compl. at P 13 (Doc. No. 17); Answer at 2 (Doc. No. 26); Collins Dep. at 17 at Ex. 2).
11. As the Superintendent of the School District, Defendant Phillips is partially responsible for creating and implementing the policies of the School District. (Compl. at P 13 (Doc. No. 17); Answer at 2 (Doc. No. 26)).
12. Defendant Phillips approved of the School District's decision [*47] to order Plaintiff to remove his banners. (Chiment Dep. at 137 at Ex. 3).
13. Defendant Chiment was at all relevant times Assistant/Associate Superintendent of the School District. (Compl. at P 14 (Doc. No. 17); Answer at 2 (Doc. No. 26); Chiment Dep. at 20 at Ex. 3).
14. As Assistant/Associate Superintendent, Defendant Chiment is partially responsible for creating and implementing the policies of the School District. (Compl. at P 14 (Doc. No. 17); Answer at 2 (Doc. No. 26)).
15. Defendant Chiment approved of the School District's decision to order Plaintiff to remove his banners. (Chiment Dep. at 30-31, 130, 132, 137, Dep. Ex. 6 at Ex. 3).
16. Defendant Dawn Kastner was at all relevant times the Principal of Westview High School, which is one of the high schools in the School District. (Compl. at P 15 (Doc. No. 17); Answer at 2 (Doc. No. 26); Kastner Dep. at 10-12 at Ex. 4).
17. As the Principal of Westview High School, Defendant Kastner is partially responsible for implementing the policies of the School District. (Compl. at P 15 (Doc. No. 17); Answer at 2 (Doc. No. 26)).
18. Defendant Kastner approved of the School District's decision to order Plaintiff to remove his banners. [*48] (Kastner Dep. at 101-02, 172 at Ex. 4).
19. Plaintiff has a strong reputation as a math teacher in the School District; he continues to be one of the highest rated math teachers at Westview High School. (Johnson Decl. at PP 4, 36; Chiment Dep. at 24-25 at Ex. 3; Kastner Dep. at 33 at Ex. 4).
20. For approximately 25 years, Plaintiff had continuously displayed on his classroom walls various banners that contained historical and patriotic phrases. (Johnson Decl. at PP 5, 17-21, Ex. B at Ex. 1).
21. During these 25 years, Plaintiff displayed his banners during the relevant time periods at Mt. Carmel High School, Rancho Bernardo High School, and Westview High School. (Johnson Decl. at PP 3, 5 at Ex. 1).
22. Plaintiff had the banners made to order by a private company and purchased them with his personal funds. (Johnson Decl. at P 5 at Ex. 1).
23. Plaintiff's banners do not belong to the School District; they are his personal items. (Johnson Decl. at PP 5, 33, 34, 37 at Ex. 1; Chiment Dep. at 34-36 at Ex. 3).
24. Teachers in the School District are permitted to display in their classrooms personal items that are not related to

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the curriculum. (Johnson Decl. at PP 9-16, Exs. A, C at [*49] Ex. 1; Collins Dep. at 94 at Ex. 2).
25. The classrooms in which Plaintiff's banners were displayed over the years were assigned to Plaintiff; they were his classrooms for "homeroom" and academic classes. They were also the classrooms he used for non-curricular and extra-curricular activities. (Johnson Decl. at P 7 at Ex. 1).
26. Plaintiff's banners were not used as part of his math curriculum, they were not part of any aspect of his math curriculum, they were not used as part of any of his extracurricular activities, students were not studying Plaintiff's banners in his classes, and students were not discussing Plaintiff's banners in his classes. (Johnson Decl. at PP 16, 36 at Ex. 1; Chiment Dep. at 93-95 at Ex. 3).
27. Plaintiff's banners were not part of the curriculum. (Johnson Decl. at PP 16, 36 at Ex. 1; Collins Dep. at 94 at Ex. 2; Chiment Dep. at 93-95 at Ex. 3).
28. Prior to the School District's decision to order Plaintiff to remove his banners in 2007, neither the School District nor its administrators made any complaints to Plaintiff regarding his banners until Defendant Kastner complained in the Fall of 2006. (Johnson Decl. at PP 5, 33, 34, 37 at Ex. 1; Chiment Dep. [*50] at 34-36 at Ex. 3).
29. Prior to the School District's decision to order Plaintiff to remove his banners in 2007, the School District did not receive any complaints about Plaintiff's banners from students, faculty, teachers, parents, or School Board members until Defendant Kastner complained in the Fall of 2006. (Johnson Decl. at PP 5, 33, 34, 37 at Ex. 1; Chiment Dep. at 34-36 at Ex. 3).
30. During his first two years as a probationary teacher, Plaintiff was evaluated 3 times each year. As a tenured teacher, Plaintiff is evaluated twice a year, every other year by the School District. Typically, the evaluation is performed by an assistant principal. As part of the evaluation, the administrator observes Plaintiff teaching in his classroom and evaluates whether or not his teaching and his classroom comport with School District standards and policies. (Johnson Decl. at P 34 at Ex. 1).
31. None of Plaintiff's official evaluations over a 30 plus year period ever indicated that his banners were impermissible, nor did any of Plaintiff's evaluators ever inform him that his banners were impermissible or that they disrupted or detracted from Plaintiff's teaching or the students' learning [*51] in any way. (Johnson Decl. at P 34 at Ex. 1).
32. Plaintiff has discretion and control over the non-curricular messages he displays on his classroom walls. (Johnson Decl. at P 8 at Ex. 1; Collins Dep. at 42-43, 57 at Ex. 2; Chiment Dep. at 64-65, 91, 134, Dep. Ex. 6 at Ex. 3).
33. No other School District teacher is permitted to display materials on Plaintiff's classroom walls without Plaintiff's permission. (Johnson Decl. at P 8 at Ex. 1; Collins Dep. at 42-43, 57 at Ex. 2; Chiment Dep. at 64-65, 91, 134 at Ex. 3).
34. The School District does not direct the teachers' non-curricular displays; it is up to the individual teacher. (Johnson Decl. at P 8 at Ex. 1; Chiment Dep. at 134, Dep. Ex. 6 at Ex. 3).
35. Pursuant to School District policy, practice, and/or custom, teachers are permitted to display in their classrooms and on their classroom walls various non-curricular messages and other items that reflect the individual teacher's personality, opinions, and values regarding a wide range of interests and subject matter. (Johnson Decl. at PP 9, 11-15, Ex. A at Ex. 1; Collins Dep. at 38, 39, 41-42 at Ex. 2; Chiment Dep. at 57-58, 61-62, 82, 128-29, 273-74 (admitting, "In a limited [*52] way we open the walls [to expression by teachers]"); Kastner Dep. at 23-24, 67 at Ex. 4).
36. School District teachers are permitted to display non-curricular items in their classrooms that contain messages that express the personal views, interests, or opinions of the individual teacher regarding various patriotic, political,

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social, historical, or other similar concerns. (Johnson Decl. at PP 9, 11-15, Ex. A at Ex. 1; Collins Dep. at 38, 39, 41-42 at Ex. 2; Chiment Dep. at 57-58, 61-62, 82, 128-29, 273-74 (admitting, "In a limited way we open the walls [to expression by teachers]"); Kastner Dep. at 23-24, 67 at Ex. 4).
37. Permissible subject matter for non-curricular teacher displays in the classrooms includes, among others, the following:
a. Foundations of our Nation;
b. Patriotic messages;
c. Inspirational messages;
d. Historical messages; and
e. Slogans that are praiseworthy of our Nation.
(Johnson Decl. at PP 11-15, 38 at Ex. 1; Collins Dep. at 38-40, 56, 155-56 at Ex. 2; Chiment Dep. at 45, 84-85, 135-36, 141, 215-17, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 45 at Ex. 4).
38. The School District permits teachers to display non-curricular [*53] items that contain partial quotes from the Declaration of Independence. (Collins Dep. at 148-50 at Ex. 2; Chiment Dep. at 216-17 at Ex. 3; Kastner Dep. at 45 at Ex. 4).
39. The School District does not object to posters, banners, or other such displays by teachers that express certain non-curricular messages regarding the following subject matter:
a. Global warming (Chiment Dep. at 84, 223-24 at Ex. 3);
b. Gay rights (Collins Dep. at 79-82, 85-86, 88-89 at Ex. 2; Brickley Dep. at 58-64, 72-73, 112-19 at Ex. 5);
c. Environmental issues (Collins Dep. at 161-62 at Ex. 2; Chiment Dep. at 84, 224-27 at Ex. 3; Brickley Dep. at 109-10 at Ex. 5);
d. Historic religious leaders such as Gandhi, the Dali Lama, Martin Luther King, and Malcolm X (Collins Dep. at 150-51 at Ex. 2; Chiment Dep. at 85, 209 at Ex. 3);
e. Rock bands or musicians (Collins Dep. at 152-54 at Ex. 2; Chiment Dep. at 211-15 at Ex. 3);
f. Movies (Collins Dep. at 166-68 at Ex. 2; Chiment Dep. at 234-35 at Ex. 3);
g. Anti-war/anti-military/peace issues (Chiment Dep. at 195-96, 199, 201-02 at Ex. 3; Brickley Dep. at 84-86 at Ex. 5);
h. Pro-military issues (Chiment Dep. at 201 at Ex. 3); [*54] and
i. Sports (Collins Dep. at 162-63 at Ex. 2; Chiment Dep. at 230-31 at Ex. 3).
40. As a direct result of this School District policy, practice, and/or custom, the classroom walls serve as an expressive vehicle for teachers to convey non-curricular messages. (Johnson Decl. at P 9 at Ex. 1; Chiment Dep. at

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273-74 at Ex. 3).
41. As a direct result of this School District policy, practice, and/or custom, the School District created a forum for non-curricular teacher speech. (Johnson Decl. at PP 9, 11-15 at Ex. 1; Collins Dep. at 38, 39, 41-42 at Ex. 2; Chiment Dep. at 57-58, 61-62, 82, 128-29, 273-74 (admitting, "In a limited way we open the walls [to expression by teachers]").
42. As a result of the School District's policy, practice, and/or custom of permitting teachers to display items, including personal, non-curricular items, in their classrooms, School District teachers have displayed and continue to display in their classrooms and on their classroom walls the following: n1
a. Posters promoting various rock bands and musicians, including Nirvana, Bruce Springsteen and the E Street Band, Bob Dylan, and The Beatles (Dep. Exs. 52, 53, 54, 55, 56); [*55]
b. A poster with the lyrics to the song Imagine by John Lennon (Dep. Ex. 20);
c. Posters promoting various professional athletes (Dep. Exs. 76, 80, 149);
d. Posters, flags, and banners promoting various professional sports teams (Dep. Exs. 74, 75, 77, 78, 79);
e. Tibetan (Buddhist) prayer flags, including a flag with the image of Buddha (Dep. Exs. 24, 25, 26, 148, 155);
f. Posters promoting movies, including a poster of Monty Python's Quest for the Holy Grail, and movie stars (Dep. Exs. 82, 83, 84, 85, 86, 94);
g. Posters advocating a position and viewpoint on environmental issues (Dep. Exs. 66, 67, 68, 159);
h. Posters advocating a position and viewpoint with regard to global warming ("Stop Global Warming") ("How Do You Like Your Environment? Regular or Extra Crispy") (Dep. Exs. 64, 158);
i. Poster advocating a position and viewpoint with regard to the issue of zero population growth (Dep. Ex. 152);
j. Displays advocating a position and viewpoint on gay rights issues, including the following:
i. "Stop Hate Crimes" poster created by the Human Rights Campaign (hereinafter "HRC" found at www.hrc.org), "the largest national [*56] lesbian, gay, bisexual and transgender civil rights organization" (Dep. Exs. 13, 14);
ii. Poster with the pro-gay HRC equal ("=") symbol (Dep. Ex. 14);
iii. Gay, Lesbian and Straight Education Network, (hereinafter "GLSEN" found at www.glsen.org) "Day of Silence" poster, which promotes the pro-gay day of silence that some students and teachers in the School District engage in (Dep. Ex. 15);
iv. Gay, lesbian, bi-sexual, transgendered ("LGBT") rainbow flag (Dep. Ex. 15);
v. Decals of the HRC "equal" symbol (Dep. Ex. 16);
vi. Bumper stickers with the pro-gay political slogan, "Equal Rights Are Not Special

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Rights" (Dep. Ex. 16);
vii. Pro-gay "I am an ally" decals created by GLSEN (Dep. Ex. 16);
viii. Bumper stickers with the pro-gay slogan, "Celebrate Diversity," in rainbow colors (Dep. Ex. 16);
ix. Postings about pro-gay support groups and issues (Dep. Exs. 17, 18);
x. Pro-gay poster with the large caption, "Unfortunately, History Has Set the Record A Little Too Straight," which highlights the "National Coming Out Day, October 11th" (Dep. Exs. 19, 142);
xi. Bumper sticker for EQCA (Equality California), a gay rights organization that [*57] opposed Proposition 8 in California (Dep. Ex. 161; Brickley Dep. at 112-13 at Ex. 5);
xii. Bumper sticker that says, "Hate is not a family value," which the teacher posting it uses to convey "the fact that 'family values' is a term that the conservative right[, which includes Fundamentalist Christians and Catholics,] has used to make people who have different sorts of families wrong" (Dep. Ex. 161; Brickley Dep. at 114 at Ex. 5);
xiii. HRC poster (Dep. Ex. 161);
xiv. AIDS poster (Dep. Ex. 161); and
xv. Buttons expressing pro-gay slogans such as "Hate Free Zone," "Celebrate Diversity" (Dep. Ex. 137), "Ask Me Why I'm Silent," and a pink triangle with "Never Again" (Dep. Ex. 138; Brickley Dep. at 58-64 at Ex. 5).
k. Posters expressing patriotic messages, including a poster with an excerpt from the Declaration of Independence (. . . life, liberty and the pursuit of happiness") (Dep. Exs. 57, 58, 60; Johnson Decl. at P 15, Ex. C at Ex. 1);
l. Posters with inspirational messages (Dep. Exs. 69, 71, 72, 73; Johnson Decl. at P 15, Ex. C at Ex. 1);
m. Various flags, including the Gadsden flag with the political slogan, "Don't Tread on Me" (Dep. Exs. 59, [*58] 61, 62, 63);
n. Family photographs (Dep. Ex. 87);
o. Non-student artwork (Dep. Ex. 81);
p. Nature posters, pictures, and banners (Dep. Exs. 88, 95, 96);
q. Cartoon characters (Dep. Ex. 89);
r. Surfing poster (Dep. Ex. 90);
s. Photographs of male models (Dep. Ex. 91);

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t. Homer Simpson model/statue (Dep. Ex. 93);
u. Poster advocating a position and viewpoint on the issue of animal research (Dep. Ex. 65);
v. Posters advocating a pro-military position and viewpoint (Dep. Exs. 42, 60), including one that consists of a large banner (approximately 5 feet high and 10 feet in length) with a photograph of an aircraft carrier and the following caption, which is an excerpt from the Declaration of Independence: "Life, Liberty and the Pursuit of All Who Threaten It" (Dep. Ex. 42);
w. Displays advocating an anti-military/anti-war position and viewpoint (Dep. Exs. 36, 38, 39, 40, 41, 43, 141), including the following:
i. Poster with a large peace symbol (Dep. Ex. 36);
ii. Display of a Lincoln penny with the inscription, "The War Is Coming. Are You Ready?" (Dep. Ex. 38);
iii. Mock flag of the United States with the peace symbol located [*59] in the field of blue (Dep. Ex. 39);
iv. Poster stating, "war is not healthy for children and other things" (Dep. Ex. 40);
v. Bumper sticker stating, "How many Iraqi children did we kill today?" (Dep. Ex. 41); and
vi. Poster stating, "Every Minute the World Spends $ 700,000 on War While 30 Children Die of Hunger & Inadequate Health Care" (Dep. Ex. 43);
x. Displays of particular political parties and/or candidates, including the following:
i. Campaign poster of candidate Obama (Dep. Ex. 40);
ii. Newsweek magazine cover of the candidates Obama and Biden (Dep. Ex. 33); and
iii. Poster of the "Libertarian Party" (Dep. Ex. 35);
y. Posters of religious leaders, including Gandhi (Hindu) and the Dali Lama (Buddhist) (Dep. Exs. 47, 49), and a posting of Gandhi's "7 Deadly Social Sins" (Dep. Ex. 48);
z. Posters of Malcolm X, the controversial Muslim leader of the Nation of Islam (Dep. Exs. 50, 51, 135);
aa. Posters of Martin Luther King, including a poster in which he quotes an excerpt from the Declaration of Independence ("I have a dream that one day this Nation will rise up and live out the true meaning of its creed, 'We hold these [*60] truths to be self-evident, that all men are created equal.'") (Dep. Exs. 44, 45); and
bb. Poster with various religious and political symbols and the saying, "The hottest places in hell are reserved for those who in times of great moral crisis maintain their neutrality." (Dep. Ex. 151).

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n1 The photographs of the displayed items are marked as deposition exhibits, and they are attached to the Declaration of Bradley Johnson (Exhibit 1) as Exhibit A.
43. The lyrics to John Lennon's Imagine, which were posted on a classroom wall by a School District teacher, are as follows:
Imagine there's no Heaven, It's easy if you try, No hell below us, Above us only sky, Imagine all the people, Living for today; Imagine there's no countries, It isn't hard to do, Nothing to kill or die for, And no religion too, Imagine all the people, Living life in peace; You may say that I'm a dreamer, But I'm not the only one, I hope someday you'll join us, And the world will be as one; Imagine no possessions, I wonder [*61] if you can, No need for greed or hunger, A brotherhood of man, Imagine all the people, Sharing all the world; You may say that I'm a dreamer, But I'm not the only one, I hope someday you'll join us, And the world will live as one. (Johnson Decl. at P 15, n.2, Ex. A, Dep. Ex. 20 at Ex. 1).
44. The School District does not object to the posting of the lyrics to John Lennon's Imagine by teachers in their classrooms. (Collins Dep. at 89-90 at Ex. 2; Chiment Dep. at 177-78 at Ex. 3).
45. The "National Coming Out Day, October 11th," which is depicted in a science teacher's poster (Dep. Ex. 142), is "a day when all gay people are supposed to come out of the closet and let people know they exist so that they will have a real live person to know who they are hating or not." (Brickley Dep. at 73 at Ex. 5).
46. The School District does not object to a poster promoting the "National Coming Out Day." (Collins Dep. at 188-89 at Ex. 2).
47. GLSEN is an activist group that promotes gay rights issues in education. (Brickley Dep. at 123 at Ex. 5).
48. HRC is a national organization that advocates and lobbies for gay rights. (Brickley Dep. at 114 at Ex. 5; see also Johnson Decl. at P [*62] 15, Ex. A, Dep. Ex. 13 at Ex. 1).
49. A symbol of HRC is a yellow equal sign on a dark blue background. (Brickley Dep. at 116 at Ex. 5; see also Johnson Decl. at P 15, Ex. A, Dep. Ex. 13 at Ex. 1).
50. Each of the items identified in paragraph 42 above was displayed as of April 2009, which is more than two years after Plaintiff was directed to remove his banners in January 2007. (Johnson Decl. at PP 12-15, Ex. A at Ex. 1).
51. The School District expects its administrators to walk through the classrooms and observe what is taking place in order to ensure that teachers are abiding by School District policy. (Collins Dep. at 146 at Ex. 2; Chiment Dep. at 66-67 at Ex. 3; Kastner Dep. at 15-17, 25 at Ex. 4).
52. It is the duty of School District administrators to observe what is taking place in their schools and to enforce School District policies. (Kastner Dep. at 28-29, 174; see also Chiment Dep. at 199 at Ex. 3).
53. The School District does not object to the display of Tibetan prayer flags-which Buddhists believe are sacred items that impart spiritual blessings-by teachers in their classrooms. (Collins Dep. at 94-95 at Ex. 2; Chiment Dep. at 180-81 at Ex. 3; Johnson Decl. [*63] at PP 11, 15, Ex. A, Dep. Exs. 24-26, 148, 155 at Ex. 1; see also Brickley Dep. at 90 at Ex. 5).
54. One display of Tibetan prayer flags by a School District science teacher stretches approximately 35 to 40 feet across the teacher's classroom. (Johnson Decl. at P 15, n.3 at Ex. 1; Brickley Dep. at 87 at Ex. 5).

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55. The School District does not endorse or promote the non-curricular messages displayed by the teachers. (Johnson Decl. at PP 5, 16 at Ex. 1; Collins Dep. at 40-41 at Ex. 2; Chiment Dep. at 274, 279 at Ex. 3).
56. The teachers' displays do not constitute government speech. (Johnson Decl. at PP 5, 16 at Ex. 1; Collins Dep. at 40-41 at Ex. 2; Chiment Dep. at 274, 279 at Ex. 3).
57. There are no express size limitations for the teachers' non-curricular displays. (Collins Dep. at 42 at Ex. 2; Kastner Dep. at 71 at Ex. 4).
58. There are no express limits on the number of non-curricular items the teachers can display. (Collins Dep. at 42 at Ex. 2; Chiment Dep. at 76 at Ex. 3; Kastner Dep. at 70 at Ex. 4).
59. Plaintiff's banners were displayed pursuant to the longstanding School District policy, practice, and/or custom that created a forum for teacher speech. (Johnson [*64] Decl. at PP 9, 10, 16, Ex. B at Ex. 1).
60. Plaintiff's banners were not displayed pursuant to any of his official duties as a teacher. (Johnson Decl. at PP 16, 36 at Ex. 1).
61. Plaintiff did not use his banners during any classroom session or period of instruction. (Johnson Decl. at PP 16, 36 at Ex. 1; Collins Dep. at 94 at Ex. 2; Chiment Dep. at 93-95 at Ex. 3).
62. Plaintiff's banners were not expressing a message on behalf of the School District. (Johnson Decl. at PP 5, 16 at Ex. 1; see also Collins Dep. at 40-41 at Ex. 2; Chiment Dep. at 274, 279 at Ex. 3).
63. The School District believes that public schools play an important role educating and guiding our youth through the marketplace of ideas and instilling national values. (Chiment Dep. at 271-72 at Ex. 3).
64. One method used by the School District to accomplish the task identified in paragraph 63 above is to permit students to be exposed to the rich diversity of backgrounds and opinions held by high school faculty. (Chiment Dep. at 272 at Ex. 3).
65. The School District permits its teachers, including Ms. Lori Brickley, a science teacher who is a proponent of gay rights (Brickley Dep. at 43 at Ex. 5), to participate [*65] in the "day of silence"-a pro-gay rights activity-on School District property with the students so long as the teacher's participation does not interfere with or disrupt the teaching of his or her classes. (Collins Dep. at 124-26, 140 at Ex. 2).
66. Plaintiff's banners caused no material disruption or disorder in his classroom or anywhere else in the school. (Johnson Decl. at P 35 at Ex. 1; Collins Dep. at 36-37 at Ex. 2; Chiment Dep. at 49-51, 276 at Ex. 3; Kastner Dep. at 85-86 at Ex. 4).
67. Plaintiff's banners did not interfere with the teaching of his classes. (Johnson Decl. at P 35 at Ex. 1; Collins Dep. at 36, 125 at Ex. 2; Chiment Dep. at 276 at Ex. 3; Kastner Dep. at 85-86 at Ex. 4).
68. Plaintiff's banners contain the following historical phrases: "In God We Trust," the official motto of the United States; "One Nation Under God," the 1954 amendment to the Pledge of Allegiance; "God Bless America," a patriotic song; "God Shed His Grace On Thee," a line from "America the Beautiful," a patriotic song; and "All Men Are Created Equal, They Are Endowed By Their Creator," an excerpt from the preamble to the Declaration of Independence. (Johnson Decl. at PP 17-32, Ex. B at Ex. [*66] 1).
69. Plaintiff displayed two such banners in his classrooms over the years, along with other items, including numerous photographs of nature scenes and national parks and several pictures of his family. (Johnson Decl. at P 18, Ex. B at Ex. 1).

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70. Plaintiff's first banner, which is red, white, and blue, depicting the colors of our national flag, includes the phrases "In God We Trust," "One Nation Under God," "God Bless America," and "God Shed His Grace On Thee." (Johnson Decl. at P 19, Ex. B at Ex. 1).
71. Plaintiff continuously displayed a paper version of this first banner for approximately 8 years, and he continuously displayed the present version, which is made of more durable material, for approximately 17 years. The present version is an exact replica of the paper version. Consequently, the message of this banner was displayed continuously for approximately 25 years. (Johnson Decl. at P 19 at Ex. 1).
72. Plaintiff's second banner includes the phrase "All Men Are Created Equal, They Are Endowed By Their Creator." This banner was continuously displayed for approximately 17 years. (Johnson Decl. at P 20, Ex. B at Ex. 1).
73. Each banner measures approximately 7 feet long [*67] by 2 feet wide and was continuously displayed in a non-obstructive manner. Plaintiff's banners do not contain any pictures or symbols. (Johnson Decl. at P 21, Ex. B at Ex. 1).
74. The phrases included in Plaintiff's banners are well-know patriotic phrases taken from secular historical sources, documents, or patriotic songs. (Johnson Decl. at PP 17, 22-32 at Ex. 1; Collins Dep. at 27-32 at Ex. 2; Chiment Dep. at 36-37, 40-43, 46 at Ex. 3).
75. Religious people founded this Nation; as a result, references to God are common in our songs, mottoes, and slogans. (Collins Dep. at 33-34 at Ex. 2; Chiment Dep. at 118-21 at Ex. 3; Kastner Dep. at 158-59 at Ex. 4).
76. The phrases included in Plaintiff's banners were not taken from any religious documents or religious texts. (Johnson Decl. at P 6, Ex. B at Ex. 1; Collins Dep. at 27-33 at Ex. 2).
77. Plaintiff's banners do not contain quotes or passages from Sacred Scripture or any other religious text. (Johnson Decl. at P 6, Ex. B at Ex. 1; see also Collins Dep. at 27-33 at Ex. 2).
78. The students in the School District would be familiar with the patriotic and historical phrases included in Plaintiff's banners. (Collins Dep. at 27-33 at [*68] Ex. 2).
79. "In God We Trust" is the official motto of the United States. (Johnson Decl. at P 22 at Ex. 1).
80. A law passed by Congress and signed by the President on July 30, 1956, approved a joint resolution of Congress that declared "In God we trust" the national motto of the United States. (Johnson Decl. at P 22 at Ex. 1).
81. "In God We Trust" appears above the Speaker's Chair in the United States House of Representatives and above the main door of the United States Senate chamber. (Johnson Decl. at P 24 at Ex. 1).
82. In 1942, Congress enacted the Pledge of Allegiance, which was amended in 1954 to officially include the phrase "under God." (Johnson Decl. at P 27 at Ex. 1).
83. Students in the School District recite the Pledge of Allegiance on a daily basis. (Johnson Decl. at P 27 at Ex. 1; Collins Dep. at 28 at Ex. 2).
84. The preamble to the Declaration of Independence states as follows: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The Declaration of Independence is our Nation's founding document. (Johnson [*69] Decl. at P 29 at Ex. 1).
85. "God Bless America" is an American patriotic song written by Irving Berlin in 1918 and later revised by him in 1938. (Johnson Decl. at P 30 at Ex. 1; Collins Dep. at 29-30 at Ex. 2; Chiment Dep. at 40 at Ex. 3).

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86. "God Bless America" is a phrase that is also commonly used in speeches by the President of the United States. (Johnson Decl. at P 31 at Ex. 1; Collins Dep. at 30 at Ex. 2; Chiment Dep. at 40-41 at Ex. 3).
87. The song "God Bless America" is often played at public events, including at sporting events, such as the seventh inning stretch at Yankee Stadium, since the terrorist attacks of September 11, 2001. (Johnson Decl. at P 30 at Ex. 1).
88. "God Shed His Grace on Thee" is a verse from "America the Beautiful," an American patriotic song that is often played at public events. (Johnson Decl. at P 32 at Ex. 1; Collins Dep. at 30 at Ex. 2).
89. During his 30 plus years of teaching in the School District, Plaintiff has had 7 different school principals, numerous school board members, superintendents, assistant superintendents, over 4,000 students and several thousand parents in his classrooms where the banners were displayed. Prior to January [*70] 2007, Plaintiff had not received one complaint from any School District administrator, parent, or student about the banners. (Johnson Decl. at P 33 at Ex. 1).
90. Plaintiff's banners never prohibited or interfered with his ability to educate the students in his math class. (Johnson Decl. at P 36 at Ex. 1; Collins Dep. at 125 at Ex. 2).
91. Plaintiff's long-standing practice of displaying his banners came to an abrupt end when on or about January 23, 2007, Defendants ordered him to remove the banners. (Johnson Decl. at PP 37, 38 at Ex. 1; Chiment Dep. at 30, 130, Dep. Ex. 6, at Ex. 3; Kastner Dep. at 101-02, 172 at Ex. 4).
92. Defendants directed Plaintiff to remove his banners because the School District believed that the banners were promoting a "Christian" or "Judeo/Christian" viewpoint. (Johnson Decl. at P 37 at Ex. 1; Collins Dep. at 43-44 at Ex. 2; Chiment Dep. at 133 at Ex. 3; Kastner Dep. at 44-45, 101-02, 137 at Ex. 4).
93. Defendant Chiment, on behalf of the School District, sent a letter to Plaintiff regarding the School District's order directing Plaintiff to remove his banners. (Johnson Decl. at P 37 at Ex. 1; Chiment Dep. at 29, 30-31, 130, Dep. Ex. 6 at Ex. 3). [*71]
94. In the letter, which was dated January 23, 2007, Defendant Chiment claimed that Plaintiff's banners conveyed an impermissible "sectarian viewpoint" and, more specifically, "a particular sectarian viewpoint." (Johnson Decl. at P 37 at Ex. 1; Chiment Dep. at 133, Dep. Ex. 6 at Ex. 3).
95. The "sectarian viewpoint" noted in the letter was referring to "a particular religious viewpoint," which is the viewpoint of "those religious groups who refer to a supreme being as God," such as Christians. (Chiment Dep. at 133 at Ex. 3).
96. Defendant Kastner believed that Plaintiff's banners were impermissible because they expressed a "Christian" viewpoint. (Kastner Dep. at 101-02 at Ex. 4).
97. The decision to order Plaintiff to remove his banners was discussed and approved during one or more Superintendent Cabinet meetings in which the members of the cabinet were present and all approved of the decision. (Collins Dep. at 58-59 at Ex. 2)
98. Defendants did not inform Plaintiff that his banners caused a material disruption or substantial disorder in the school or that the banners interfered with the curriculum. (Johnson Decl. at P 39 at Ex. 1; Chiment Dep. at 130, 276, Dep. Ex. 6 at Ex. 3). [*72]
99. At the time they directed Plaintiff to remove his banners, Defendants had no evidence that Plaintiff's banners caused any material disruption or disorder in the School District. (Johnson Decl. at P 35 at Ex. 1; Collins Dep. at 36-37, 125 at Ex. 2; Chiment Dep. at 49-51, 276 at Ex. 3; Kastner Dep. at 85-86 at Ex. 4).

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100. Defendants singled out Plaintiff for disfavored treatment because of the viewpoint expressed by his banners. (Johnson Decl. at PP 37-39 at Ex. 1; Collins Dep. at 43-44 at Ex. 2; Chiment Dep. at 133, 278, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 44-45, 101-02, 137 at Ex. 4).
101. Plaintiff wants to display his banners in his classroom; however, Defendants have prohibited him from doing so. (Johnson Decl. at P 40 at Ex. 1; see also Chiment Dep. at 30, 130, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 76 at Ex. 4).
102. Defendants have prohibited Plaintiff from displaying his banners in his classroom based on the viewpoint of Plaintiff's speech. (Johnson Decl. at PP 37-39 at Ex. 1; Collins Dep. at 43-44 at Ex. 2; Chiment Dep. at 133, 278, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 44-45, 101-02, 137 at Ex. 4).
103. Pursuant to School District policy, practice, and/or custom, [*73] it is entirely proper for Plaintiff to display on his classroom walls non-curricular materials, including posters and banners, "about the foundation of our nation," that express patriotic or historical messages, or that express inspirational messages. (Johnson Decl. at PP 11-15, 38, Ex. C at Ex. 1; Collins Dep. at 38-40, 56, 155-56 at Ex. 2; Chiment Dep. at 45, 84-85, 135-36, 141, 215-17, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 45 at Ex. 4).
104. The subject matter of Plaintiff's banners was permitted. (Johnson Decl. at PP 11-15, 38 at Ex. 1; Collins Dep. at 38-40, 56, 155-56 at Ex. 2; Chiment Dep. at 45, 84-85, 135-36, 141, 215-17, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 45 at Ex. 4).
105. Defendants' removal of Plaintiff's banners was not curriculum related; Plaintiff was teaching and continues to teach his assigned mathematics curriculum. (Johnson Decl. at PP 16, 36 at Ex. 1; Collins Dep. at 94 at Ex. 2; Chiment Dep. at 93-95 at Ex. 3).
106. Had Plaintiff not complied with Defendants' order to remove his banners, Plaintiff would have been subject to some form of disciplinary action for insubordination. (Johnson Decl. at P 41 at Ex. 1; Collins Dep. at 59 at Ex. 2).
Respectfully [*74] submitted,
THOMAS MORE LAW CENTER
By: /s/ Robert J. Muise Robert J. Muise, Esq.* Admitted pro hac vice Charles S. LiMandri, Esq.
Counsel for Plaintiff Bradley Johnson
CERTIFICATE OF SERVICE
STATE OF MICHIGAN, COUNTY OF WASHTENAW
I am employed in the County of Washtenaw, State of Michigan. I am over the age of eighteen and not a party to the within action. My business address is Thomas More Law Center, 24 Frank Lloyd Wright Drive, P.O. Box 393, Ann Arbor, Michigan 48106.
On August 14, 2009, I served the following documents entitled: Plaintiff's Notice of Motion and Motion for Summary Judgment, Plaintiff's Memorandum of Points and Authorities in support of Motion for Summary Judgment, Plaintiff's Statement of Undisputed Material Facts in support of Motion for Summary Judgment with attached exhibits and this certificate of service on the parties in this action as follows: [see service list]

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[X] (BY ELECTRONIC SERVICE) On the date executed below, I served the document(s) via CM/ECF described above on the designated recipients appearing on the service list through electronic transmission of said document(s). A certified receipt [*75] is issued to the filing party acknowledging receipt by CM/ECF's system. Once CM/ECF has served all designated recipients, proof of electronic service is returned to the filing party.
[] (BY MAIL) I caused true copies of said document(s) to be enclosed in a sealed envelope(s) with postage thereon fully prepaid and the envelope(s) to be placed in the United States Mail at Ann Arbor, Michigan. I am readily familiar with the practice of the Thomas More Law Center for collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection.
[] (BY FACSIMILE) The above-referenced document(s) was transmitted by facsimile transmission to each recipient whose name and facsimile number appear on the service list. The transmission was reported as completed and without error. A true and correct copy of that transmission report is attached hereto and incorporated by reference.
[] (BY FEDERAL EXPRESS) I caused the above-described documents to be served on the interested parties noted on the service list by Federal Express.
[ [*76] X] I declare under penalty of perjury under the laws of the United States that the above is true and correct.
Executed on August 14, 2009, at Ann Arbor, Michigan.
/s/ Robert J. Muise Robert J. Muise
Counsel for Plaintiff Bradley Johnson
SERVICE LIST
Stutz Artiano Shinoff & Holtz Daniel R. Shinoff, Esq. Jack M. Sleeth, Jr., Esq. Paul V. Carelli, IV, Esq. 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106-6113
Counsel for Defendants Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle, Dr. Donald A. Phillips, William R. Chiment, and Dawn Kastner

 
 Page 1
View U.S. District Court Opinion
View Original Source Image of This Document BRADLEY JOHNSON, Plaintiff, vs. POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM; LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; and PENNY RANFTLE, all individually and in his or her official capacity as a Member of the Board of Education for the Poway Unified School District; DR. DONALD A. PHILLIPS, individually and in his official capacity as Superintendent of the Poway Unified School District; WILLIAM R. CHIMENT; individually and in his official capacity as Assistant Superintendent of the Poway Unified School District; and DAWN
KASTNER, individually and in her official capacity as Principal, Westview High School, Poway Unified School District, Defendants. CASE NO. 07cv783 BEN (NLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75415 August 14, 2009
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s) COUNSEL: [*1] STUTZ ARTIANO SHINOFF & HOLTZ, A Professional Corporation, Daniel R. Shinoff, Esq. (State Bar No. 99129), Jack M. Sleeth, Jr., Esq. (State Bar No. 108638), Paul V. Carelli IV, Esq. (State Bar No. 190773), San Diego, CA, Attorneys for Defendants, POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; PENNY RANFTLE; DR. DONALD A. PHILLIPS; WILLIAM R. CHIMENT; and DAWN KASTNER, Exempt from filing fee - Government Code sections 6103 & 26857. JUDGES: ICJ: Hon Roger T. Benitez TITLE: Notice Of And Defendants' Motion For Summary Judgment [FRCP 56] TEXT: TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD HEREIN:
NOTICE IS HEREBY given that on November 16, 2009 at 10:30 a.m., or as soon thereafter as the matter may be heard in Courtroom 3of the U.S. District Court, Southern District of California, located at 940 Front Street, 4th Floor, San Diego, California, 92101; Defendants POWAY UNIFIED SCHOOL DISTRICT, JEFF MANGUM, LINDA

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VANDERVEEN, PENNY RANFTLE, TODD GUTSCHOW, ANDY PATAPOW, DONALD A. PHILLIPS, WILLIAM R. CHIMENT and DAWN KASTNER will move this Court under Federal Rules of Civil Procedure, Rule 56 for an order granting summary judgment, [*2] or in the alternative, partial summary judgment, in favor of all Defendants.
The basis for the motion is that there is no genuine issue of material fact and that the facts show that Defendants did not violate Plaintiff's constitutional or statutory rights, and therefore judgment should be entered in Defendants' favor as a matter of law as to each of the six causes of action alleged in the Plaintiff's First Amended Complaint.
In the alternative, the Defendants move for partial summary judgment as to each of the six causes of action alleged in the Plaintiff's First Amended Complaint on the same grounds.
In addition, individual Defendants JEFF MANGUM, LINDA VANDERVEEN, PENNY RANFTLE, TODD GUTSCHOW, ANDY PATAPOW, DONALD A. PHILLIPS, WILLIAM R. CHIMENT and DAWN KASTNER will move for judgment dismissing monetary damages on the basis of qualified immunity under the undisputed facts, and therefore have no monetary liability in this case as a matter of law.
The Motion will be based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Separate Statement of Facts, the Declarations of Steven Salvati, Tina McDowell, and Paul V. Carelli IV, the Exhibits in support [*3] of the motion, the pleadings, discovery, papers and records on file with the Court in the instant action, as well as other documents and evidence which may be presented at the hearing, or of which the Court may take judicial notice.
DATED: August 14, 2009
STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation
By: /s/ Paul V. Carelli, IV Daniel R. Shinoff Jack M. Sleeth, Jr. Paul V. Carelli, IV Attorneys for Defendants POWAY UNIFIED SCHOOL DISTRICT, JEFF MANGUM, LINDA VANDERVEEN, PENNY RANFTLE, STEVE MCMILLAN, ANDY PATAPOW, DONALD PHILLIPS, WILLIAM CHIMENT, and DAWN KASTNER
POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [FRCP 56]
I. INTRODUCTION
Plaintiff Bradley Johnson is a math teacher at a local high school operated by Defendant Poway Unified School District ("School"). He prominently displayed two very large banners on the wall of his classroom. One banner had colored stripes like an American flag, and contained phrases in large block letters phrases reading: "'IN GOD WE TRUST"; "ONE NATION UNDER GOD"; "GOD BLESS AMERICA"; and "GOD SHED HIS GRACE ON THEE." The other banner had a white field, and read: [*4] "All Men Are Created Equal They Are Endowed By Their CREATOR" (the word "CREATOR" was in ALL CAPS in a font twice the size of the other words).
The School had Johnson remove the banners on grounds that the banners violated a school policy that limits the use

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of religious messages in the classroom. The School also contends that the banners, as displayed, violate the Establishment Clause of the First Amendment, and California Education Code, and therefore is within its rights to have them removed. On the other hand, Johnson claims that the School's removal of the banners constitutes a violation of his free speech and religious rights under both the United States and California Constitutions. The parties are now submitting cross-motions for summary judgment.
Here, under Ninth Circuit law, Johnson's First Amendment right to display his banners is trumped by the School's right to avoid excessive entanglement with religion prohibited by the Establishment Clause. Recent case law explains that a teacher may violate the Establishment Clause with a single sentence directed at students. So school districts need to be concerned about their teachers' speech. Here, because Johnson's speech is [*5] that of an employee, and not a private citizen, and because the religious nature of his banners advance religion over non-religion and one particular religious sect over others in violation of the Establishment Clause, the School did not violate Johnson's constitutional or statutory rights by having the banners removed. Furthermore, the School gave Johnson the option of posting the phrases in the actual context, like a poster containing the text of the Declaration of Independence, a poster with the text from the Pledge of Allegiance, and so forth. Accordingly, the School's removal of the banners does not violate Johnson's rights, and thus the Defendants' motion should be granted.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Mr. Johnson and His Banners
Bradley Johnson is a high school mathematics teacher, currently teaching at Westview High School, which is operated by the Poway Unified School District. First Amended Complaint (FAC), Doc. #17, P 6; Exh. "F," Johnson Depo., pp. 13:23-14:1. He is a Christian, and has taught with the District for 30 years. Doc. #17, P6; Exh. "F." Johnson Depo., p. 11:8-20. Johnson is currently the adviser for the Christian club at Westview, [*6] and has held that role since 2005. Exh. "F," Johnson Depo. p. 27:3-11. He was previously an advisor at schools where he taught previously. Exh. "F," Johnson Depo., p. 19:7-13.
Johnson prominently displayed two banners in his classroom during Fall, 2006. Both banners were 7 feet long by 2 feet wide, and were "displayed in a non-obstructive manner." Doc. #17, P 28; See also Exhs. "A'" and "B."
The first banner had red, white, and blue stripes, and was emblazoned with the following messages in large block letters: "IN GOD WE TRUST"; "ONE NATION UNDER GOD"; "GOD BLESS AMERICA"; and "GOD SHED HIS GRACE ON THEE." Doc, #17, P26; Exhs. "A" and "B." The phrase "In God We Trust" is the official motto of the United States. Doc. # 17, PP 29-30. The phrase "One Nation Under God" may be found in the Pledge of Allegiance. Doc. #17, P 34. The phrase "God Bless America" is a reference to the song of the same title written by Irving Berlin in the early 20th Century. Doc. #17, P 37. The phrase "God Shed His Grace On Thee" is a reference from the song, "America the Beautiful." Doc. #17, P 38. Mr. Johnson has had this banner or one like it hanging in his classroom since 1982. Exh. "F" Johnson Depo., [*7] pp. 78:20-79:24.
The second banner reads in large font: "All Men Are Created Equal, They Are Endowed By Their CREATOR." Exhs. "A" and "B". This phrase is a misquote from the preamble to the Declaration of Independence, which states, in part: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." http://www.archives.gov/exhibits/charters/declaration_transcript.html, emphasis added. The word "Creator" is in ALLCAPS typeface about twice the size of the other words on the banner, which are in Initial Caps; the word "CREATOR" also occupies its own line of text. Exhs. "A" and "B."
Johnson designed the layout of this particular banner so that the word "CREATOR" would be larger so that he could highlight that there was a supreme being who provided men with the rights described in the preamble to the Declaration of Independence. Exh. "F," Johnson Depo., pp. 88:2-89:2. Johnson had his "Declaration" banner made in

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1989, and has displayed it thereafter in his classroom. Exh. "F," Johnson Depo., p. 86:14-17. Doc #17, P27.
Johnson [*8] explained that the purpose of the two banners is for "celebrat[ing] our national heritage," "highlight[ing] the religious heritage and nature of our nation that we have as a foundation" and "espousing God as opposed to no God . . . but not any particular God." Exh. "F," Johnson Depo., pp. 95:15-24; 103:3-22. Both banners were located on walls in Johnson's classroom where they can be easily seen and read from where students sit in Johnson's classroom. Salvati Decl. P 3; Exhibit "B."
B. The Applicable School District Policies/Procedures.
Defendant William Chiment serves as the School's Associate Superintendent for Personnel Support Services, and has been in that position for ten years. Exh. "E," Chiment Depo, p. 20:5:16. According to Chiment, the District's informal practice is to permit teachers to decorate their classrooms with personal items such as posters, flags, or banners, within some limits. Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6. For example, teachers' personal items cannot violate the School's anti-harassment policy. Exh "E," Chiment Depo, pp. 58:4-21; 59:13-20. Some of the other limits the School may also take into consideration are the size of [*9] the item, the age appropriateness of the particular item for the students in the classroom, and the potential relationship to the curriculum. Exh. "E," Chiment Depo. pp. 77:8-78:3. For example, teachers could exhibit family photographs, but photographs of a family drinking alcohol heavily would not be permitted. Exh. "E," Chiment Depo., p.235:17-25.
The School also has a formal written policy regarding the teaching of controversial issues, which governs what teachers can post on their classroom walls. Exh. "E," Chiment Depo., p. 85:13-20. That formal policy, BP 3.11, provides, in part, that teachers must "exercise caution and discretion when deciding whether or not a particular issue is suitable for study or discussion in any particular class. Exh. "C." The policy also "requires teachers to ensure that all sides of a controversial issue are impartially presented with adequate and appropriate factual information" and "[w]ithout promoting any partisan point of view." Exh. "C."
This Policy has an attached Administrative Procedure, entitled AP 3.11.2, that contains a section concerning the "Responsibilities of Teachers." Exh. "D," pp. 13-15. Those responsibilities include "choos[ing] [*10] suitable and useful instructional materials," "direct[ing] class discussion to cover all points of view," distinguish[ing] between teaching and advocating, and refrain[ing] from using classroom teacher influence to promote partisan or sectarian viewpoints" Exh. "D," p. 14. AP 3.11.2 also has a section on the rights of students, and expressly gives students the "right to form and express individual opinions on controversial issues without jeopardizing relations with teachers or others." Exh. "D," p. 15. AP 3.11.2 also has a section entitled "The Selection of Issues." Within that section, the policy states that in general, "the decision as to whether a controversial issue should become a matter of school study should be based upon" ten listed criteria, including "1. It must contribute significantly to the objectives of the curriculum; . . . 6. The issue must involve alternate points of view which can be understood and defined by students; 7. The issue must be one about which information is present and available so alternatives can be discussed and evaluated on a factual and reasonable basis;. . . and 10. The issue must provide opportunity for critical thinking for the [*11] development of tolerance and the understanding of conflicting points of view, at the same time that it contributes to the prescribed course of study and the general educational program of the school." Exh. "D," p. 15.
Even non-curricular items are part of the learning environment and potentially advocating, and therefore such items subject to this written policy. Exh. "E," Chiment Depo. P 88:3-20; 90:1-24. Sometimes the School receives complaints from parents about only one side of an issue being taught, and the School works with principals to ensure that teachers are teaching both sides of an issue. Exh. "H," Robertson Depo., pp. 18:22-19:8.
In addition, it is Chiment's position that expression of religion within the District is proscribed by the law of the U.S. and State constitutions. Exh. "E" Chiment Depo., pp. 123:24-124:7. Chiment believes that the District's policies and procedures are consistent with the U.S. and State constitutions. Exh. "E", Chiment Depo., pp. 126:13-127:4.

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C. The Banners Come To the Attention of School Administrators.
Dawn Kastner serves as the Principal at Westview High School, and has been in that position since July 1, 2006. Exh. "G," Kastner [*12] Depo, p. 12:6-15. Early in her tenure as principal (sometime in Fall 2006), Mr. Subbiah, a Westview teacher, raised a concern with Kastner about why Johnson was permitted to have those signs in his room; Kastner also heard about the banners from a student and another teacher. So Kastner went into Johnson's classroom and saw the banners for the first time. Exh. "G" Kastner Depo, p. 37:15-38:14; 54:22-55:3, Kastner was concerned that the banners were very large, and inappropriately promoted a viewpoint advocating God, as the phrases were pulled out of their original context. Exh "G," Kastner Depo., pp. 42:17-43:6.
Kastner met with Johnson to discuss his banners. Kastner told Johnson that taking the phrases concerning God and putting them together in large print out of context was moving away from a patriotic comment to promotion of his religious beliefs that might make some students uncomfortable. Exh. "G," Kastner Depo, pp. 75:3-17. During the discussion, Kastner suggested to Johnson that an Islamic student walking into the classroom may feel bad, and feel like he or she would not fit in; Johnson replied something to the effect of "sometimes that's necessary." Exh. "G," Kastner Depo. [*13] , pp. 43:7-44:15. Johnson further explained he felt strongly that he needed the signs to stay up, that he had a right to have the banners up, and that he'd had them up for a long time. Exh. "G," Kastner Depo., pp. 76:1-6. Kastner suggested that Johnson put the phrases on the banners in context, such as posting the entire Declaration of Independence. Exh. "G,", Kastner Depo., pp. 43:7-44:15. She also suggested reducing the scale of the banners to "something small around the desk area." Exh. "G," Kastner Depo., p. 78:15-18
Kastner contacted Melavel Robertson (Assistant Superintendent for Learning Support Services) for guidance on these "really big" signs. Exh. "G" Kastner Depo., pp. 39:19-40:2; Exh. "H" Robertson Depo., p. 15:2-4. Kastner's secretary took pictures of the banners and sent them to Robertson. Exh. "G," Kastner Depo, pp. 40:3-10; McDowell Decl., P 2; Exh. "A." Robertson was concerned with the size of the banners; she felt that students of different faiths may feel uncomfortable with a banner that large, and this was discussed amongst the School's cabinet-level administrators. Exh. "H," Robertson Depo., pp 30:13-20; 35:9-36-4. Robertson referred Kastner to speak with Mr. [*14] Chiment, as Chiment is the person within the School to deal with personnel concerns that might raise legal issues. Exh. "H," Robertson Depo., pp. 29:3-30:12.
D. Johnson Is Asked To Remove The Banners From His Classroom Walls.
Mr. Chiment spoke with Kastner and reviewed photographs of the banners in Mr. Johnson's classroom. Exh. "E," p. 32:7-20. Ultimately, the decision to have Mr. Johnson remove his banners was made by Mr. Chiment. Exh. "D." This decision Was agreed to by the Superintendent's cabinet, which consists of Defendant Donald Philips (Superintendents), and the Deputy Superintendent, John Collins, Chiment, and the assistant superintendents. Exh "I," Collins, depo., pp. 21:21-22:23.
Mr. Chiment asked Mr. Johnson by telephone to remove his banners on or about January 19, 2007. Exh. D; Exh "E," Chiment depo, p. 32:3-6. Mr. Chiment sent a letter to Johnson dated January 23, 2007, to confirm the decision to have Johnson remove his banners, and to provide the legal basis for the decision in writing. Exh. "D"; Exh "E," Chiment depo, p. 31:1-10. Referring to the two banners, the letter states that "[T]he prominent display of these brief and narrow selections of text [*15] from documents and songs without the benefit of any context and of a motto, all which include the word 'God' or 'Creator' has the effect of using your influence as a teacher to promote a sectarian viewpoint." Exh. "D." The letter expressly notes the prohibitions in California Education Code section 51511 and AR 3.11.2 as grounds for the School's position. Exh. "D."
Chiment further explained that the reason Johnson was asked to remove his banners is because they violate District policy and procedure, consistent with the California and U.S. Constitutions and California Education Code. Specifically, the banners advocated a particular religious viewpoint over non-religion (atheism and agnosticsism), and they also advocated "God" over other religions that do not use the word "God" for a supreme being (such as Yahweh or

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Allah, for example). Exh "E," Chiment Depo, pp. 128:8-129:12; 133:14-134:2. Although religion is not a category of items prohibited from classroom walls, the District may prohibit religious viewpoints where the teacher appears to be teaching or advocating a religious viewpoint separate from a curricular context. Exh. "E," Chiment Depo, pp. 129:13-21. Chiment further believed [*16] that these banners could be a distraction to a student that was upset with the particular theology of the banners. Exh. "E," Chiment Depo., p 276:17-21.
Mr. Johnson was provided with some suggested alternative posters to post on his walls in lieu of his banners. Exh. "G," Kastner Depo., pp. 99:25-100:9." Mr. Chiment had asked his staff to go to a teacher supply store and buy items that would place the statements of Mr. Johnson's banners in context. Exh. "E," Chiment Depo, pp. 140:21-141:9. These suggested materials consisted of various posters depicting the entire text of the Declaration of Independence, displays of coinage containing the words "In God We Trust" and the text of the Pledge of Allegiance. Exh. "D." Mr. Johnson received these materials, but declined to display materials up in lieu of his banners. Exh. "K," Exh. "F," Johnson Depo., pp. 128:25-130:4.
E. Procedural Posture.
Based upon the facts alleged within it, the First Amended Complaint names six separate claims against the District and the individual defendants, comprised of the five School Board Members (Mangum, Vanderveen, Patapow, Gutschow, and Ranftle), District Superintendent Don Phillips, District Assistant [*17] Superintendent William Chiment, and Westview High Principal Dawn Kastner. Doc #17, pp. 3-4, 13-17.
The six claims are for: (1) Violation of Freedom of Speech under the First Amendment to the U.S. Constitution; (2) Violation of the Establishment Clause of the First Amendment to the U.S. Constitution; (3) Violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; (4) Violation of the Freedom of Speech under the California Constitution; (5) Violation of the No Preference Clause of the California Constitution; and (6) Violation of the Establishment Clause of the California Constitution. Doc. #17, pp. 13-17. The first three claims are brought under 42 U.S.C. section 1983. In addition to the enumerated claims, Johnson also alleges that the Defendants' actions violate Education Code section 51511. Doc. #17, P 54.
Defendants moved to dismiss the FAC under Rule 12(b)(6), and the court denied the motion. Doc #25. In that motion, however, the Court was confined to an analysis of the four corners of the complaint, and could not review extrinsic evidence in making its determination. See Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998). [*18] That restriction does not apply to the parties' cross-motions for summary judgment. n1 Fed.R.Civ.P. 56(c).
n1 The Court must consider each cross-motion separately "on its own merits" to determine whether any genuine issue of material fact exists. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). When evaluating cross-motions for summary judgment, the court must analyze whether the record demonstrates the existence of genuine issues of material fact, both in cases where both parties assert that no material factual issues exist, as well as where the parties dispute the facts. See Id. at 1136 (citing Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 & n. 5 (9th Cir.2000)).
III. DISCUSSION
A. Plaintiff's First And Fourth Claims for Violation of Freedom of Speech Does Not State A Claim Because Johnson's Banners Violate the Establishment Clause, The California Education Code, and School Policy. [*19]
The Defendants do not disagree that public school teachers have First Amendment rights. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506(1969). But those rights may be limited by a public employer. The question, then, is what test this court should apply to determine whether teacher classroom speech generally, and Johnson's speech specifically, warrants First Amendment protection.

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1. The Ninth Circuit uses a Pickering-style balancing test to decide whether a public employer may restrict employee speech, not a "forum analysis."
In ruling on the School's motion to dismiss, this Court ruled that the balancing test of Pickering v. Bd. of Educ., 391 U.S. 563 (1968) would not be useful in this case because the Ninth Circuit uses a "forum analysis" for school speech cases. Doc. #25, p. 6. n2 However, none of the cases cited by this Court in reaching that conclusion involved a public employer's limitation on an employee's speech. So those cases are distinguishable, and the Defendants respectfully disagree that forum analysis is applicable here.
n2 Citing Truth v. Kent School District, 524 F.3d 957, 972 (9th Cir.2008) (applying forum analysis); Flint v. Dennison, 488 F.3d 816, 830 (9th Cir.2007) (applying forum analysis); Hills v. Scottsdale Unified School Dist. No. 48, 329 F.3d 1044, 1048-50 (9th Cir.2003) (applying forum analysis); and Downs, 228 F.3d at 1009-11 (declining to apply forum analysis where speech at issue belongs to the school district).
[*20]
Accordingly, the Defendants reiterate their prior argument that the balancing test of Pickering is proper here because the case involves the Defendants' limitation of Johnson's workplace speech as an employee.
The Supreme Court has reaffirmed the use of the Pickering balancing test "[t]o reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission." City of San Diego v. Roe, 543 U.S. 77, 82 (2004).
Moreover, the Ninth Circuit recently applied a "slight variation" of the Pickering balancing test to religious speech made by a public employee in the workplace. See Berry v, Department of Social Services, 447 F.3d 642, 649-650 (9th Cir. 2006) ["we adhere to our practice of applying a balancing test when confronted with constitutional challenges to restrictions On public employee speech in the workplace."]
In reaching its conclusion that the balancing test applicable, the Berry court noted that public employers "must run the gauntlet of either being sued for not respecting an employee's rights under the Free Exercise and Free Speech clauses [*21] of the First Amendment or being sued for violating the Establishment Clause of the First Amendment by appearing to endorse its employee's religious expression. The Pickering balancing test recognizes these important, but sometimes competing, concerns and allows a public employer to navigate a safe course." Berry, 447 F.3d at 650. The Berry court also applied the Pickering balancing test to the question of whether the public employee may be restricted from displaying of religious items in the workplace, despite the employee's contention that such restriction amounted to "viewpoint discrimination," as Johnson does here. See Berry, 447 F.3d at 651. n3
n3 Defendants note that with respect to the Berry court's analysis of whether the school conference could be used by public employees for a prayer meeting, the court used a forum analysis. Berry, 447 F.3d at p. 651. Johnson, however, does not contend that the District is restricting use of school facilities, so the forum analysis does not apply here.
[*22]
The Ninth Circuit's use of the Pickering balancing test in teacher speech cases is in accord with the Sixth and Seventh Circuits, which have also used the Pickering analysis in assessing the limitations of teacher speech rights. See Cockrel v. Shelby County School Dist., 270 F.3d 1036, (6th Cir. 2001); Mayer v. Monroe County Community School Corp., 474 F.3d 477 (7th Cir. 2007).
2. Public schools may limit their employees religious speech to avoid entanglement with the Establishment

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Clause.
The "slight variation" of the Pickering test used by the Berry court balanced the teacher's right to speak against the public employer's mission to be free of Establishment Clause entanglement. Berry, 447 F.3d at 650.
This is consistent with Supreme Court jurisprudence, which "suggested in Widmar v. Vincent, 454 U.S. 263, 271 [citations](1981), that the interest of the State in avoiding an Establishment Clause violation 'may be [a] compelling' one justifying an abridgment of free speech otherwise protected by the First Amendment." Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394 (1993). [*23] The Supreme Court, however, has noted that "'whether a State's interest in avoiding an Establishment Clause violation would justify viewpoint discrimination' is an open one." Hills v. Scottsdale Unified Sch. Dist, 329 F.3d 1044, 1053 n. 7 (9th Cir.2003) (quoting Good News Club, 533 U.S. at 113).
The issue, however, is no longer open in the Ninth Circuit. The Ninth Circuit has "recognized that Establishment Clause concerns can justify speech restrictions 'in order to avoid the appearance of government sponsorship of religion.'" Hills, 329 F.3d at 1053 (quoting Lassonde v. Pleasanton Unified School Dist., 320 F.3d 979, 983-85 (9th Cir. 2003); citing Cole v. Oroville Union High School Dist., 228 F.3d 1092, 1103-05 (9th Cir. 2000), and Prince v. Jacoby, 303 F.3d 1074, 1082 (9th Cir.2002)).
The Ninth Circuit has applied this doctrine to public schools' restriction of teacher religious speech. In a case concerning a high school teacher's challenge to a restriction barring him from discussing religion with students, the Ninth Circuit held that the school district's interest in avoiding [*24] an Establishment Clause violation trumped the teacher's right to talk to students about religion. Peloza v. Capistrano Unified Sch. Dist, 37 F.3d 517, 522 (9th Cir.1994). The Peloza approach was cited with approval in Berry, 447 F.3d at 650. Accordingly, the Ninth Circuit's Pickering balancing test is the most appropriate for this case.
In the alternative, the Defendants suggest it would also be appropriate to apply the gloss on the Pickering balancing test first discussed in Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006). Whether the Garcetti refinement to the balancing test is applicable to employee speech in schools is an open question in the Ninth Circuit. The Fourth Circuit has declined to apply Garcetti, but the Seventh Circuit has applied it. Contrast Mayer, 474 F.3d 477 (7th Cir.2007) (finding that "Garcetti applie[d] directly," based on Seventh Circuit precedent that held that public school students, who are a captive audience, should not be subjected to teachers' idiosyncratic perspectives; rather, elected school boards should make policies about teaching contentious issues) [*25] with Lee v. York County Sch. Div., 484 F.3d 687, 695 n. 11 (4th Cir.), cert. denied, 128 S.Ct. 387 (2007) (continuing to apply traditional Pickering-Connick approach, because the Supreme Court did not "explicitly . . . decide whether [the Garcetti] analysis would apply in the same manner to a case involving speech related to teaching").
3. The Defendants' concern, that Johnson's banners impermissibly entangle the School in an Establishment Clause violation, is legitimate.
Applying the facts to the Ninth Circuit's balancing test, the scales tip in favor of the School Defendants. The School asked Johnson to remove his banners from his classroom walls because the prominent display of the brief and narrow selections of text from national documents and songs without the benefit of any context, and which all include the word 'God' or 'Creator,' promotes a religious viewpoint. Specifically, the banners advocate a particular religious viewpoint over non-religion (atheism and agnosticsism), and they also advocate "God" over other religions that do not use the word "God" for a supreme being (such as Yahweh or Allah, for example). Exh "E," Chiment [*26] Depo, pp. 128:8 129:12; 133:14-134:2. The School further believes that these banners could be a distraction to a student that was upset with the particular theology of the banners. Exh. "E" Chiment Depo., p 276:17-21. The School's officials are not constitutional scholars, but these notions adequately encapsulate the legal conclusion that to display the banners to students during school time on school grounds would violate the Establishment Clause of the First Amendment.

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As more fully explained below in the Defendants discussion of Johnson's Establishment Clause claim, infra, the test is that there is no violation under these circumstances: (1) the government's action must have a secular purpose; (2) its principal and primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
Here, Johnson's banners violate all three prongs of the Lemon test. First, the banners do not have a secular purpose. Johnson teaches math. The banners are not part of the curriculum. And by Johnson's own admission, the phrases on the banners were [*27] chosen not just to promote the nation's heritage, but also to espouse religion over non-religion. Exh. "F," p.103:3-22. This is evidenced by the use of the word CREATOR on the "Declaration" banner. The word "CREATOR" occupies its own line, is about twice as big as the other words on the banner, and is the only word in ALL CAPS, as if shouting to be noticed. Johnson said that the reason the word CREATOR is bigger is because he wanted to emphasize a supreme being's role in giving man his rights. This emphasis does not have a secular purpose.
Second, the principal and primary effect of the banners advance religion. Each of the five phrases, standing alone, might not run afoul of the First Amendment due to the historical implications of the phrases (a conclusion that School administrators acknowledge). See, e.g., Aronow v. United States, 432 F.2d 242 (9th Cir.1970) [national motto "In God We Trust" on currency does not violate Establishment Clause]. But when all of the phrases are joined together, they accumulatively de-emphasize the historical aspects of the speech, and instead emphasize the religious aspects of the speech. The secondary religious meaning behind [*28] each individual phrase becomes the primary meaning when strung together. In short, when viewed in their totality, the banners' message is less about Nation, and more about God. Thus, the primary effect is to advance the Christian religion.
Finally, Johnson's banners foster excessive government entanglement with religion. The Ninth Circuit has said it best with respect to Mr. Johnson: He "is not just any ordinary citizen. He is a teacher. He is one of those especially respected persons chosen to teach in the high school's classroom. He is clothed with the mantle of one who imparts knowledge and wisdom. His expressions of opinion are all the more believable because he is a teacher. The likelihood of high school students equating his views with those of the school is substantial." Peloza, supra, 37 F.3d at 522. "A teacher appears to speak for the state when he or she teaches; therefore, the department may permissibly restrict such religious advocacy." Tucker v. California State Dept. of Educ., 97 F.3d 1204, 1213 (9th Cir. 1996), citing Peloza, 37 F.3d at 522.
Here, Johnson's banners are both 7 feet by 2 feet with large typeface. [*29] Johnson's banners can be easily read by students in the classroom. See Exh. "B." Any student who does not agree with the notion that God is a supreme being or creator could be intimidated by Johnson's banners.
The School's concerns of excessive entanglement with respect to Johnson are particularly justified given that a single sentence uttered by a teacher directed at students during the school day may constitute an Establishment Clause violation. See C.F. v. Capistrano Unified School Dist., 615 F.Supp.2d 1137, 1156 (C.D. Cal., 2009). In C.F., the District Court found that a public high school teacher violated the Establishment Clause by telling his students of his unequivocal belief that creationism is "superstitious nonsense." Id. at pp. 1146, 1149, 1156.
If a one sentence disparagement of religion by a teacher violates the Establishment Clause, then the reverse must also be true: a one-sentence statement favoring a particular religious ideology also violates the Establishment Clause. And here, there is not just one phrase in Mr. Johnson's classroom, there are five. And worse, Johnson's speech is not "fleeting" like the speech in [*30] C.F. Rather, Johnson's speech was quite permanent, as evidenced by the fact that the banners were displayed for years. To permit Johnson to redisplay his banners in their entirety to a captive audience of students on a daily basis would violate the Establishment Clause of the First Amendment. Thus, the balancing test of Pickering tips in favor of restricting Johnson from displaying his banners in his classroom.
Alternatively, should this court decide that the Garcetti gloss on the Pickering balancing test applies, the scales tip even further in the School's favor. According to Garcetti, the focus should not be on the content of the speech, but on

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the role the speaker occupied when the speech was made. Id. at 1960. Accordingly, Garcetti held that the First Amendment does not protect employees' "expressions made pursuant to their official duties." Id. Thus, Johnson's First Amendment protections are substantially outweighed because is only permitted to display items in the classroom because he is a teacher. So by extension, the messages on the banners were displayed as part of his official duties, as they impart information to students during the school [*31] day.
4. Johnson's banners also violate the School's policies.
An additional reason supporting the School's removal of the banners is that the display of the banners violates School Policy and Procedure. Under AP 3.11.2, teachers are expected to refrain from using classroom teacher influence to promote partisan or sectarian viewpoints." Exh. "C," p. 3 of 4. Students also have "the right to form and express individual opinions on controversial issues without jeopardizing relations with teachers or others" under the policies. The District is certainly within its rights to remove the banners to ensure that the students' rights to have an opinion on religion does not jeopardize their class standing should the students wish to make their opinions known.
5. Even using a Hazelwood forum analysis, the Defendants still should prevail.
Defendants do not think that Johnson's classroom is anon-public forum. But as a fallback position, even if this Court were to find that Johnson's classroom was a non-public forum under the Hazelwood n4 analysis, the School would still be within its rights to remove the banners.
n4 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)
[*32]
The Ninth Circuit has recognized that in a "forum analysis" case, "Establishment Clause concerns can justify speech restrictions 'in order to avoid the appearance of government sponsorship of religion.'" Hills, supra, 329 F.3d at 1053, quoting Lassonde, supra, 320 F.3d 979 at 983-85, and citing Cole, supra, 228 F.3d 1092, 1103-05. Here, for the reasons explained above, the Defendants' concern with violating the Establishment Clause is a legitimate defense to Johnson's free speech claims.
Moreover, under the Ninth Circuit's interpretation of Hazelwood, schools may limit speech that bears the imprimatur of the school when the speech may place the school on one side of a controversial issue: "A school's decision not to promote or sponsor speech that is unsuitable for immature audiences, or which might place it on one side of a controversial issue, is a judgment call which Hazelwood reposes in the discretion of school officials and which is afforded substantial deference. We therefore conclude that controlling the content of school-sponsored publications so as to maintain the appearance of neutrality on a controversial issue [*33] is within the reserved mission of the [] District." Planned Parenthood v. Clark County School District, 941 F.2d 817, 829 (9th Cir.1991) (en banc), internal footnote omitted. The District meets this test.
First, there can be little debate that the banners in Johnson's classroom might be seen to bear the imprimatur of the school. Students have been in plain view of the banners as a captive audience for 25 years. The fact that the banners were hung inside the classroom leaves no doubt that others might view them as having the stamp of school approval, even if the speech is Johnson's speech. Certainly when a 7 foot by 2 foot banner is hanging in direct sight of a captive audience of students, an idea is being imparted, and this communication falls within the purview of Poway Board Policy 3.11. And if speech falls within the purview of a particular policy, then the public may assume that the District made a decision with respect to the speech under that policy.
Second, there is a legitimate pedagogical reason for the banners' removal: the District is ensuring that as an entity, it maintains its neutrality on a controversial issue and does not run afoul of the Establishment [*34] Clause. Plaintiff has made no argument as to why the District's concern regarding the Establishment Clause is not legitimate. Rather Plaintiff

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states only that "[a]s the alleged facts bear out, Defendants did not have a legitimate pedagogical concern for prohibiting Plaintiff's speech." Yet the reason is perfectly legitimate. It continues to be a controversial issue across the country whether speech combining the notion of God plus our nation's heritage is appropriate in the classroom setting. See, e .g. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004). The District has the discretion not to take sides on the issue.
6. The law is the same under the California constitution; the School may regulate teacher speech where the teacher is advocating a controversial viewpoint.
Turning to California law concerning free speech, "Article 1, section 2 of the California Constitution provides independent protection for free speech which in certain contexts exceeds the protection provided by the First Amendment to the United States Constitution." California Teachers Assn. v. Governing Board, 45 Cal.App.4th 1383, 1391 (1996). But in the context [*35] of the classroom activities of teachers, the state constitutional protection is identical to the federal protection: "We find the federal authorities which discuss First Amendment principles in the fairly unique context of school regulation of curricular activities accurately weigh the competing interests of school administrators, teachers and students. Id.
So, like his First Amendment claim, Johnson's Fourth Claim for violation of free speech under the California constitution also fails. This conclusion is consistent with the California Teachers Assn. case, which concluded that "when public school teachers and administrators are teaching students, they act with the imprimatur of the school district which employs them and ultimately with the imprimatur of the state which compels students to attend their classes." Id. at 1390. Accordingly, the court held that with respect to teacher speech inside the classroom, "school authorities retain the power to dissociate themselves from political controversy by prohibiting their employees from engaging in political advocacy in instructional settings." Id. at 1391. Summary judgment should therefore be [*36] entered on this claim also.
B. Plaintiff's Second and Sixth Claims for Violation of The Establishment Clause Fail Because The District's Policies Do Not Establish Any Religion and Are Neutral.
Johnson contends that Defendants have violated the Establishment Clause of both the United States and California constitutions by attempting to coerce him to change his religious belief. There are three tests used in the context of a school by the U.S. Supreme Court to determine whether the Establishment Clause has been violated. Santa Fe Independent School District v. Doe, 530 U.S. 290, 147 L.Ed.2d 295, 120 S.Ct. 2266 (2000).
The Lemon test, discussed earlier, states that there is no violation under these circumstances: (1) the government's action must have a secular purpose; (2) its principal and primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). This test is also used by the California appellate courts in analyzing Establishment Clause claims under state law. See Catholic Charities of Sacramento, Inc. v. Superior Ct., 32 Cal.4th 527, 546 (Cal. 2004) [*37] (cert. denied 125 S.Ct. 53).
The "endorsement" test collapses the first two prongs of the Lemon test, and "captures the essential command of the Establishment Clause, namely, that government must not make a person's religious beliefs relevant to his or her standing in the political community by conveying a message that religion or a particular religious belief is favored or preferred.'" County of Allegheny v. ACLU, 492 U.S. 573, 627 (1989) (quoting Wallace v. Jaffree, 472 U.S. 38, 69 (O'Connor, J. concurring in judgment)).
Finally, the coercion test states that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so." Lee v. Weisman, 505 U.S. 577, 587 (1992).

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Here, the District's decision to have Johnson remove his banners from display in his classroom had a secular purpose. The Board Policies and Regulations require that teachers refrain from espousing a single viewpoint when teaching controversial issues, and that teachers be inclusive [*38] of various points of view. See Exhs. "C" and "D." Pursuant to the policies and regulation, District restricted the display of the banners because the messages on the banners were partisan and sectarian in nature. The purpose of the removal was so that one viewpoint would not be promoted over another, the opposite of what Johnson is claiming with respect to his Establishment Clause claim. Furthermore, there was no entanglement with religion here because the Defendants' actions do not deprive Johnson of providing his opinion concerning religion outside of the school gates, or forbidding him keeping the phrases on the banners in a desk drawer so that he can view them daily (or even a very small version not in plain view of the students), and because the goal of the Defendants was to not advance any one particular religion.
California also uses the Lemon test to determine whether a government act violates the Establishment Clause of Article I, section 4. See DiLoreto v. Board of Education, 74 Cal.App.4th 267, 275-276 (1999). So Defendants' actions do not violate the Establishment Clause of Article I, § 4 of California Constitution either.
In short, the actions [*39] of the school officials in this case were consistent with the requirements under the Lemon test and therefore Johnson's claims for violations of the Establishment Clauses of both the Federal and State Constitutions fail. Defendants are entitled to judgment on these claims.
C. Johnson's Third Claim for Violation of the Equal Protection Clause Fails Because There Are No Facts Indicating Johnson Was Treated Differently From Similarly-Situated Employees.
To establish a claim under the Equal Protection Clause, Johnson must show that Defendants' actions in following District policy resulted in the him receiving disparate treatment compared to other similarly-situated employees. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Equal protection claims require strict scrutiny if the legislation discriminates against a suspect class or impinges upon a fundamental right. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The Equal Protection Clause may give rise to a cause of action even if the plaintiff does not allege membership in a class or group. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). [*40] However, this type of equal protection challenge is evaluated under a rational-basis test to determine whether the legislation at issue is irrational or wholly arbitrary. Conti v. City of Fremont, 919 F.2d 1385, 1389 (9th Cir.1990). In equal protection claims brought by a "class of one," the plaintiff must allege that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336 (1989).
Here, as previously explained, Defendants actions did not impinge on any fundamental right of Johnson. He is free to hold his own religious beliefs. But his First Amendment rights to display his banners are outweighed by the District's interest in preventing an Establishment Clause violation, and the banners, as they were displayed, violate the Establishment Clause.
The School is not trying to eradicate the notion of God or religion from its classroom, as Johnson has intimated in his complaint. Rather, the opposite is true. [*41] Johnson was provided materials by the School which contained some of the same phrases on his banner, but in their historical national context. To that end, that he could have pictures of coinage or money containing the phrase "In God We Trust." Exh. K." The School offered him the option of displaying a poster containing the text of the Declaration of Independence, which includes the words "creator" and "God." Exh. "K." The School had no problem with Johnson displaying the "Pledge of Allegiance" in its entirety, including the line "one nation under God." "Exh. K." He could also display all of the lyrics to the song "God Bless America." These items, if posted in their context, would alleviate any Establishment Clause entanglement. Johnson, however, refused to display these items in lieu of his banner. Exh. "F," Johnson Depo., pp. 128:25-130:4.
Johnson may contend in opposition to this motion that he is being treated differently than another Poway teacher, Lori Brickley, who has what apparently are known as "Tibetan prayer flags" displayed in her classroom. Exh. "J,"

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Brickley Depo., pp. 86:18-87:18. Exh. "L,"; Exh. "I," Collins Depo., p. 95:14-18. The flags, like Johnson's banners, are [*42] non-curricular personal items in nature, but contrary to Johnson's contentions, Brickley and Johnson have not been treated differently.
Unlike Johnson's banners, Brickley's flags do not violate the Establishment clause because they have a secular purpose, do not advance religion over non-religion, and do not excessively entangle the District with the support of a particular religion. Brickley's prayer flags are in a language, Sanskrit, that no person at the school (student or otherwise) has been able to read. Exh. "J," Brickley Depo., pp. 88:17-89:6. The prayer flags are decorative in nature, and an interesting artifact in that they are sold at the bottom of Mount Everest and placed on top of the mountain when climbers reach the top, as Brickley informs her students who ask. Exh. "J," Brickley Depo., pp. 87:20- 90:6; Exh. "E," Brickley herself maintains that religion does not belong in the classroom (Exh. "J," p. 118:6-8), so she is hardly displaying the banners for the purpose of promoting a religion. The banners have the secular purpose of motivating her students to achieve lofty goals, like mountain climbers trying to reach Everest's summit. Exh. "J," Brickley Depo., p. 89:7-22. There [*43] is a small figure on some flags that appears to be Buddhist in nature, but it is not prominent (Exh. "L"). And like the words God and Creator in a full display of text from the Declaration of Independence (Exh. "K"), the religious significance is far lesser than the whole of what it represents.
If the alternative materials the School provided to Johnson (which he chose not to display) do not violate the Establishment Clause or School policy, then neither do the prayer flags in Brickley's classroom. Johnson is being treated the same with respect to display of speech touching on religion as any other teacher.
Finally, the District's policies have a legitimate state interest in ensuring that all points of view, and not one single viewpoint, is heard by the students in the classroom. The District felt that Johnson's banners did not comply with the District's policy of inclusion of all viewpoints, and had him remove the banners. The District's decision was therefore narrowly tailored to achieve an important government interest.
For the above reasons, Johnson's Equal Protection claim fails as a matter of law.
D. Johnson's Fifth Claim For Violation of the California's "No Preference" [*44] Clause Fails Because The Defendants Did Not Show A Preference For Religion; Rather They Wanted To Keep Their Classrooms Religion-Neutral.
California's No Preference Clause reads: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed." Cal. Const. art. I, § 4. "California courts have interpreted the No Preference Clause to require that the government neither prefer one religion over another nor appear to act preferentially." Brown v. Woodland Joint Unified School Dist, 27 F.3d 1373, 1384 (9th Cir. 1994), citing Sands v. Morongo Unif. Sch. Dist., 53 Cal.3d 863, 872-878 (1991), cert. denied, 505 U.S. 1218 (1992).
Here, there are no facts to suggest that the Defendants removed Johnson's banners with an eye to advancing one religion over another. On the contrary, the Defendants were concerned that Johnson himself was one trying to advance his religion over non-religion and over other religions by hanging his banners. The intent of the school was to maintain neutrality concerning religion. Hence, this claim should be dismissed as well.
E. The Damages Claim Against The Individual Defendants [*45] Should Be Dismissed Due To Their Qualified Immunity.
Johnson's FAC prays for nominal damages against the individual defendants in their individual capacities. Doc. #17, p. 17. The damages claim should be dismissed because the individual defendants enjoy qualified immunity.
Qualified immunity shields public employees who perform discretionary functions from liability for civil damages where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person

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would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity shields them from civil damages liability as long as their actions could reasonably have been thought to be consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 638 (1987).
"When governmental officials assert the defense of qualified immunity to an action under 42 U.S.C. § 1983, a court evaluating the defense must first determine whether the plaintiff has alleged the deprivation of a constitutional right and, if so, then determine 'whether the right was clearly established at the time of the [*46] alleged violation.'" Cole v. Oroville Union High School Dist., 228 F.3d 1092, 1101 (9th Cir. 2000).
Here, the Defendants' actions fell well within the policies and law provided by the School District, and so the Court should find that there was no unlawfulness with respect to the state laws and the School's policies under pre-existing law. Anderson, supra, 483 U.S. at 640. The current state of the law gave Defendants no reason to believe that their decision to remove materials from Johnson's classroom was unconstitutional, especially in light of the Berry and Peloza cases cited infra. Therefore, the individual defendants are entitled to qualified immunity against Johnson's damages claims in this case.
IV. CONCLUSION
Schools are places of learning, and Johnson is a teacher at a school. It is his job to impart wisdom to students. And he has certain First Amendment rights. But school districts also must navigate the difficult course between the Scylla of not respecting its employee's First Amendment rights and the Charybdis of violating the Establishment Clause of the First Amendment by appearing to endorse religion. See Berry, supra, 447 F.3d at 645. [*47] Here, the Defendants successfully navigated those waters. Johnson's banners unduly promote the Christian religion because the religious aspects of the banners overwhelm the national heritage implications. Johnson was offered alternative materials that would place the phrases on the banners in context, highlighting the national heritage aspects, and diminishing any Establishment Clause concerns, while not scrubbing religion from the classroom, as would be against School policy. This was the correct course of conduct. Accordingly, the motion should be granted.
DATED: August 14, 2009
STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation
By: /s/ Paul V. Carelli, IV Daniel R. Shinoff Jack M. Sleeth, Jr. Paul V. Carelli, IV
Attorneys for Defendants POWAY UNIFIED SCHOOL DISTRICT, JEFF MANGUM, LINDA VANDERVEEN, PENNY RANFTLE, STEVE MCMILLAN, ANDY PATAPOW, DONALD PHILLIPS, WILLIAM CHIMENT, and DAWN KASTNER
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [FRCP 56; Local Rule 7.1]
Defendants POWAY UNIFIED SCHOOL DISTRICT, JEFF MANGUM, LINDA VANDERVEEN, PENNY RANFTLE, TODD GUTSCHOW, ANDY PATAPOW, DONALD A. PHILLIPS, [*48] WILLIAM R. CHIMENT and DAWN KASTNER hereby submit the following separate statement of undisputed facts in support of their Motion for Summary Judgment:

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Defendants' Undisputed Material Facts
Bradley Johnson is a high school mathematics teacher, currently teaching at Westview High School, which is operated by the Poway Unified School District.
Johnson is a Christian, and has taught with the District for 30 years.
Johnson is currently the adviser for the Christian club at Westview, and has held that role since 2005.
Johnson was previously a Christian club advisor at schools where he taught previously.
Johnson prominently displayed two banners in his classroom during Fall, 2006. Both banners were 7 feet long by 2 feet wide, and were "displayed in a non-obstructive manner."
The first banner had red, white, and blue stripes, and was emblazoned with the following messages in large block letters: "IN GOD WE TRUST"; "ONE NATION UNDER GOD"; "GOD BLESS AMERICA"; and "GOD SHED HIS GRACE ON THEE."
The phrase "In God We Trust" is the official motto of the United States.
The phrase "One Nation Under God" may be found in

Evidentiary Support First Amended Complaint (FAC), Doc. #17, P 6; Exh. "F," Johnson Depo., pp. 13:23-14:1.
FAC Doc. #17, P6; Exh. "F." Johnson Depo., p. 11:8-20.
Exh. "F," Johnson Depo. p. 27:3-11.
Exh. "F," Johnson Depo., p. 19:7-13.
FAC Doc. #17, P 28; See also Exhs. "A" and "B"
FAC Doc. #17, P 26; Exhs. "A" and "B"
FAC Doc. #17, PP 29-30.
FAC Doc. #17,

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the Pledge of Allegiance.
The phrase "God Bless America" is a reference to the song of the same title written by Irving Berlin in the early 20th Century.
The phrase "God Shed His Grace On Thee" is a reference from the song, "America the Beautiful."
Mr. Johnson has had the striped banner with four phrases or one like it hanging in his classroom since 1982.
The second banner reads in large font: "All Men Are Created Equal, They Are Endowed By Their CREATOR." This phrase is a misquote from the preamble to the Declaration of Independence, which states, in part: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The word "Creator" on the "Declaration" banner is in ALLCAPS typeface about twice the size of the other words on the banner, which are in Initial Caps; the word "CREATOR" also occupies its own line of text.
Johnson designed the layout of the "Declaration" banner so that the word "CREATOR" would be larger so that he could highlight that there was a supreme being who provided men with the rights described in the preamble to the Declaration of Independence.
Johnson had his "Declaration" banner made in 1989, and has displayed it thereafter in his classroom.

P 34.
FAC Doc. #17, P 37.
FAC Doc. #17, P 38.
Exh. "F" Johnson Depo., pp. 78:20-79:24.
Exhs. "A" and "B"; http:// www.archives.gov /exhibits/c harters /declaration_ transcript.html, emphasis added.
Exhs. "A" and "B."
Exh. "F," Johnson Depo., pp. 88:2-89:2.
Exh. "F," Johnson Depo., p. 86:14-17.

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Johnson explained that the purpose of the two banners is for "celebrat[ing] our national heritage," "highlight[ing] the religious heritage and nature of our nation that we have as a foundation" and "espousing God as opposed to no God . . . but not any particular God."
Both banners were located on walls in Johnson's classroom where they can be easily seen and read from where students sit in Johnson's classroom.
Defendant William Chiment serves as the School's Associate Superintendent for Personnel Support Services, and has been in that position for ten years.
According to Chiment, the District's informal practice is to permit teachers to decorate their classrooms with personal items such as posters, flags, or banners, within some limits.
But teachers' personal items cannot violate the School's anti-harassment policy.
Some of the other limits the School may also take into consideration are the size of the item, the age appropriateness of the particular item for the students in the classroom, and the potential relationship to the curriculum.
For example, teachers could exhibit family photographs, but photographs of a family drinking alcohol heavily would not be permitted by the School.
The School also has a formal written policy regarding

Doc #17, P 27.
Exh. "F," Johnson Depo., pp. 95:15-24; 103:3-22.
Salvati Decl. P 3; Exhibit "B".
Exh. "E," Chiment Depo, p. 20:5:16.
Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
Exh "E," Chiment Depo, pp. 58:4-21; 59:13-20.
Exh. "E," Chiment Depo. pp. 77:8-78:3.
Exh. "E," Chiment Depo., p.235:17-25.
Exh. "E,"

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the teaching of controversial issues, which governs what teachers can post on their classroom walls.
Poway Board Policy BP 3.11, provides, in part, that teachers must "exercise caution and discretion when deciding whether or not a particular issue is suitable for study or discussion in any particular class.
Poway Board Policy 3.11 policy also "requires teachers to ensure that all sides of a controversial issue are impartially presented with adequate and appropriate factual information" and "[w]ithout promoting any partisan point of view."
BP 3.11has an attendent Administrative Procedure, entitled AP 3.11.2, that contains a section concerning the "Responsibilities of Teachers."
Those responsibilities include "choos[ing] suitable and useful instructional materials," "direct[ing] class discussion to cover all points of view," distinguish[ing] between teaching and advocating, and refrain[ing] from using classroom teacher influence to promote partisan or sectarian viewpoints."
AP 3.11.2 also has a section on the rights of students, and expressly gives students the "right to form and express individual opinions on controversial issues without jeopardizing relations with teachers or others."
AP 3.11.2 also has a section entitled "The Selection of Issues." Within that section, the policy states that in general, "the decision as to whether a controversial issue should become a matter of school study should be based upon" ten listed criteria, including "1. It must contribute significantly to the objectives of the curriculum; . . . 6. The issue must involve alternate points of view which can be understood and defined

Chiment Depo., p. 85:13-20. Exh. "C."
Exh. "C."
Exh. "D," pp. 13-15. Exh. "D," p. 14.
Exh. "D," p. 15.
Exh. "D," p. 15.

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by students; 7. The issue must be one about which information is present and available so alternatives can be discussed and evaluated on a factual and reasonable basis; . . . and 10. The issue must provide opportunity for critical thinking for the development of tolerance and the understanding of conflicting points of view, at the same time that it contributes to the prescribed course of study and the general educational program of the school."
Even non-curricular items are part of the learning environment and potentially advocating, and therefore such items subject to this written policy.
Sometimes the School receives complaints from parents about only one side of an issue being taught, and the School works with principals to ensure that teachers are teaching both sides of an issue.
In addition, it is Chiment's position that expression of religion within the District is proscribed by the law of the U.S. and State constitutions.
Chiment believes that the District's policies and procedures are consistent with the U.S. and State constitutions.
Dawn Kastner serves as the Principal at Westview High School, and has been in that position since July 1, 2006.
Early in her tenure as principal (sometime in Fall 2006), Mr. Subbiah, a Westview teacher, raised a concern with Kastner about why Johnson was permitted to have those signs in his room; Kastner also

Exh. "E," Chiment Depo. P 88:3-20; 90:1-24.
Exh. "H," Robertson Depo., pp. 18:22-19:8.
Exh. "E" Chiment Depo., pp. 123:24-124:7.
Exh. "E", Chiment Depo., pp. 126:13-127:4.
Exh. "G," Kastner Depo, p. 12:6-15.
Exh. "G" Kastner Depo, p. 37:15-38:14; 54:22-55:3.

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heard about the banners from a student and another teacher. So Kastner went into Johnson's classroom and saw the banners for the first time.
Kastner was concerned that the banners were very large, and inappropriately promoted a viewpoint advocating God, as the phrases were pulled out of their original context.
Kastner met with Johnson to discuss his banners. Kastner told Johnson that taking the phrases concerning God and putting them together in large print out of context was moving away from a patriotic comment to promotion of his religious beliefs that might make some students uncomfortable.
Kastner suggested to Johnson that an Islamic student walking into the classroom may feel bad, and feel like he or she would not fit in; Johnson replied something to the effect of "sometimes that's necessary."
Johnson explained to Kastner that he felt strongly that he needed the signs to stay up, that he had a right to have the banners up, and that he'd had them up for a long time.
Kastner suggested to Johnson that he put the phrases on the banners in context, such as posting the entire Declaration of Independence.
Kastner also suggested to Johnson that he reduce the scale of the banners to "something small around the desk area."
Kastner contacted Melavel Robertson (Assistant Superintendent for Learning Support Services) for guidance on these "really big" signs.

Exh "G," Kastner Depo., pp. 42:17-43:6.
Exh. "G," Kastner Depo, pp. 75:3-17.
Exh. "G," Kastner Depo., pp. 43:7-44:15.
Exh. "G," Kastner Depo., pp. 76:1-6.
Exh. "G,", Kastner Depo., pp. 43:7-44:15.
Exh. "G," Kastner Depo., p. 78:15-18.
Exh. "G" Kastner Depo., pp. 39:19-40:2; Exh. "H"

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Kastner's secretary took pictures of the banners and sent them to Robertson.
Robertson was concerned with the size of the banners; she felt that students of different faiths may feel uncomfortable with a banner that large, and this was discussed amongst the School's cabinet-level administrators.
Robertson referred Kastner to speak with Mr. Chiment, as Chiment is the person within the School to deal with personnel concerns that might raise legal issues.
Mr. Chiment spoke with Kastner and reviewed photographs of the banners in Mr. Johnson's classroom.
Ultimately, the decision to have Mr. Johnson remove his banners was made by Mr. Chiment.
This decision was agreed to by the Superintendent's cabinet, which consists of Defendant Donald Philips (Superintendents), and the Deputy Superintendent, John Collins, Chiment, and the assistant superintendents.
Mr. Chiment asked Mr. Johnson by telephone to remove his banners on or about January 19, 2007.

Robertson Depo., p. 15:2-4.
Exh. "G," Kastner Depo, pp. 40:3-10; McDowell Decl., P 2; Exh. "A."
Exh. "H," Robertson Depo., pp 30:13-20; 35:9-36-4.
Exh. "H," Robertson Depo., pp. 29:3-30:12.
Exh. "E," Chiment Depo., p. 32:7-20.
Exh. "D."
Exh "I" Collins, depo., pp. 21:21-22:23.
Exh. D; Exh "E," Chiment depo, p. 32:3-6. "

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Mr. Chiment sent a letter to Johnson dated January 23, 2007, to confirm the decision to have Johnson remove his banners, and to provide the legal basis for the decision in writing.
Referring to the two banners, the January 23 letter states that "[t]he prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all which include the word 'God' or 'Creator' has the effect of using your influence as a teacher to promote a sectarian viewpoint."
The January 23 letter expressly notes the prohibitions in California Education Code section 51511 and AR 3.11.2 as grounds for the School's position.
Chiment has explained that the reason Johnson was asked to remove his banners is because they violate District policy and procedure, consistent with the California and U.S. Constitutions and California Education Code. Specifically, the banners advocated a particular religious viewpoint over non-religion (atheism and agnosticsism), and they also advocated "God" over other religions that do not use the word "God" for a supreme being (such as Yahweh or Allah, for example).
Although religion is not a category of items prohibited from classroom walls, the District may prohibit religious viewpoints where the teacher appears to be teaching or advocating a religious viewpoint separate from a curricular context.
Chiment further believed that these banners could be a distraction to a student that was upset with the particular theology of the banners.

Exh. "D"; Exh "E" Chiment depo, p. 31:1-10. Exh. "D."
Exh. "D.
Exh "E," Chiment Depo, pp. 128:8 129:12; 133:14-134:2.
Exh. "E," Chiment Depo, pp. 129:13-21.
Exh. "E," Chiment Depo., p 276:17-21.

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Mr. Johnson was provided with some suggested alternative posters to post on his walls in lieu of his banners.
Mr. Chiment had asked his staff to go to a teacher supply store and buy items that would place the statements of Mr. Johnson's banners in context.
These suggested materials consisted of various posters depicting the entire text of the Declaration of Independence, displays of coinage containing the words "In God We Trust" and the text of the Pledge of Allegiance.
Mr. Johnson received these materials, but declined to display materials up in lieu of his banners.
Poway teacher Lori Brickley has what apparently are known as "Tibetan prayer flags" displayed in her classroom.
Brickley's prayer flags are in a language, Sanskrit, that no person at the school (student or otherwise) has been able to read.
The prayer flags are decorative in nature, and an interesting artifact in that they are sold at the bottom of Mount Everest and placed on top of the mountain

Exh. "G" Kastner Depo., pp. 99:25-100:9.
Exh. "E" Chiment Depo, pp. 140:21-141:9.
Exhs. "D" and "K."
Exh. "K," Exh. "F" Johnson Depo., pp. 128:25-130:4.
Exh. "J," Brickley Depo., pp. 86:18-87:18. Exh. "L,"; Exh. "I," Collins Depo., p. 95:14-18.
Exh. "J," Brickley Depo., pp. 88:17-89:6.
Exh. "J," Brickley Depo., pp. 87:20-90:6.

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when climbers reach the top, as Brickley informs her students who ask.

Brickley's personal belief is that religion does not belong in the classroom.

Exh. "J," p. 118:6-8

Brickley says her flags have the purpose of motivating her students to achieve lofty goals, like mountain climbers trying to reach Everest's summit.

Exh. "J," Brickley Depo., p. 89:7-22.

There is a small figure on some flags that appears to be Buddhist in nature, but that is unclear, and it is not prominent. [*49]

Exh. "L"

DATED: August 14, 2009

STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation

By: /s/ Paul V. Carelli, IV Daniel R. Shinoff Jack M. Sleeth, Jr. Paul V. Carelli, IV Attorneys for Defendants POWAY UNIFIED SCHOOL DISTRICT, JEFF MANGUM, LINDA VANDERVEEN, PENNY RANFTLE, STEVE MCMILLAN, ANDY PATAPOW, DONALD PHILLIPS, WILLIAM CHIMENT, and DAWN KASTNER
DECLARATION OF PAUL V. CARELLI IV IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [FRCP 56]

I, PAUL V. CARELLI, IV, hereby declare:
1. I am an attorney at law duly licensed to practice law in the State of California and am a member in the law firm of Stutz, Gallagher, Artiano, Shinoff & Holtz, A.P.C., attorneys of records for Defendants, POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; PENNY RANFTLE; DR. DONALD A. PHILLIPS; WILLIAM R. CHIMENT; and DAWN KASTNER in the above-entitled San Diego Superior Court lawsuit. If called upon as a witness, I would competently testify to the following:
2. The exhibits attached to the Defendants' List of Exhibits in support of the Defendants Motion for Summary Judgment are true and correct copies of the originals as follows: [*50]

Exhibit "A" - Photographs of Johnson's banners taken by Tina McDowell;

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Exhibit "B" - Photographs of Johnson's banners taken by Steven Salvati;
Exhibit "C" - Poway Unified School District Board Policy 3.11;
Exhibit "D" - Letter from William Chiment to Bradley Johnson dated January 23, 2007, attaching California Education Code section 51511 and Poway Unified School District Board Policy 3.11.2;
Exhibit "E" - Excerpts from the condensed certified Deposition of William Chiment taken on May 14, 2009;
Exhibit "F" - Excerpts from the condensed certified Deposition of Bradley Johnson taken on May 15, 2009;
Exhibit "G" - Excerpts from the condensed certified Deposition of Dawn Kastner taken on June 2, 2009;
Exhibit "H' - Excerpts from the condensed certified Deposition of Melavel Robertson taken on June 22, 2009;
Exhibit "I" - Excerpts from the condensed certified Deposition of John Collins (vol. 1) taken on May 12, 2009;
Exhibit "J" - Excerpts from the condensed certified Deposition of Lori Brickley taken on June 3, 2009;
Exhibit "K" - Photographs taken by Bradley Johnson of alternate materials provided to Johnson by the School for [*51] use in lieu of his banners the hearing. Exhibit "L" - Photographs of Tibetan Prayer Flags in Lori Brickley's classroom.
I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct to my personal knowledge.
This declaration is executed on the 14th day of August, 2009, at Temecula, California.
/s/ Paul V. Carelli IV
PAUL V. CARELLI, IV
DECLARATION OF SERVICE
I am and was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of San Diego in the office of a member of the bar of this court at whose direction the service was made. My business address is 2488 Historic Decatur Road, Suite 200, San Diego, CA92106-6113. On August 14, 2009, I served the following documents on Plaintiff's counsel:
(1) NOTICE OF AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [FRCP 56] (2) POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [FRCP 56] (3) SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [FRCP 56; Local Rule [*52] 7.1] (4) DEFENDANTS' EXHIBIT LIST IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [FRCP 56] (5) DECLARATION OF STEVEN SALVATI IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (6) DECLARATION OF TINA McDOWELL IN

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SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (7) DECLARATION OF PAUL V. CARELLIIV IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [FRCP 56]
[X] BY ELECTRONIC SERVICE On the date executed below, I served the document(s) via CM/ECF described above on designated recipients through electronic transmission of said documents, a certified receipt is issued to filing party acknowledging receipt by CM/ECF's system. Once CM/ECF has served all designated recipients, proof of electronic service is returned to the filing party.
Charles S. LiMandri, Esq. L/O OF CHARLES S. LiMANDRI P.O. Box 9120 Rancho Santa Fe, CA 92067-4120 (858)759-9930 Fax: (858)759-9938 climandri@limandri.com
Robert J. Muise Thomas More Law Center 24 Frank Lloyd Wright Drive Ann Arbor, MI 48105 (734)827-2001 Fax: (734)930-7160 rmuise@thomasmore.org
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [*53]
Executed on August 14, 2009, at San Diego, California.
/s/ [Signature] Patricia S. Donnelly
[SEE EXHIBIT "A" IN ORIGINAL]
[SEE EXHIBIT "B" IN ORIGINAL]
[SEE EXHIBIT "C" IN ORIGINAL]
[SEE EXHIBIT "D" IN ORIGINAL]
[SEE EXHIBIT "E" IN ORIGINAL]
[SEE EXHIBIT "F" IN ORIGINAL]
[SEE EXHIBIT "G" IN ORIGINAL]
[SEE EXHIBIT "H" IN ORIGINAL]
[SEE EXHIBIT "I" IN ORIGINAL]
[SEE EXHIBIT "J" IN ORIGINAL]

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[SEE EXHIBIT "K" IN ORIGINAL]
[SEE EXHIBIT "L" IN ORIGINAL]
[SEE DECLARATION OF STEVEN SALVATI IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMNET IN ORIGINAL]
[SEE DECLARATION OF TINA MCDOWELL IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN ORIGINAL]

 
 Page 1
View U.S. District Court Opinion
View Original Source Image of This Document BRADLEY JOHNSON, Plaintiff, vs. POWAY UNIFIED SCHOOL DISTRICT JEFF MANGUM; LINDA VANDERVEEN ANDREW PATAPOW; TODD GUTSCHOW; and PENNY RANFTLE, all individually and in his or her official capacity as a Member of the Board of Education for the Poway Unified School District; DR. DONALD A. PHILLIPS, individually and in his official capacity as Superintendent of the Poway Unified School District; WILLIAM R. CHIMENT; individually and in his official capacity as Assistant Superintendent of the Poway Unified School District; and DAWN
KASTNER, individually and in her official capacity as Principal, Westview High School, Poway Unified School District, Defendants. CASE NO. 07cv783 BEN (NLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75417 September 28, 2009
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s) COUNSEL: [*1] STUTZ ARTIANO SHINOFF & HOLTZ, A Professional Corporation, Daniel R. Shinoff, Esq. (State Bar No. 99129), Jack M. Sleeth, Jr., Esq. (State Bar No. 108638), Paul V. Carelli IV, Esq. (State Bar No. 190773), San Diego, CA, Attorneys for Defendants, POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; PENNY RANFTLE; DR. DONALD A. PHILLIPS; WILLIAM R. CHIMENT; and DAWN KASTNER. JUDGES: ICJ: Hon Roger T. Benitez; MAG: Hon. Nita L. Stormes TITLE: Defendants' Opposition To Plaintiff Bradley Johnson's Motion For Summary Judgment TEXT: I. INTRODUCTION
This is not a "forum" analysis case, as Plaintiff Johnson would have this Court rule. Plaintiff is not a private citizen in the context of this case; rather, he is an employee of a public entity. That public entity, the School, may limit teacher speech when that speech runs afoul of the Establishment Clause.

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Mr. Johnson specifically selected five phrases relating to God from songs and other patriotic/historical material. Johnson did not choose any phrases from this historical material that did not reference God or a Creator. The school gave him the option of putting those five phrases in historical/ [*2] practical context, such as posting the entire text of the Declaration of Independence, and Mr. Johnson refused. This refusal shows that Mr. Johnson is not interested in the historical aspect of the phrases, only the religious aspect of the phrases.
Had Mr. Johnson posted a single phrase from the "striped" banner, instead of all four, there would not be an issue; the School would have permitted the phrase to stand. But when all four phrases are viewed together, along with the "Creator" banner where the word "Creator" is highlighted, then the patriotic nature of the individual phrases is de-emphasized, and the religious nature of the phrases emphasized, changing the nature of the words from patriotic to devotional. If one phrase is permissible, then how many phrases concerning God does it take to cross the line from drawing a historical reference into an entanglement with religion violative of the Establishment Clause? Three? Ten? The Defendants suggest that the line is crossed when school administrators reasonably believe that there has been an entanglement that promotes one religion over another or over no religion. And here, the School administrators reasonably believed that [*3] the five phases in the classroom crossed the line.
On balance, the Defendants had every right to maintain their mission to be free from religious promotion in the school classroom. Mr. Johnson's free speech rights are outweighed by the School's rights to be free from an Establishment Clause violation.
II. FACTS
The Defendants' recitation of facts can be found in part II of its points and authorities in support of their motion for summary judgment. Doc. #55-2. The District objects on relevance grounds to the multitude of photographs of other classroom items submitted by Johnson. Those items are not germane as to whether Mr. Johnson's banners violate the Establishment Clause.
But the core facts are not in dispute: Mr. Johnson displayed two banners in his classroom on a continuous basis that could be read by his students. One was the "striped" banner and one was the "CREATOR" banner. Mr. Johnson was asked to remove the banners by the School, and he complied. The legal issue is whether the School was permitted to do so on grounds that the banners unconstitutionally promoted one religion over another and religion over non-religion.
III. DISCUSSION
A. Schools Have [*4] The Authority To Control Conduct In Their Learning Environments, And Therefore Johnson's Free Speech Claims Fail.
Plaintiff begins his points and authorities by quoting Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969) for the proposition that teachers do not shed their constitutional rights at the schoolhouse gates. Doc. #43-2, p. 1. But Plaintiff ignores the more compelling quote from Tinker that applies to this case: "[T]he Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker, 393 U.S. 503, 506-07.
To that end, "the interest of the State in avoiding an Establishment Clause violation 'may be [a] compelling' one justifying an abridgement of free speech otherwise protected by the First Amendment...." Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993) (quoting Widmar v. Vincent, 454 U.S. 263, 271 (1981)). This principle applies in this case. The Defendants' interest in avoiding [*5] an Establishment Clause violation trumps Johnson's right to free speech.
1. The Forum Analysis Test Is Not Proper Here.

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The Defendants do not disagree that Johnson's banners constitute "speech." The Defendants also do not disagree that public school teachers have First Amendment rights. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). But those rights are not unlimited.
The question, then, is what test this court should apply to determine whether teacher classroom speech generally, and Johnson's speech specifically, warrants First Amendment protection. Johnson asserts that a traditional forum analysis is applicable, contending that this case involves the use of public property for expressive purposes. Doc. 43-2, pp. 8-9.
But Johnson misses the bigger picture by setting the parameters too broadly. This case is not about any member of the public speaking to students, or students speaking to students. Rather, this case is about a public employee's rights to speech vis-a-vis his public employer's right to protect its own legitimate interests in performing its mission of educating kids. And that type of balancing is exactly [*6] what is called for here, consistent with Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The Pickering balancing test requires a court evaluating restraints on a public employee's speech to balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." City of San Diego v. Roe, 543 U.S. 77, 82 (2004) (quoting Pickering, 391 U.S. at 568).
2. The Ninth Circuit uses a Pickering-style balancing test to decide whether a public employer may restrict employee speech, not a "forum analysis."
In ruling on the School's motion to dismiss, this Court ruled that the balancing test of Pickering v. Bd. of Educ., 391 U.S. 563 (1968) would not be useful in this case because the Ninth Circuit uses a "forum analysis" for school speech cases. Doc. #25, p. 6. n1 However, none of the cases cited by this Court in reaching that conclusion involved a public employer's limitation on an employee's speech. So those cases are distinguishable, and the Defendants [*7] respectfully disagree that forum analysis is applicable here.
n1 Citing Truth v. Kent School District, 524 F.3d 957, 972 (9th Cir.2008) (applying forum analysis); Flint v. Dennison, 488 F.3d 816, 830 (9th Cir.2007) (applying forum analysis); Hills v. Scottsdale Unified School Dist. No. 48, 329 F.3d 1044, 1048-50 (9th Cir.2003) (applying forum analysis); and Downs v. Los Angeles Unified School Dist., 228 F.3d 1003, 1009-11 (9th Cir. 2000) (declining to apply forum analysis where speech at issue belongs to the school district).
Accordingly, the Defendants reiterate their prior argument that the balancing test of Pickering is proper here because the case involves the Defendants' limitation of Johnson's workplace speech as an employee.
3. The Peloza Case: Teachers May Not Evangelize In the Public-School Classroom.
Under Ninth Circuit jurisprudence, there is no question that a school district may prevent a teacher from speaking about [*8] religion on a school campus in an effort to avoid an Establishment Clause violation. Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 522-523 (9th Cir.1994). In Peloza, a teacher claimed, in part, that his free speech rights were violated by the school district where he taught, where the school district told the teacher that he was to refrain from evangelizing Christianity or initiating conversations about his religious beliefs. Id. at 522. The Ninth Circuit initially determined that the teacher's "ability to talk with students about religion during the school day is a restriction on his right of free speech." Id. However, the Peloza court found the school district's restriction on the teacher's speech to be permissible because the school district's right to be free from an Establishment Clause violation trumped the teacher's speech rights. Id.
In reaching this conclusion, the Peloza court stated that whether in the classroom or not during contract hours, the teacher "is not just any ordinary citizen. He is a teacher. He is one of those especially respected persons chosen to teach

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in the high school's classroom. He is clothed [*9] with the mantle of one who imparts knowledge and wisdom. His expressions of opinion are all the more believable because he is a teacher. The likelihood of high school students equating his views with those of the school is substantial. To permit him to discuss his religious beliefs with students during school time on school grounds would violate the Establishment Clause of the First Amendment." Id. To that end, the Peloza court cited with approval the case of Roberts v. Madigan, 921 F.2d 1047, 1056-58 (10th Cir.1990) (teacher could be prohibited from reading Bible during silent reading period, and from stocking two books on Christianity on shelves, because these things could leave students with the impression that Christianity was officially sanctioned), cert. denied, 505 U.S. 1218, 112 S.Ct. 3025, 120 L.Ed.2d 896 (1992).
4. The Berry Case: The Pickering balancing test applies to workplace speech and displays of public employees.
The Peloza court's approach to public employee religious speech was cited with approval in the later Ninth Circuit case of Berry v. Department of Social Services, 447 F.3d 642, 650 (9th Cir. 2006). [*10] The Berry case is also important because it utilized the dichotomy of the Pickering test on one hand, and the "forum analysis" test on the other hand, for two very different purposes. Specifically, the Ninth Circuit applied a slight variation of the Pickering test for employee workplace speech, whereas it applied a forum analysis test to determine the restriction on use of a public entity's physical space to hold prayer meetings.
In Berry, a county social services department employee sued his employer, alleging that the department's rules restricting him from discussing religion with clients, displaying religious items in his cubicle, and using a conference room for prayer meetings, violated his free speech and free exercise rights under the First Amendment, and violated Title VII. Berry, 447 F.3d at 645. The District Court granted summary judgment for the county department, and the employee appealed. The Ninth Circuit affirmed the judgment. Id.
a. The free speech issues in Berry were decided under a Pickering balancing test.
With respect to the free speech claims, the employee's primary duties were to assist unemployed and underemployed [*11] clients in their transition out of welfare programs. These duties frequently required the employee to conduct client interviews. The department told the employee that he could not talk about religion with clients and the agencies the employees contacted, but that he was permitted to talk about religion with his colleagues. Berry, 447 F.3d at 646. The employee also displayed a Spanish-language Bible on his desk, and hung a sign that read "Happy Birthday Jesus" on the wall of his cubicle. Id. at 647. The department told him to remove the Bible from view of clients, and to remove the word "Jesus" from the sign on his cubicle. Id.
The Berry court applied the Pickering balancing test to uphold the agency's rule forbidding employees to discuss religion with clients: "While it allowed employees to discuss religion among themselves, it avoided the shoals of the Establishment Clause by forbidding them from discussing religion with its clients." Berry, 447 F.3d at 657; see Waters v. Churchill, 511 U.S. 661, 668 (1994) [for a government employee's speech to be protected, "the speech must be on a matter of public [*12] concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees'") (citations omitted)].
The Berry court also applied the Pickering test to uphold the agency's rule restricting employees from prominently displaying religious items: "Similarly, the Department allowed employees to display religious items, except where their viewing by the Department's clients might imply endorsement thus evading the reef of the Establishment Clause." Id. "[T]he Pickering balancing approach applies regardless of the reason an employee believes his or her speech is constitutionally protected," whether as commentary on matters of public concern or whether the employee asserts First Amendment protections for religious speech. Berry, 447 F.3d at 649-50.
The Berry court's application of the balancing test cited as precedent the cases of Peloza (discussed above) and

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Tucker v. State of Cal. Dept. of Educ., 97 F.3d 1204 (9th Cir. 1996). In Tucker, [*13] the public employer provided its employee (Tucker) with orders prohibiting him from discussing religion in the workplace and displaying religious items. Tucker contended on appeal that the orders must pass strict scrutiny "because the government has created a limited purpose public forum in its offices by allowing its employees both to discuss 'public questions when they assemble informally at their desks, drinking fountains, lunch rooms, copy machines, etc.' and to display written materials in and around their offices and cubicles." Id. at 1209.
The Ninth Circuit rejected that argument: "In Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985), the Court stated, '[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.' (emphasis added). Assuming that Tucker and his co-workers talked about whatever they wanted to at work (before the passage of the challenged order), and that they posted all sorts of materials on the walls, that still would not show that the government had intentionally [*14] opened up the workplace for public discourse." Tucker, 97 F.3d at 1209. The Tucker court instead reviewed a public employer's limitations on an employee's religious speech pursuant to the "applicable doctrine, which is found in the case law governing employee speech in the workplace." Id. at 1209-10, citing Pickering.
Consistent with Berry, this Court should utilize the variation on the Pickering balancing test, which the Ninth Circuit uses for speech by an employee in the workplace (regardless of whether the speech consists of words spoken aloud or a display of items constituting speech in the workplace). Johnson's banners were even more prominently displayed than the plaintiff in Berry, because Johnson's banners were not inside the wall of an office cubicle, but were in plain view in his classroom, where they could be seen by all of his students. Moreover, Johnson's banners were very large, and easily could be read from locations in the classroom where students would normally sit. Such speech must be balanced against Poway's right to protect its own interests in avoiding an Establishment clause violation.
b. The forum analysis [*15] in Berry applied only to the use of a conference room for prayer meetings.
The Berry case also shows when a forum analysis would be applicable - and shows that its use would not be suited to this case. In Berry, the employee organized a monthly employee prayer meeting that was to take place an unused conference room in the department's facility. The prayer meetings were voluntary and were held over lunch. Berry, 447 F.3d at 646. The department told M r. Berry that he could not use the conference room for these meetings, because use by a particular group of a "non-public" conference room at the facility would open up the room's use to all groups. Id. at 647.
For this particular complaint, the Berry court relied on a traditional forum analysis, rather than the Pickering balancing test, to resolve the constitutional issues associated with the use of work site premises for prayer meetings applying, inter alia, Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788 (1985). As the Berry court explained, the department's rules "did not prohibit its employees from holding prayer meetings in the common [*16] break room or outside," but closed one particular conference room "to employee social or religious meetings such as might convert the conference room into a public forum." Berry, 447 F.3d at 657, 653 (finding from an analysis of the uses of the conference room it "remains a non-public forum," because "the only permitted use of the room that was not generally associated with the Department's administrative duties was for birthday parties and baby showers"). Berry concluded, applying forum analysis standards, those restrictions on the civil rights of its employees to exercise their religion using a government facility with circumscribed permitted uses "were reasonable, and the Department's reasons for imposing them outweigh any resulting curtailment of Mr. Berry's rights under the First Amendment of the United States Constitution ...." Id.
Here, Johnson is not interested in holding prayer meetings in unused non-public portions of Westview High School or the District Office. Nor does he seek to display his banners inside unused rooms for any portion of time. Simply said, Johnson's classroom is not a facility open to the public to hold meetings or speak during [*17] the school day. Rather, it is only Johnson who wishes to display the banners in his classroom to students and whoever else happens to be inside

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the classroom. That is strictly employee speech, and therefore the Pickering balancing test is more suited to the analysis than the forum analysis applicable to use of public facilities.
5. Mr. Johnson's Banners Are Not "Private" Speech
Johnson also contends that his speech is "private" speech on public grounds, citing Arizona Life Coal., Inc., v. Stanton, 515 F.3d 956, 968 (9th Cir 2008). Doc. 43-2, p. 8. This characterization is in error.
The issue in Arizona Life was whether the State of Arizona violated an advocacy group's First Amendment right to free speech by arbitrarily denying the group's application for a special Arizona organization license plate that would portray its message "Choose Life." Arizona Life, 515 F.3d at 960. The case specifically dealt with the government regulation of private speech in a forum created by the government.
The case does not apply to Johnson's circumstances, because Johnson is not speaking as a private citizen, he is speaking as an employee of the [*18] Poway Unified School District. It is undisputed that Johnson is a math teacher. His job is to educate high school students. Had Johnson not been a teacher, then he would have no right to decorate a classroom. Under the School's policies and practices, teachers, not others, have the right to display items in their respective classrooms, within certain limits. Defs. Exh. "E," Doc. #55-4, pp. 15-17 (Chiment Depo, pp. 57:15-58:3; 65:2-6.) The fact that Johnson's banners were not used for a curricular purpose does not change the fact that they contain speech that can easily be viewed and understood by public school students and others, all of whom could attribute the slogans on the banners to ratification by the School District. Furthermore, if Johnson was not a teacher, then he would not be permitted to display anything in a Poway Unified classroom. In fact, under the California Education Code, if Johnson was not an employee or parent/guardian of a student, he would need permission just to visit a classroom during the school day. Cal. Educ. Code, § 32211, subd. (a). So this case is not about a private citizen speaking in the classroom, it is a about a school employee speaking [*19] to students and others on public school grounds. Accordingly, the forum test used in Arizona Life does not apply.
6. "Substantial Disruption" is Not The Test, As Johnson Suggests.
Johnson also contends that the Defendants cannot prohibit the banners because the banners did not "materially and substantially disrupt the work and discipline of the school." quoting Tinker, supra, 393 U.S. at 513 and Grayned v. City of Rockford, 408 U.S. 104 (1972). Doc. #43-2, p. 8, fn. 6.
There are several problems with Johnson's assertion, not the least of which is that Johnson does not fully articulate the complete test from Tinker. Under Tinker, the actual test is that a student may exercise his right to freedom of expression unless the "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others ...." Tinker, 393 U.S. at p. 513, emphasis added. Johnson's points and authorities left out the last part about invading the rights of others.
Defendants [*20] think that the test in Tinker applies to students, not teacher employees. As Defendants have argued, the Pickering test is the test the Ninth Circuit applies in public employee cases like this one. The Ninth Circuit's use of Pickering does not conflict with Tinker because the Supreme Court has explained that based upon its reading of its prior precedent, the "substantial disruption" test set forth in Tinker is not absolute. Morse v. Frederick, 551 U.S. 393, 405 (2007).
But even if the Tinker test did apply to teachers, Johnson's speech would invade the School's right to maintain its mission without giving the appearance of endorsing its employee's religious expression in violation of the Establishment Clause. And thus, even under Tinker, the Defendants would have the right to remove the banners at issue.
7. Johnson's "Striped" and "Creator" banners cross the line from heralding the national heritage to promotion of Judeo-Christianity, and therefore entangle the School in religious advocation in violation of the

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Establishment Clause.
Johnson appears to have taken the position that any speech taken from a national or historic origin, [*21] even if discussing God or religion, gets First Amendment protection, regardless of how the message is displayed. This is an overly broad view of the law, from the Defendants' perspective.
a. The visual impact of the banners' configuration and text size must be taken into consideration.
Johnson's position disregards the visual impact that speech displayed on banners or posters can have. For example, the words "In God We Trust" are the national motto, and that phrase does not violate the Establishment Clause when displayed on coins or currency. But what if that phrase was displayed in a classroom with the word "God" was emphasized and highlighted -wouldn't that be different? Take for example, a 2' by 7' banner that read:
In GOD we trust
The visual impact is immediate: the phrase in this example has been modified so that the emphasis is on the word "God." An objective viewer could easily conclude that the speaker is accentuating religious aspect of the phrase.
Similarly, Johnson's banners emphasize the religious aspects of historical speech in two ways: (1) on the striped banner, the word God is repeated in each slogan; and (2) in the Creator banner the [*22] word "Creator" is in ALL CAPS and twice the size of the other words in the slogan. This combination places religion over history/patriotism.
It is not a matter of whether the speech is curricular or non-curricular in nature. According to the Supreme Court, "the process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers - and indeed the older students - demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models." Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986). Furthermore, curriculum in schools includes speech and displays which the students, a captive audience, will be subjected to during the school day. See Lee v. York County Sch. Div., 484 F.3d 687, 698 (4th Cir. 2007) [explaining that religious material on classroom bulletin boards were curricular, as opposed to the teacher's own speech, because the material was "constantly present [*23] for review by students in a compulsory classroom setting. As a general proposition, students and parents are likely to regard a teacher's in-class speech as approved and supported by the school, as compared to a teacher's out-of-class statements."].
Johnson's motion paints the Defendants as biased against any religion and any religious words or thoughts. Johnson's characterization simply isn't true. For example, William Chiment, the District's Associate Superintendent for Personnel Services, testified at his deposition that a single poster with the words "God Bless America" as depicted in Exhibit "M" (Chiment Depo. Exhibit 97) would be permitted to be displayed by a teacher in a classroom: "I see it as patriotic, and the overall impact of it is not the repetition of the theme of God. The predominant theme is America. And it's one single banner." Exh. "M," pp. 244:16-245:6. This is a reasonable position for a school administrator to take: the administrator is looking at the totality of the item and making a determination based not just upon the words of the poster, but on the impact and context of the words.
b. The slogans on the banners, viewed together, violate the Establishment [*24] Clause.
Next, formally applying the facts to the Ninth Circuit's balancing test, the scales tip in favor of the School Defendants because, with respect to the Establishment Clause, Johnson's banners violate all three prongs of the Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). First, the banners do not have a secular purpose. Johnson teaches math. The banners are not part of the curriculum. And by Johnson's own admission, the phrases on the banners were chosen not just to promote the nation's heritage, but also to espouse religion over non-religion. Defs.' Exh. "F," p.103:3-22. This is evidenced by the use of the word CREATOR on the "Declaration" banner. The word "CREATOR"

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occupies its own line, is about twice as big as the other words on the banner, and is the only word in ALL CAPS, as if shouting to be noticed. Johnson said that the reason the word CREATOR is bigger is because he wanted to emphasize a supreme being's role in giving man his rights. This emphasis does not have a secular purpose.
Second, the principal and primary effect of the banners advance religion. Each of the five phrases, standing alone, might not run afoul of the First Amendment [*25] due to the historical implications of the phrases (a conclusion that School administrators acknowledge). But when all of the phrases are joined together, they accumulatively de-emphasize the historical aspects of the speech, and instead emphasize the religious aspects of the speech. The secondary religious meaning behind each individual phrase becomes the primary meaning when strung together. In short, when viewed in their totality, the banners' message is less about Nation, and more about God. Thus, the primary effect is to advance the Christian religion. And the District provided with alternative material display that still contained religious historical and patriotic references, but in their original context. As Principal Kastner explained with respect to the provision of this alternative material as opposed to the individual phrases on Johnson's banners: "The issue was never these phrases in isolation, and these phrases were all not only permitted but encouraged. I - he has posters that include all of those phrases that can be put on those walls. It's taking them out of context that was the issue." Kastner Depo., Exh. "N," p. 142:25-143:11. This is a reasonable position taken by [*26] a principal who is sensitive to both sides of the issue. And where speech such as Johnson's is taken out of context to create a new meaning and presentation, this Court should defer to school authorities to make their determination of whether speech is permissible: "[T]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board, rather than with the federal courts." Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 267 (1988) (quoting Bethel School District No. 403 v. Fraser, 478 U.S. 675, 683 (internal citation omitted).
Finally, Johnson's banners foster excessive government entanglement with religion. The Ninth Circuit has said it best with respect to Mr. Johnson: He "is not just any ordinary citizen. He is a teacher. He is one of those especially respected persons chosen to teach in the high school's classroom. He is clothed with the mantle of one who imparts knowledge and wisdom. His expressions of opinion are all the more believable because he is a teacher. The likelihood of high school students equating his views with those of the school is substantial." Peloza, supra, 37 F.3d at 522. [*27] "A teacher appears to speak for the state when he or she teaches; therefore, the department may permissibly restrict such religious advocacy." Tucker v. California State Dept. of Educ., 97 F.3d 1204, 1213 (9th Cir. 1996), citing Peloza, 37 F.3d at 522.
Here, Johnson's banners are both 7 feet by 2 feet with large typeface. Johnson's banners can be easily read by students in the classroom. Any student who does not agree with the notion that God is a supreme being or creator could be intimidated by Johnson's banners.
In the alternative, the Defendants suggest it would also be appropriate to apply the gloss on the Pickering balancing test first discussed in Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006). If this gloss is applied, the scales tip even further in the School's favor. According to Garcetti, the focus should not be on the content of the speech, but on the role the speaker occupied when the speech was made. Id. at 1960. Accordingly, Garcetti held that the First Amendment does not protect employees' "expressions made pursuant to their official duties." Id. Thus, Johnson's First Amendment protections are [*28] substantially outweighed because is only permitted to display items in the classroom because he is a teacher. So by extension, the messages on the banners were displayed as part of his official duties, as they impart information to students during the school day.
8. Even using a Hazelwood forum analysis, the Defendants still should prevail.
As a fallback position, in the event that this Court were to find that the Berry/Pickering balancing test does not apply, and that Johnson's classroom was a limited public forum under the Hazelwood analysis, the School would still be within its rights to remove the banners. Under that legal analysis, the Defendants may still prevail if they show that the banners constitute an Establishment Clause violation. This is because avoiding endorsement of religion is a constitutional mandate and therefore a compelling interest. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112-13

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(2001) (citing Widmar v. Vincent, 454 U.S. 263, 271 (1981)).
To that end, the Ninth Circuit has held that schools may refuse to allow religious speech in a limited public forum where it is necessary to avoid an Establishment [*29] Clause violation. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir.2000). In Cole, two students sued their school district, claiming that the district violated their freedom of speech by refusing to allow one to give a sectarian, proselytizing valedictory speech and the other to give a sectarian invocation at their graduation. Cole, 228 F.3d at 1095. The court, in deciding whether the individual school officials enjoyed qualified immunity, found that the students' damage claims failed because the officials' actions were reasonably taken to avoid violating the Establishment Clause of the First Amendment. Id. In supporting its decision in favor of the school officials, the Cole court explained: "We conclude the District officials did not violate the students' freedom of speech. Even assuming the Oroville graduation ceremony was a public or limited public forum, the District's refusal to allow the students to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause under the principles applied in Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), [*30] and Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). [Citiations.]" Cole, 228 F.3d at 1101.
In cases decided after Cole, the Ninth Circuit has continued to endorse the concept that the government can distinguish and exclude proselytizing religious speech to preserve the purpose for a limited forum. See, e.g., Prince v. Jacoby, 303 F.3d 1074, 1086-87 (9th Cir.2002) (finding that while student religious group must be given equal access to school's public address system to announce its activities, the group may be barred from doing so to "pray and proselytize"); and Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 980 (9th Cir.2003) (prohibiting proselytizing in high school graduation speech)
Moreover, under the Ninth Circuit's interpretation of Hazelwood, schools may limit speech that bears the imprimatur of the school when the speech may place the school on one side of a controversial issue: "A school's decision not to promote or sponsor speech that is unsuitable for immature audiences, or which might place it on one side of a controversial issue, is a judgment call which [*31] Hazelwood reposes in the discretion of school officials and which is afforded substantial deference. We therefore conclude that controlling the content of school-sponsored publications so as to maintain the appearance of neutrality on a controversial issue is within the reserved mission of the [] District." Planned Parenthood v. Clark County School District, 941 F.2d 817, 829 (9th Cir.1991) (en banc), internal footnote omitted. Should this Court apply Hazelwood to teacher speech (rather than student speech), then the District meets this test.
First, there can be little debate that the banners in Johnson's classroom might be seen to bear the imprimatur of the school. Students have been in plain view of the banners as a captive audience for 25 years. The fact that the banners were hung inside the classroom leaves no doubt that others might view them as having the stamp of school approval, even if the speech is Johnson's speech. Certainly when a 7 foot by 2 foot banner is hanging in direct sight of a captive audience of students, an idea is being imparted, and this communication falls within the purview of Poway Board Policy 3.11. And if speech falls within [*32] the purview of a particular policy, then the public may assume that the District made a decision with respect to the speech under that policy.
Second, there is a legitimate pedagogical reason for the banners' removal: the District is ensuring that as an entity, it maintains its neutrality on a controversial issue and does not run afoul of the Establishment Clause.
Finally, Johnson suggests that it is unfair to him that other issues be permitted by the school district to be on display, such as gay rights issues, for example. Johnson does not go into detail in his arguments as to what aspect of tolerance of civil rights invades his constitutional rights as a teacher. But to clarify, the School has an "affirmative obligation" under the California Education code "to combat racism, sexism, and other forms of bias" including sexual orientation. Cal. Educ. Code, § 201, subd. (b) and § 220. "An arm of local government - such as a school board - may decide not only to talk about gay and lesbian awareness and tolerance in general, but also to advocate such tolerance if it so decides, and restrict the contrary speech of one of its representatives." Downs v. Los Angeles Unified School Dist.,

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228 F.3d 1003, 1014 (9th Cir. 2000). [*33] So it is unknown to Defendants how tolerance material posted in a classroom is violative of Johnson's First Amendment rights.
9. The law is the same under the California constitution; the School may regulate teacher speech where the teacher is advocating a controversial viewpoint.
Turning to California law concerning free speech, "Article 1, section 2 of the California Constitution provides independent protection for free speech which in certain contexts exceeds the protection provided by the First Amendment to the United States Constitution." California Teachers Assn. v. Governing Board, 45 Cal.App.4th 1383, 1391 (1996). But in the context of the classroom activities of teachers, the state constitutional protection is identical to the federal protection: "We find the federal authorities which discuss First Amendment principles in the fairly unique context of school regulation of curricular activities accurately weigh the competing interests of school administrators, teachers and students. Id.
So, like his First Amendment claim, Johnson's Fourth Claim for violation of free speech under the California constitution also fails. This conclusion is consistent [*34] with the California Teachers Assn. case, which concluded that "when public school teachers and administrators are teaching students, they act with the imprimatur of the school district which employs them and ultimately with the imprimatur of the state which compels students to attend their classes." Id. at 1390. Accordingly, the court held that with respect to teacher speech inside the classroom, "school authorities retain the power to dissociate themselves from political controversy by prohibiting their employees from engaging in political advocacy in instructional settings." Id. at 1391. Plaintiff's motion should be denied as to this state claim also.
B. Plaintiff's Second and Sixth Claims for Violation of The Establishment Clause Fail Because The District's Policies Do Not Establish Any Religion and Are Neutral.
Ironically, while promoting religion himself, Johnson claims that it actually the Defendants that have violated the Establishment Clause of both the United States and California constitutions. Johnson's assertions are far afield.
There are three tests used in the context of a school by the U.S. Supreme Court to determine [*35] whether the Establishment Clause has been violated. Santa Fe Independent School District v. Doe, 530 U.S. 290, 147 L.Ed.2d 295, 120 S.Ct. 2266 (2000).
The Lemon test, discussed earlier, states that there is no violation under these circumstances: (1) the government's action must have a secular purpose; (2) its principal and primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). This test is also used by the California appellate courts in analyzing Establishment Clause claims under state law. See Catholic Charities of Sacramento, Inc. v. Superior Ct., 32 Cal.4th 527, 546 (Cal. 2004) (cert. denied 125 S.Ct. 53).
The "endorsement" test collapses the first two prongs of the Lemon test, and "captures the essential command of the Establishment Clause, namely, that government must not make a person's religious beliefs relevant to his or her standing in the political community by conveying a message that religion or a particular religious belief is favored or preferred.'" County of Allegheny v. ACLU, 492 U.S. 573, 627 (1989) [*36] (quoting Wallace v. Jaffree, 472 U.S. 38, 69 (O'Connor, J. concurring in judgment)).
Finally, the coercion test states that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so." Lee v. Weisman, 505 U.S. 577, 587 (1992).
Here, the District's decision to have Johnson remove his banners from display in his classroom had a secular purpose. The District's Board Policies and Regulations require that teachers refrain from espousing a single viewpoint

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when teaching controversial issues, and that teachers be inclusive of various points of view. See Defendants' Exhs. "C" and "D" in support of their Motion for Summary Judgment. Pursuant to the policies and regulation, District restricted the display of Johnson's banners because the messages on the banners were partisan and sectarian in nature. The purpose of the removal was so that one viewpoint would not be promoted over another, the opposite of what Johnson is claiming with respect to his Establishment Clause claim. Furthermore, [*37] there was no entanglement with religion here because the Defendants' actions do not deprive Johnson of providing his opinion concerning religion outside of the school gates, or forbidding him keeping the phrases on the banners in a desk drawer so that he can view them daily (or even a very small version not in plain view of the students), and because the goal of the Defendants was to not advance any one particular religion.
The Defendants' actions also do not violate the endorsement test. The Defendants' actions in having Johnson remove his banners was for the purpose of preventing favoritism or preference for one particular religion or religious belief. Similarly, with respect to the coercion test, the Defendants have attempted to remove the spectre of coercing students to adhere to a particular sectarian practice. Contrary to Johnson's contentions, the Defendants have tried to uphold the Establishment Clause, not violate it.
California state law also uses the Lemon test to determine whether a government act violates the Establishment Clause of Article I, section 4. See DiLoreto v. Board of Education, 74 Cal.App.4th 267, 275-276 (1999). So Defendants' actions [*38] do not violate the Establishment Clause of Article I, § 4 of California Constitution either.
In short, the actions of the school officials in this case were consistent with the requirements under the Lemon test and therefore Johnson's claims for violations of the Establishment Clauses of both the Federal and State Constitutions fail. Johnson's motion should be denied.
C. Johnson's Third Claim for Violation of the Equal Protection Clause Fails Because There Are No Facts Indicating Johnson Was Treated Differently From Similarly-Situated Employees.
To establish a claim under the Equal Protection Clause, Johnson must show that Defendants' actions in following District policy resulted in the him receiving disparate treatment compared to other similarly-situated employees. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Equal protection claims require strict scrutiny if the legislation discriminates against a suspect class or impinges upon a fundamental right. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The Equal Protection Clause may give rise to a cause of action even if the plaintiff does not allege membership [*39] in a class or group. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). However, this type of equal protection challenge is evaluated under a rational-basis test to determine whether the legislation at issue is irrational or wholly arbitrary. Conti v. City of Fremont, 919 F.2d 1385, 1389 (9th Cir.1990). In equal protection claims brought by a "class of one," the plaintiff must allege that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336 (1989).
Johnson argues based upon his position that the classroom is a forum that the District has opened for expression. Plaintiff's P&As, Doc. #43-2, p. 15. But, again, the test for public employees in the workplace is whether their speech constitutes a violation of the Establishment Clause such that the public employer may remove such speech to avoid a violation. The School had the right to remove Johnson's banners, and give him alternative [*40] material containing the slogans on the banners, but in their historical/national context. So to the extent that other teachers within the School have posters or other items on their walls, such facts are irrelevant to the analysis.
Defendants actions did not impinge on any fundamental right of Johnson. He is free to hold his own religious beliefs. But his First Amendment rights to display his banners are outweighed by the District's interest in preventing an Establishment Clause violation, and the banners, as they were displayed, violate the Establishment Clause.
The School is not trying to eradicate the notion of God or religion from its classroom, as Johnson has intimated in

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his complaint. Rather, the opposite is true. Johnson was provided materials by the School which contained some of the same phrases on his banner, but in their historical national context. To that end, that he could have pictures of coinage or money containing the phrase "In God We Trust." Defs.' Exh. K (Doc. 55-5, Exh. pp. 78-80). The School offered Johnson the option of displaying a poster containing the text of the Declaration of Independence, which includes the words "creator" and "God." Id. The School [*41] had no problem with Johnson displaying the "Pledge of Allegiance" in its entirety, including the line "one nation under God." Id. He could also display all of the lyrics to the song "God Bless America." These items, if posted in their context, would alleviate any Establishment Clause entanglement. Johnson, however, refused to display these items in lieu of his banner. Defs.' Exh. "F," Doc. 55-4, pp. 47-48 (Johnson Depo., pp. 128:25-130:4).
Johnson's argues that Defendants violated the equal protection clause "when they ordered his banners removed based on the content and viewpoint of his speech, while permitting other teachers to continue their speech in the same forum unfettered." Doc. 43-2, p. 15. But Johnson ignores that all teachers are operating under the District policies and practices. The School's Administrative Procedure, AP 3.11.2, that contains a section concerning the "Responsibilities of Teachers." Defendants' Exh. "D," Doc. #55-4, pp. 13-15. Those responsibilities include refrain[ing] from using classroom teacher influence to promote partisan or sectarian viewpoints. So if the School believes that there are teachers promoting sectarian religious viewpoints, it [*42] may restrict that speech.
Johnson's separate statement of facts point to a teacher named Lori Brickley, who has what apparently are known as "Tibetan prayer flags" displayed in her classroom. The flags, like Johnson's banners, are personal items in nature, but Brickley and Johnson have not been treated differently. Unlike Johnson's banners, Brickley's flags do not violate the Establishment clause because they have a secular purpose, do not advance religion over non-religion, and do not excessively entangle the District with the support of a particular religion. Brickley's prayer flags are in a language, Sanskrit, that no person at the school (student or otherwise) has been able to read. Plaintiff's Exh. 5, Doc. #54-4, pp. 224-225 (Brickley Depo., pp. 88:17-89:6). The prayer flags are decorative in nature, and an interesting artifact in that they are sold at the bottom of Mount Everest and placed on top of the mountain when climbers reach the top, as Brickley informs her students who ask. Id. Brickley Depo., pp. 87:20- 90:6; Defs. Exh. "E," Brickley herself maintains that religion does not belong in the classroom (Plaintiff's Exh. 5, Doc. #54-4, p. 228 (depo at 118:6-8)), so she [*43] is hardly displaying the banners for the purpose of promoting a religion. The banners have the secular purpose of motivating her students to achieve lofty goals, like mountain climbers trying to reach Everest's summit. Plaintiff's Exh. 5, Doc. #54-4, p. 225 (Brickley Depo., p. 89:7-22). There is a small figure on some flags that appears to be Buddhist in nature, but it is not prominent (Defs. Exh. "L"). And like the words God and Creator in a full display of text from the Declaration of Independence (Defs. Exh. "K"), the religious significance is far lesser than the whole of what it represents.
If the alternative materials the School provided to Johns on (which he chose not to display) do not violate the Establishment Clause or School policy, then neither do the prayer flags in Brickley's classroom. Johnson is being treated the same with respect to display of speech touching on religion as any other teacher.
Johnson also suggests in his separate statement of facts that there is a "controversial" poster of John Lennon in a classroom containing lyrics to the song "Imagine." See poster at Defs. Exh. "O." Johnson's contention that the song is "controversial" lacks foundation and should [*44] be ignored. Mr. Collins, the School's Deputy Superintendent, testified that he is Christian and was not aware of any controversy surrounding that song not did he find it offensive; he viewed the song to be about "tolerance." Plaintiff's Exh. "2," p. 126 (Collins Depo. p. 90:19-91:13). Furthermore, Johnson did not submit any evidence to show whether the poster was teacher speech (as opposed to a student project) or the context that the poster was presented. Without such evidence, Johnson cannot say that he was treated different from other teachers based on this poster.
Finally, the District's policies have a legitimate state interest in ensuring that all points of view, and not one single viewpoint, is heard by the students in the classroom. The District felt that Johnson's banners did not comply with the District's policy of inclusion of all viewpoints, and had him remove the banners. The District's decision was therefore

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narrowly tailored to achieve an important government interest. For the above reasons, Johnson's Equal Protection claim fails as a matter of law.
D. Johnson's Fifth Claim For Violation of the California's "No Preference" Clause Fails Because The Defendants [*45] Did Not Show A Preference For Religion; Rather They Wanted To Keep Their Classrooms Religion-Neutral.
California's No Preference Clause reads: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed." Cal. Const. art. I, § 4. "California courts have interpreted the No Preference Clause to require that the government neither prefer one religion over another nor appear to act preferentially." Brown v. Woodland Joint Unified School Dist., 27 F.3d 1373, 1384 (9th Cir. 1994), citing Sands v. Morongo Unif. Sch. Dist., 53 Cal.3d 863, 872-878 (1991), cert. denied, 505 U.S. 1218 (1992).
Here, there are no facts to suggest that the Defendants removed Johnson's banners with an eye to advancing one religion over another. On the contrary, the Defendants were concerned that Johnson himself was one trying to advance his religion over non-religion and over other religions by hanging his banners. The intent of the school was to maintain neutrality concerning religion. Accordingly, Johnson's motion should be denied as to this claim also.
E. The Damages Claim Against The Individual Defendants Should [*46] Be Denied Due To Their Qualified Immunity.
Johnson also seeks nominal damages against the Individual Defendants by way of his motion. Doc. #43-2, p. 22. But Johnson is not entitled to damages claim because the Individual Defendants enjoy qualified immunity.
"When governmental officials assert the defense of qualified immunity to an action under 42 U.S.C. § 1983, a court evaluating the defense must first determine whether the plaintiff has alleged the deprivation of a constitutional right and, if so, then determine whether the right was clearly established at the time of the alleged violation." Cole v. Oroville Union High School Dist., 228 F.3d 1092, 1101 (9th Cir. 2000). Here, there was no constitutional violation. But even if there was, the current state of the law gave Defendants no reason to believe that their decision to remove materials from Johnson's classroom was unconstitutional, especially in light of the Berry and Peloza cases cited infra. Therefore, the individual defendants are entitled to qualified immunity against Johnson's damages claims in this case.
IV. CONCLUSION
The School District provides services [*47] to students who hold many different beliefs and come from many different backgrounds. Respect for all of those different beliefs is at the core of the School District's purpose. While the School District tries to ensure that students will be exposed to different ideas and beliefs, and hopes they may grow and prosper by that exposure, the School must not pick any particular belief to endorse or to recommend. When a teacher employed by the District - picks one particular belief to endorse and support, a part of the purpose of the School District is thwarted.
By law, the School District must not endorse any particular religious belief, or oppose any particular belief. A public school must be neutral. Obviously, a School District may only speak through its employees, and Mr. Johnson is one of those valued and respected employees who speaks for the District. If he is permitted to endorse one particular belief - by signs placed prominently in his classroom - the duty of the School District is breached.
If Mr. Johnson is permitted to keep his banners up in his classroom, then a Muslim teacher, or an atheist teacher, or a teacher of any other belief, has the same right to display banners [*48] promoting his belief. If that were to occur, then the improper entanglement of the school in religious issues would be unmistakable and impact on the District's purpose to respect the beliefs of all of its students would be impaired.
But the evidence is undisputed. The visual impact of these banners does not communicate patriotism, nor a

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historical message. The visual impact of the banners communicates the teacher's Judeo-Christian belief. It is also undisputed that the School Administrators reasonably believed that the banners entangled the school in the endorsement of religious ideas.
Upon those undisputed facts, the Court should apply the Ninth Circuit rule - applicable to school teacher's speech in the classroom, as expressed in Peloza - and determine that the School District's restriction on the teacher's speech was permissible because the School District's right to be free from an Establishment Clause violation trumped the teacher's speech rights. Under that analysis the School District had a duty to ask Mr. Johnson to take down the banners to protect its neutrality on this controversial issue and to protect its students right to be free from government endorsement of Mr. [*49] Johnson's religious belief.
The Court is respectfully requested to deny Plaintiffs motion for summary judgment, and to grant the Defendants' motion for summary judgment.
DATED: September 28, 2009
Respectfully submitted,
STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation
By: /s/ Paul V. Carelli IV Daniel R. Shinoff Jack M. Sleeth, Jr. Paul V. Carelli IV
Attorneys for Defendants, POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM; LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; PENNY RANFTLE; DR. DONALD A. PHILLIPS; WILLIAM R. CHIMENT; and DAWN KASTNER Email Address: pcarelli@stutzartiano.com
DEFENDANTS' SUPPLEMENTAL EXHIBITS IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [FRCP 56]
Defendants hereby submit the following supplemental exhibits "M" through "O" in support of the Defendants' arguments in opposition to Plaintiff's motion for summary judgment. These exhibits are lettered and paginated as a continuance to the exhibits previously submitted by Defendants, and so start with Exhibit "M" page 85.
Exhibit "M": Poster reading "God Bless America" (p. 86) and additional excerpts from the certified Deposition [*50] of William Chiment taken on May 14, 2009 (p. 87-88)
Exhibit "N": Additional excerpts from the condensed certified Deposition of Dawn Kastner taken on June 2, 2009 (pp. 90-91)
Exhibit "O": Poster of John Lennon (deposition exhibit 97) (p. 93).
DATED: September 28, 2009

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STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation

By: /s/ Paul V. Carelli, IV Daniel R. Shinoff Jack M. Sleeth, Jr. Paul V. Carelli, IV

Attorneys for Defendants POWAY UNIFIED SCHOOL DISTRICT, JEFF MANGUM, LINDA VANDERVEEN, PENNY RANFTLE, STEVE MCMILLAN, ANDY PATAPOW, DONALD PHILLIPS, WILLIAM CHIMENT, and DAWN KASTNER

Email Address: pcarelli@stutzartiano.com
SUPPLEMENTAL DECLARATION OF PAUL V. CARELLI IV IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [FRCP 56]

I, PAUL V. CARELLI, IV, hereby declare:
1. I am an attorney at law duly licensed to practice law in the State of California and am a member in the law firm of Stutz Artiano Shinoff & Holtz, A.P.C., attorneys of record for Defendants, POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; PENNY RANFTLE; DR. DONALD A. PHILLIPS; WILLIAM [*51] R. CHIMENT; and DAWN KASTNER in the above-entitled U.S. District Court lawsuit. If called upon as a witness, I would competently testify to the following:
2. The exhibits attached to the Defendants' Supplemental Exhibits in support of the Defendants' Opposition to Motion for Summary Judgment are true and correct copies of the originals as follows:

Exhibit "M": Poster reading "God Bless America" (p. 86) and additional excerpts from the certified Deposition of William Chiment taken on May 14, 2009 (p. 87-88)

Exhibit "N": Additional excerpts from the condensed certified Deposition of Dawn Kastner taken on June 2, 2009 (pp. 90-91)

Exhibit "O": Poster of John Lennon (deposition exhibit 97) (p. 93).
I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct to my personal knowledge.
This declaration is executed on the 28th day of September, 2009, at Temecula, California.

/s/ Paul V. Carelli IV

PAUL V. CARELLI, IV

DEFENDANTS' RESPONSES AND OBJECTIONS TO PLAINTIFF'S SEPARATE STATEMENT OF FACTS

UNDISPUTED MATERIAL FACTS

OPPOSING PARTY'S RESPONSE

AND SUPPORTING EVIDENCE

SUPPORTING EVIDENCE AND

1. Plaintiff Bradley Johnson (hereinafter

1. Undisputed.

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"Plaintiff") is a public school teacher who has been teaching in Defendant Poway Unified School District (hereinafter "School District") for more than 30 years. (Johnson Decl. at P 3 at Ex. 1).
2. Plaintiff is a high school math teacher in the School District. (Johnson Decl. at P 3 at Ex. 1).
3. Plaintiff has taught math at Mt. Carmel High School, Rancho Bernardo High School, and Westview High School, which are all high schools within the School District. (Johnson Decl. at P 3 at Ex. 1).
4. Plaintiff presently teaches math at Westview High School and has been doing so since 2003. (Johnson Decl. at P 3 at Ex. 1).
5. Mr. John Collins, Deputy Superintendent for the School District, testified on behalf of the School District pursuant to Fed. R. Civ. P. 30(b)(6) as to certain matters set forth in the deposition notice. (Collins Dep. at 12, Dep. Exs. 1, 2 at Ex. 2).
6. Defendant William R. Chiment, Associate Superintendent for the School District, testified on behalf of the School District pursuant to Fed. R. Civ. P. 30(b)(6) as to certain matters set forth in the deposition notice. (Chiment Dep. at 16-17, Dep. Ex. 31 at Ex. 3).
7. Defendants Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, and Penny Ranftle were at all relevant times members of the Board of Education for the School District. (Compl. at

2. Undisputed. 3. Undisputed. 4. Undisputed. 5. Undisputed.
6. Undisputed.
7. Undisputed.

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PP 8-12 (Doc. No. 17); Answer at 2 (Doc. No. 26); Collins Dep. at 16 at Ex. 2).
8. The Board of Education for the School District is responsible for adopting the policies of the School District. (Compl. at P 8 (Doc. No. 17); Answer at 2 (Doc. No. 26)).
9. The Board of Education for the School District approved of the School District's decision to order Plaintiff to remove his banners. (Chiment Dep. at 138 at Ex. 3).
10. Defendant Dr. Donald A. Phillips was at all relevant times the Superintendent of the School District. (Compl. at P 13 (Doc. No. 17); Answer at 2 (Doc. No. 26); Collins Dep. at 17 at Ex. 2).
11. As the Superintendent of the School District, Defendant Phillips is partially responsible for creating and implementing the policies of the School District. (Compl. at P 13 (Doc. No. 17); Answer at 2 (Doc. No. 26)).
12. Defendant Phillips approved of the School District's decision to order Plaintiff to remove his banners. (Chiment Dep. at 137 at Ex. 3).
13. Defendant Chiment was at all relevant times Assistant/Associate Superintendent of the School District. (Compl. at P 14 (Doc. No. 17); Answer at 2 (Doc. No. 26); Chiment Dep. at 20 at Ex. 3).
14. As Assistant/Associate Superintendent, Defendant Chiment is partially responsible for creating and implementing the policies of the

8. Undisputed. 9. Undisputed. 10. Undisputed. 11. Undisputed. 12. Undisputed 13. Undisputed. 14. Undisputed.

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School District. (Compl. at P 14 (Doc. No. 17); Answer at 2 (Doc. No. 26)).
15. Defendant Chiment approved of the School District's decision to order Plaintiff to remove his banners. (Chiment Dep. at 30-31, 130, 132, 137, Dep. Ex. 6 at Ex. 3).
16. Defendant Dawn Kastner was at all relevant times the Principal of Westview High School, which is one of the high schools in the School District. (Compl. at P 15 (Doc. No. 17); Answer at 2 (Doc. No. 26); Kastner Dep. at 10-12 at Ex. 4).
17. As the Principal of Westview High School, Defendant Kastner is partially responsible for implementing the policies of the School District. (Compl. at P 15 (Doc. No. 17); Answer at 2 (Doc. No. 26)).
18. Defendant Kastner approved of the School District's decision to order Plaintiff to remove his banners. (Kastner Dep. at 101-02, 172 at Ex. 4).
19. Plaintiff has a strong reputation as a math teacher in the School District; he continues to be one of the highest rated math teachers at Westview High School. (Johnson Decl. at PP 4, 36; Chiment Dep. at 24-25 at Ex. 3; Kastner Dep. at 33 at Ex. 4).

15. Undisputed.
16. Undisputed.
17. Undisputed.
18. Objection: Mistates Kastner's testimony. Kastner testified that she agreed with the decision, not that she approved it. She did not make the decision to remove the banners. See Defendants' Exh. "D." 19. Objection: Relevance. Without waiving the objection, the fact is undisputed.

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20. For approximately 25 years, Plaintiff had continuously displayed on his classroom walls various banners that contained historical and patriotic phrases. (Johnson Decl. at PP 5, 17-21, Ex. B at Ex. 1).
21. During these 25 years, Plaintiff displayed his banners during the relevant time periods at Mt. Carmel High School, Rancho Bernardo High School, and Westview High School. (Johnson Decl. at PP 3, 5 at Ex. 1).
22. Plaintiff had the banners made to order by a private company and purchased them with his personal funds. (Johnson Decl. at P 5 at Ex. 1).
23. Plaintiff's banners do not belong to the School District; they are his personal items. (Johnson Decl. at PP 5, 33, 34, 37 at Ex. 1; Chiment Dep. at 34-36 at Ex. 3).

20. Objection: Vague and ambiguous as to which "various" banners Plaintiff is referring. Without waiving the objection, it is undisputed that Plaintiff has displayed a banner similar to the striped banner depicted in Exh. B, Exh. 1 for approximately 25 years.
21. Objection: Vague and ambiguous as to which banners Plaintiff is referring, other than the "striped" banner. It is undisputed that the striped banner has been displayed for 25 years. Defs.' Exh. "F" Johnson Depo., pp. 78:20-79:24.
22. Objection: Vague and ambiguous as to which banners Plaintiff is referring. To the extent that Plaintiff is referring to the two banners at issue in the First Amended Complaint, it is undisputed.
23. Undisputed.

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24. Teachers in the School District are permitted to display in their classrooms personal items that are not related to the curriculum. (Johnson Decl. at PP 9-16, Exs. A, C at Ex. 1; Collins Dep. at 94 at Ex. 2).
25. The classrooms in which Plaintiff's banners were displayed over the years were assigned to Plaintiff; they were his classrooms for "homeroom" and academic classes. They were also the classrooms he used for non-curricular and extra-curricular activities. (Johnson Decl. at P 7 at Ex. 1).
26. Plaintiff's banners were not used as part of his math curriculum, they were not part of any aspect of his math curriculum, they were not used as part of any of his extracurricular activities, students were not studying Plaintiff's banners in his classes, and students were not discussing Plaintiff's banners in his classes. (Johnson Decl. at PP 16, 36 at Ex. 1; Chiment Dep. at 93-95 at Ex. 3).

24. Objection: Calls for legal conclusion with respect to "curriculum." Without waiving the objection, the fact is disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
25. Undisputed.
26. Objection: Calls for legal conclusion as to what is the "Curriculum" and lacks foundation and calls for speculation that "students were not studying Plaintiff's banners in his classes, and students were not discussing Plaintiff's banners in his classes." Without waiving these

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27. Plaintiff's banners were not part of the curriculum. (Johnson Decl. at PP 16, 36 at Ex. 1; Collins Dep. at 94 at Ex. 2; Chiment Dep. at 93-95 at Ex. 3).
28. Prior to the School District's decision to order Plaintiff to remove his banners in 2007, neither the School District nor its administrators made any complaints to Plaintiff regarding his banners until Defendant Kastner complained in the Fall of 2006. (Johnson Decl. at PP 5, 33, 34, 37 at Ex. 1; Chiment Dep. at 34-36 at Ex. 3).
29. Prior to the School District's decision to order Plaintiff to remove his banners in 2007, the School District did not receive any complaints about Plaintiff's banners from students, faculty, teachers, parents, or School Board members until Defendant Kastner complained in the Fall of 2006. (Johnson Decl. at PP 5, 33, 34, 37 at Ex. 1; Chiment Dep. at 34-36 at Ex. 3). room. Defs. Exh. "G" Kastner Depo, p. 37:15-38:14.
30. During his first two years as a probationary teacher, Plaintiff was evaluated 3 times each

objections, it is undisputed that the banners at issue in this case were not used to teach math, and they were not used as part of any of his extracurricular activities. 27. Objection: Calls for legal conclusion.
28. Undisputed.
29. Disputed. Early in Kastner's tenure as principal at Westview High School(sometime in Fall 2006), Mr. Subbiah, a Westview teacher, raised a concern with Kastner about why Johnson was permitted to have those signs in his
30. Objection: Relevance, lacks foundation and calls

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year. As a tenured teacher, Plaintiff is evaluated twice a year, every other year by the School District. Typically, the evaluation is performed by an assistant principal. As part of the evaluation, the administrator observes Plaintiff teaching in his classroom and evaluates whether or not his teaching and his classroom comport with School District standards and policies. (Johnson Decl. at P 34 at Ex. 1).
31. None of Plaintiff's official evaluations over a 30 plus year period ever indicated that his banners were impermissible, nor did any of Plaintiff's evaluators ever inform him that his banners were impermissible or that they disrupted or detracted from Plaintiff's teaching or the students' learning in any way. (Johnson Decl. at P 34 at Ex. 1).
32. Plaintiff has discretion and control over the non-curricular messages he displays on his classroom walls. (Johnson Decl. at P 8 at Ex. 1; Collins Dep. at 42-43, 57 at Ex. 2; Chiment Dep. at 64-65, 91, 134, Dep. Ex. 6 at Ex. 3).
33. No other School District teacher is

for speculation.
31. Undisputed.
32. Objection: Calls for legal conclusion as to the term "curricular." Without waiving the objection, the fact is disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6. 33. Undisputed.

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permitted to display materials on Plaintiff's classroom walls without Plaintiff's permission. (Johnson Decl. at P 8 at Ex. 1; Collins Dep. at 42-43, 57 at Ex. 2; Chiment Dep. at 64-65, 91, 134 at Ex. 3).
34. The School District does not direct the teachers' non-curricular displays; it is up to the individual teacher. (Johnson Decl. at P 8 at Ex. 1; Chiment Dep. at 134, Dep. Ex. 6 at Ex. 3).
35. Pursuant to School District policy, practice, and/or custom, teachers are permitted to display in their classrooms and on their classroom walls various non-curricular messages and other items that reflect the individual teacher's personality, opinions, and values regarding a wide range of interests and subject matter. (Johnson Decl. at PP 9, 11-15, Ex. A at Ex. 1; Collins Dep. at 38, 39, 41-42 at Ex. 2; Chiment Dep. at 57-58, 61-62, 82, 128-29, 273-74 (admitting, "In a limited way we open the walls [to expression by teachers]"); Kastner Dep. at 23-24, 67 at Ex. 4).
36. School District teachers are permitted to display non-curricular items in their classrooms that contain messages that express the personal views, interests, or opinions of the individual teacher regarding various patriotic, political, social, historical, or other similar concerns.

34. Disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
35. Disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6..
36. Disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own

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(Johnson Decl. at PP 9, 11-15, Ex. A at Ex. 1; Collins Dep. at 38, 39, 41-42 at Ex. 2; Chiment Dep. at 57-58, 61-62, 82, 128-29, 273-74 (admitting, "In a limited way we open the walls [to expression by teachers]"); Kastner Dep. at 23-24, 67 at Ex. 4).
37. Permissible subject matter for non-curricular teacher displays in the classrooms includes, among others, the following: a. Foundations of our Nation; b. Patriotic messages; c. Inspirational messages; d. Historical messages; and e. Slogans that are praiseworthy of our Nation. (Johnson Decl. at PP 11-15, 38 at Ex. 1; Collins Dep. at 38-40, 56, 155-56 at Ex. 2; Chiment Dep. at 45, 84-85, 135-36, 141, 215-17, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 45 at Ex. 4).
38. The School District permits teachers to display non-curricular items that contain partial quotes from the Declaration of Independence. (Collins Dep. at 148-50 at Ex. 2; Chiment Dep. at 216-17 at Ex. 3; Kastner Dep. at 45 at Ex. 4).

policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
37. Disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
38. Objection: Calls for legal conclusion as to the term "curricular." Without waiving the objection, disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.

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39. The School District does not object to posters, banners, or other such displays by teachers that express certain non-curricular messages regarding the following subject matter: a. Global warming (Chiment Dep. at 84, 223-24 at Ex. 3); b. Gay rights (Collins Dep. at 79-82, 85-86, 88-89 at Ex. 2; Brickley Dep. at 58-64, 72-73, 112-19 at Ex. 5); c. Environmental issues (Collins Dep. at 161-62 at Ex. 2; Chiment Dep. at 84, 224-27 at Ex. 3; Brickley Dep. at 109-10 at Ex. 5); d. Historic religious leaders such as Gandhi, the Dali Lama, Martin Luther King, and Malcolm X (Collins Dep. at 150-51 at Ex. 2; Chiment Dep. at 85, 209 at Ex. 3); e. Rock bands or musicians (Collins Dep. at 152-54 at Ex. 2; Chiment Dep. at 211-15 at Ex. 3); f. Movies (Collins Dep. at 166-68 at Ex. 2; Chiment Dep. at 234-35 at Ex. 3); g. Anti-war/anti-military/peace issues (Chiment Dep. at 195-96, 199, 201-02 at Ex. 3; Brickley Dep. at 84-86 at Ex. 5); h. Pro-military issues (Chiment Dep. at 201 at Ex. 3); and i. Sports (Collins Dep. at 162-63 at Ex. 2; Chiment Dep. at 230-31 at Ex. 3).
40. As a direct result of this School District policy, practice, and/or custom, the classroom walls serve as an expressive vehicle for teachers to convey non-curricular messages. (Johnson Decl. at P 9 at Ex. 1; Chiment Dep. at 273-74 at

39. Objection: Calls for legal conclusion as to the term "curricular." Also these items are irrelevant, lack foundation, and are speculative as to their classroom use. Without waiving these objection, disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
40. Objection: "Calls for legal conclusion." Without waiving the objection, disputed to the extent that there are limits on what personal items

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Ex. 3).
41. As a direct result of this School District policy, practice, and/or custom, the School District created a forum for non-curricular teacher speech. (Johnson Decl. at PP 9, 11-15 at Ex. 1; Collins Dep. at 38, 39, 41-42 at Ex. 2; Chiment Dep. at 57-58, 61-62, 82, 128-29, 273-74 (admitting, "In a limited way we open the walls [to expression by teachers]").
42. As a result of the School District's policy, practice, and/or custom of permitting teachers to display items, including personal, non-curricular items, in their classrooms, School District teachers have displayed and continue to display in their classrooms and on their classroom walls the following: a. Posters promoting various rock bands and musicians, including Nirvana, Bruce Springsteen and the E Street Band, Bob Dylan, and The Beatles (Dep. Exs. 52, 53, 54, 55, 56); b. A poster with the lyrics to the song

teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
41. Objection: "Calls for legal conclusion." Without waiving the objection, disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
42. Objection: Calls for legal conclusion as to the term "curricular." Also these items are irrelevant, lack foundation, and are speculative as to their classroom use. Without waiving these objection, disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and

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Imagine by John Lennon (Dep. Ex. 20); c. Posters promoting various professional athletes (Dep. Exs. 76, 80, 149); d. Posters, flags, and banners promoting various professional sports teams (Dep. Exs. 74, 75, 77, 78, 79); e. Tibetan (Buddhist) prayer flags, including a flag with the image of Buddha (Dep. Exs. 24, 25, 26, 148, 155); f. Posters promoting movies, including a poster of Monty Python's Quest for the Holy Grail, and movie stars (Dep. Exs. 82, 83, 84, 85, 86, 94); g. Posters advocating a position and viewpoint on environmental issues (Dep. Exs. 66, 67, 68, 159); h. Posters advocating a position and viewpoint with regard to global warming ("Stop Global Warming") ("How Do You Like Your Environment? Regular or Extra Crispy") (Dep. Exs. 64, 158); i. Poster advocating a position and viewpoint with regard to the issue of zero population growth (Dep. Ex. 152); j. Displays advocating a position and viewpoint on gay rights issues, including the following:
i. "Stop Hate Crimes" poster created by the Human Rights Campaign (hereinafter "HRC" found at www.hrc.org), "the largest national lesbian, gay, bisexual and transgender civil rights organization" (Dep. Exs. 13, 14);
ii. Poster with the pro-gay HRC equal ("=") symbol (Dep. Ex. 14);
iii. Gay, Lesbian and Straight Education Network, (hereinafter "GLSEN" found at www.glsen.org) "Day of Silence"

by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.

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poster, which promotes the pro-gay day of silence that some students and teachers in the School District engage in (Dep. Ex. 15);
iv. Gay, lesbian, bi-sexual, transgendered ("LGBT") rainbow flag (Dep. Ex. 15);
v. Decals of the HRC "equal" symbol (Dep. Ex. 16);
vi. Bumper stickers with the pro-gay political slogan, "Equal Rights Are Not Special Rights" (Dep. Ex. 16);
vii. Pro-gay "I am an ally" decals created by GLSEN (Dep. Ex. 16);
viii. Bumper stickers with the pro-gay slogan, "Celebrate Diversity," in rainbow colors (Dep. Ex. 16);
ix. Postings about pro-gay support groups and issues (Dep. Exs. 17, 18);
x. Pro-gay poster with the large caption, "Unfortunately, History Has Set the Record A Little Too Straight," which highlights the "National Coming Out Day, October 11th" (Dep. Exs. 19, 142);
xi. Bumper sticker for EQCA (Equality California), a gay rights organization that opposed Proposition 8 in California (Dep. Ex. 161; Brickley Dep. at 112-13 at Ex. 5);
xiii. HRC poster (Dep. Ex. 161); xiv. AIDS poster (Dep. Ex. 161); xv. Buttons expressing pro-gay slogans such as "Hate Free Zone," "Celebrate Diversity" (Dep. Ex. 137), "Ask Me Why I'm Silent," and a pink triangle with "Never Again" (Dep. Ex. 138; Brickley Dep. at 58-64 at Ex. 5). k. Posters expressing patriotic messages, including a poster with an excerpt from the

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Declaration of Independence (. . . life, liberty and the pursuit of happiness") (Dep. Exs. 57, 58, 60; Johnson Decl. at P 15, Ex. C at Ex. 1); l. Posters with inspirational messages (Dep. Exs. 69, 71, 72, 73; Johnson Decl. at P 15, Ex. C at Ex. 1); m. Various flags, including the Gadsden flag with the political slogan, "Don't Tread on Me" (Dep. Exs. 59, 61, 62, 63); n. Family photographs (Dep. Ex. 87); o. Non-student artwork (Dep. Ex. 81); p. Nature posters, pictures, and banners (Dep. Exs. 88, 95, 96); q. Cartoon characters (Dep. Ex. 89); r. Surfing poster (Dep. Ex. 90); s. Photographs of male models (Dep. Ex. 91); t. Homer Simpson model/statue (Dep. Ex. 93); u. Poster advocating a position and viewpoint on the issue of animal research (Dep. Ex. 65); v. Posters advocating a pro-military position and viewpoint (Dep. Exs. 42, 60), including one that consists of a large banner (approximately 5 feet high and 10 feet in length) with a photograph of an aircraft carrier and the following caption, which is an excerpt from the Declaration of Independence: "Life, Liberty and the Pursuit of All Who Threaten It" (Dep. Ex. 42); w. Displays advocating an anti-military/anti-war position and viewpoint (Dep. Exs. 36, 38, 39, 40, 41, 43, 141), including the following:
i. Poster with a large peace symbol

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(Dep. Ex. 36); ii. Display of a Lincoln penny with the
inscription, "The War Is Coming. Are You Ready?" (Dep. Ex. 38);
iii. Mock flag of the United States with the peace symbol located in the field of blue (Dep. Ex. 39);
iv. Poster stating, "war is not healthy for children and other things" (Dep. Ex. 40);
v. Bumper sticker stating, "How many Iraqi children did we kill today?" (Dep. Ex. 41); and
vi. Poster stating, "Every Minute the World Spends $ 700,000 on War While 30 Children Die of Hunger & Inadequate Health Care" (Dep. Ex. 43);
x. Displays of particular political parties and/or candidates, including the following:
i. Campaign poster of candidate Obama (Dep. Ex. 40);
ii. Newsweek magazine cover of the candidates Obama and Biden (Dep. Ex. 33); and
iii. Poster of the "Libertarian Party" (Dep. Ex. 35); y. Posters of religious leaders, including Gandhi (Hindu) and the Dali Lama (Buddhist) (Dep. Exs. 47, 49), and a posting of Gandhi's "7 Deadly Social Sins" (Dep. Ex. 48); z. Posters of Malcolm X, the controversial Muslim leader of the Nation of Islam (Dep. Exs. 50, 51, 135); aa. Posters of Martin Luther King, including a poster in which he quotes an excerpt from the Declaration of Independence ("I have a dream that one day this Nation will rise up and live out the true meaning of its creed, 'We hold these truths to be self-evident, that all men are

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created equal.'") (Dep. Exs. 44, 45); and bb. Poster with various religious and political symbols and the saying, "The hottest places in hell are reserved for those who in times of great moral crisis maintain their neutrality." (Dep. Ex. 151).
43. The lyrics to John Lennon's Imagine, which were posted on a classroom wall by a School District teacher, are as follows: Imagine there's no Heaven, It's easy if you try, No hell below us, Above us only sky, Imagine all the people, Living for today; Imagine there's no countries, It isn't hard to do, Nothing to kill or die for, And no religion too, Imagine all the people, Living life in peace; You may say that I'm a dreamer, But I'm not the only one, I hope someday you'll join us, And the world will be as one; Imagine no possessions, I wonder if you can, No need for greed or hunger, A brotherhood of man, Imagine all the people, Sharing all the world; You may say that I'm a dreamer, But I'm not the only one, I hope someday you'll join us, And the world will live as one. (Johnson Decl. at P 15, n.2, Ex. A, Dep. Ex. 20 at Ex. 1).
44. The School District does not object to the posting of the lyrics to John Lennon's Imagine by teachers in their classrooms. (Collins Dep. at 89-90 at Ex. 2; Chiment Dep. at 177-78 at Ex. 3).
45. The "National Coming Out Day, October 11th," which is depicted in a science teacher's poster (Dep. Ex. 142), is "a day when all gay

43. Objection: lacks foundation as to the nature of the lyrics; further lacks foundation that the lyrics were posted by a teacher.
44. Objection: misstates evidence. Mr. Collins and Mr. Chiment did not object to the poster of John Lennon, and the words use in that context, which promote tolerance. 45. Objection: relevance. Without waiving the objection, undisputed.

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people are supposed to come out of the closet and let people know they exist so that they will have a real live person to know who they are hating or not." (Brickley Dep. at 73 at Ex. 5).
46. The School District does not object to a poster promoting the "National Coming Out Day." (Collins Dep. at 188-89 at Ex. 2).
47. GLSEN is an activist group that promotes gay rights issues in education. (Brickley Dep. at 123 at Ex. 5).
48. HRC is a national organization that advocates and lobbies for gay rights. (Brickley Dep. at 114 at Ex. 5; see also Johnson Decl. at P 15, Ex. A, Dep. Ex. 13 at Ex. 1).
49. A symbol of HRC is a yellow equal sign on a dark blue background. (Brickley Dep. at 116 at Ex. 5; see also Johnson Decl. at P 15, Ex. A, Dep. Ex. 13 at Ex. 1).
50. Each of the items identified in paragraph 42 above was displayed as of April 2009, which is more than two years after Plaintiff was directed to remove his banners in January 2007. (Johnson Decl. at PP 12-15, Ex. A at Ex. in the
51. The School District expects its administrators to walk through the classrooms and observe what is taking place in order to ensure that teachers are abiding by School District policy. (Collins Dep. at 146 at Ex. 2; Chiment Dep. at 66-67 at Ex. 3; Kastner Dep. at 15-17, 25 at Ex. 4).
52. It is the duty of School District

46. Objection: relevance. Without waiving the objection, undisputed. 47. Objection: relevance. Without waiving the objection, undisputed. 48. Objection: relevance. Without waiving the objection, undisputed.
49. Objection: relevance. Without waiving the objection, undisputed.
50. Objection: Relevance, lacks foundation and calls for speculation as to the items' use in the classroom. 51. Undisputed.
52. Undisputed.

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administrators to observe what is taking place in their schools and to enforce School District policies. (Kastner Dep. at 28-29, 174; see also Chiment Dep. at 199 at Ex. 3).
53. The School District does not object to the display of Tibetan prayer flags-which Buddhists believe are sacred items that impart spiritual blessings-by teachers in their classrooms. (Collins Dep. at 94-95 at Ex. 2; Chiment Dep. at 180-81 at Ex. 3; Johnson Decl. at PP 11, 15, Ex. A, Dep. Exs. 24-26, 148, 155 at Ex. 1; see also Brickley Dep. at 90 at Ex. 5).
54. One display of Tibetan prayer flags by a School District science teacher stretches approximately 35 to 40 feet across the teacher's classroom. (Johnson Decl. at P 15, n.3 at Ex. 1; Brickley Dep. at 87 at Ex. 5).
55. The School District does not endorse or promote the non-curricular messages displayed by the teachers. (Johnson Decl. at PP 5, 16 at Ex. 1; Collins Dep. at 40-41 at Ex. 2; Chiment Dep. at 274, 279 at Ex. 3).
56. The teachers' displays do not constitute government speech. (Johnson Decl. at PP 5, 16 at Ex. 1; Collins Dep. at 40-41 at Ex. 2; Chiment Dep. at 274, 279 at Ex. 3).
57. There are no express size limitations for the teachers' non-curricular displays. (Collins Dep. at 42 at Ex. 2; Kastner Dep. at 71 at

53. Objection: Argumentative as a whole, and lacks foundation as to what Buddhists believe. Without waiving these objections, the District has not objected to the use of the flags by teacher Lori Brickley.
54. Undisputed.
55. Objection: calls for a legal conclusion as to the term "curricular" and as to whether the District endorses or promotes messages, and lacks foundation, and calls for speculation.
56. Objection: calls for legal conclusion.
57. Objection: calls for legal conclusion as to the term "curricular."

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Ex. 4).
58. There are no express limits on the number of non-curricular items the teachers can display. (Collins Dep. at 42 at Ex. 2; Chiment Dep. at 76 at Ex. 3; Kastner Dep. at 70 at Ex. 4).
59. Plaintiff's banners were displayed pursuant to the longstanding School District policy, practice, and/or custom that created a forum for teacher speech. (Johnson Decl. at PP 9, 10, 16, Ex. B at Ex. 1).
60. Plaintiff's banners were not displayed pursuant to any of his official duties as a teacher. (Johnson Decl. at PP 16, 36 at Ex. 1).

Disputed to the extent that there is a physical limit for teacher displays such that classroom would be unsafe from fire or that sort of thing. Plaintiff's Exh. 3, p. 164 (Chiment Depo p. 76:6-22.)
58. Objection: . Objection: calls for legal conclusion as to the term "curricular." Without waiving the objection, it is undisputed that there are no express limits to the items that can be displayed by a teacher in the classroom.
59. Objection: Calls for legal conclusion. Without waiving the objection, the District disputes that it created a forum, but it is undisputed that Plaintiff displayed the two banners at issue in the case.
60. Objection: calls for legal conclusion and vague and ambiguous as to the term "official duties." Without waiving the objection, teachers are permitted to display items because they are teachers.

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61. Plaintiff did not use his banners during any classroom session or period of instruction. (Johnson Decl. at PP 16, 36 at Ex. 1; Collins Dep. at 94 at Ex. 2; Chiment Dep. at 93-95 at Ex. 3).
62. Plaintiff's banners were not expressing a message on behalf of the School District. (Johnson Decl. at PP 5, 16 at Ex. 1; see also Collins Dep. at 40-41 at Ex. 2; Chiment Dep. at 274, 279 at Ex. 3).
63. The School District believes that public schools play an important role educating and guiding our youth through the marketplace of

Under the California Education Code, if Johnson was not an employee or parent/guardian of a student, he would need permission just to visit a classroom during the school day. Cal. Educ. Code, § 32211, subd. (a).
61. Objection: Vague and ambiguous as to the word "use." Without waiving the objection, the banners were on display to students during the school day, and therefore speech was being made by Johnson continuously. Both banners were located on walls in Johnson's classroom where they can be easily seen and read from where students sit in Johnson's classroom. Salvati Decl. P 3; Exhibit "B".
62. Objection: Calls for a legal conclusion. Without waiving the conclusion, the banners contained speech made by Johnson which carries the imprimatur of the School.
63. Undisputed.

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ideas and instilling national values. (Chiment Dep. at 271-72 at Ex. 3).
64. One method used by the School District to accomplish the task identified in paragraph 63 above is to permit students to be exposed to the rich diversity of backgrounds and opinions held by high school faculty. (Chiment Dep. at 272 at Ex. 3).
65. The School District permits its teachers, including Ms. Lori Brickley, a science teacher who is a proponent of gay rights (Brickley Dep. at 43 at Ex. 5), to participate in the "day of silence"-a pro-gay rights activity-on School District property with the students so long as the teacher's participation does not interfere with or disrupt the teaching of his or her classes. (Collins Dep. at 124-26, 140 at Ex. 2).
66. Plaintiff's banners caused no material disruption or disorder in his classroom or anywhere else in the school. (Johnson Decl. at P 35 at Ex. 1; Collins Dep. at 36-37 at Ex. 2; Chiment Dep. at 49-51, 276 at Ex. 3; Kastner Dep. at 85-86 at Ex. 4).
67. Plaintiff's banners did not interfere with the teaching of his classes. (Johnson Decl. at P 35 at Ex. 1; Collins Dep. at 36, 125 at Ex. 2; Chiment Dep. at 276 at Ex. 3; Kastner Dep. at 85-86 at Ex. 4).
68. Plaintiff's banners contain the following historical phrases: "In God We Trust," the official motto of the United States; "One Nation Under God," the 1954 amendment to the Pledge of Allegiance; "God Bless America," a patriotic

64. Undisputed.
65. Objection: Relevance.
66. Objection: Relevance.
67. Objection: Relevance, lacks foundation and calls for speculation. 68. Undisputed.

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song; "God Shed His Grace On Thee," a line from "America the Beautiful," a patriotic song; and "All Men Are Created Equal, They Are Endowed By Their Creator," an excerpt from the preamble to the Declaration of Independence. (Johnson Decl. at PP 17-32, Ex. B at Ex. 1).
69. Plaintiff displayed two such banners in his classrooms over the years, along with other items, including numerous photographs of nature scenes and national parks and several pictures of his family. (Johnson Decl. at P 18, Ex. B at Ex. 1).
70. Plaintiff's first banner, which is red, white, and blue, depicting the colors of our national flag, includes the phrases "In God We Trust," "One Nation Under God," "God Bless America," and "God Shed His Grace On Thee." (Johnson Decl. at P 19, Ex. B at Ex. 1).
71. Plaintiff continuously displayed a paper version of this first banner for approximately 8 years, and he continuously displayed the present version, which is made of more durable material, for approximately 17 years. The present version is an exact replica of the paper version. Consequently, the message of this banner was displayed continuously for approximately 25 years. (Johnson Decl. at P 19 at Ex. 1).
72. Plaintiff's second banner includes the phrase "All Men Are Created Equal, They Are Endowed By Their Creator." This banner was continuously displayed for approximately 17 years. (Johnson Decl. at P 20, Ex. B at Ex. 1).

69. Undisputed. 70. Undisputed. 71. Undisputed.
72. Undisputed.

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73. Each banner measures approximately 7 feet long by 2 feet wide and was continuously displayed in a non-obstructive manner. Plaintiff's banners do not contain any pictures or symbols. (Johnson Decl. at P 21, Ex. B at Ex. 1).
74. The phrases included in Plaintiff's banners are well-know patriotic phrases taken from secular historical sources, documents, or patriotic songs. (Johnson Decl. at PP 17, 22-32 at Ex. 1; Collins Dep. at 27-32 at Ex. 2; Chiment Dep. at 36-37, 40-43, 46 at Ex. 3).
75. Religious people founded this Nation; as a result, references to God are common in our songs, mottoes, and slogans. (Collins Dep. at 33-34 at Ex. 2; Chiment Dep. at 118-21 at Ex. 3; Kastner Dep. at 158-59 at Ex. 4).
76. The phrases included in Plaintiff's banners were not taken from any religious documents or religious texts. (Johnson Decl. at P 6, Ex. B at Ex. 1; Collins Dep. at 27-33 at Ex. 2).
77. Plaintiff's banners do not contain quotes or passages from Sacred Scripture or any other religious text. (Johnson Decl. at P 6, Ex. B at Ex. 1; see also Collins Dep. at 27-33 at Ex. 2).
78. The students in the School District would be familiar with the patriotic and historical phrases included in Plaintiff's banners. (Collins Dep. at 27-33 at Ex. 2).
79. "In God We Trust" is the official motto of the United States. (Johnson Decl. at P 22 at

73. Undisputed.
74. Objection: Lacks foundation and calls for speculation as to who has such knowledge.
75. Objection: Relevance. Without waiving the objection, undisputed.
76. Undisputed.
77. Undisputed.
78. Objection: Lacks foundation and calls for speculation. 79. Undisputed.

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Ex. 1).
80. A law passed by Congress and signed by the President on July 30, 1956, approved a joint resolution of Congress that declared "In God we trust" the national motto of the United States. (Johnson Decl. at P 22 at Ex. 1).
81. "In God We Trust" appears above the Speaker's Chair in the United States House of Representatives and above the main door of the United States Senate chamber. (Johnson Decl. at P 24 at Ex. 1).
82. In 1942, Congress enacted the Pledge of Allegiance, which was amended in 1954 to officially include the phrase "under God." (Johnson Decl. at P 27 at Ex. 1). 83. Students in the School District recite the Pledge of Allegiance on a daily basis. (Johnson Decl. at P 27 at Ex. 1; Collins Dep. at 28 at Ex. 2).
84. The preamble to the Declaration of Independence states as follows: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The Declaration of Independence is our Nation's founding document. (Johnson Decl. at P 29 at Ex. 1).

80. Undisputed.
81. Objection: Relevance and lacks foundation.
82. Objection: Relevance and lacks foundation. Without waiving the objections, undisputed. 83. Objection: Misstates testimony, lacks foundation. Although it is undisputed that the Pledge is recited in the school district as Mr. Collins testified, there is no evidence showing that each and every student recites the Pledge.
84. Undisputed.

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85. "God Bless America" is an American patriotic song written by Irving Berlin in 1918 and later revised by him in 1938. (Johnson Decl. at P 30 at Ex. 1; Collins Dep. at 29-30 at Ex. 2; Chiment Dep. at 40 at Ex. 3).
86. "God Bless America" is a phrase that is also commonly used in speeches by the President of the United States. (Johnson Decl. at P 31 at Ex. 1; Collins Dep. at 30 at Ex. 2; Chiment Dep. at 40-41 at Ex. 3).
87. The song "God Bless America" is often played at public events, including at sporting events, such as the seventh inning stretch at Yankee Stadium, since the terrorist attacks of September 11, 2001. (Johnson Decl. at P 30 at Ex. 1).
88. "God Shed His Grace on Thee" is a verse from "America the Beautiful," an American patriotic song that is often played at public events. (Johnson Decl. at P 32 at Ex. 1; Collins Dep. at 30 at Ex. 2).
89. During his 30 plus years of teaching in the School District, Plaintiff has had 7 different school principals, numerous school board members, superintendents, assistant superintendents, over 4,000 students and several thousand parents in his classrooms where the banners were displayed. Prior to January 2007, Plaintiff had not received one complaint from any School District administrator, parent, or student about the banners. (Johnson Decl. at P 33 at Ex. 1).

85. Undisputed.
86. Undisputed.
87. Objection: Relevance and lacks foundation. Without waiving the objection: Undisputed.
88. Undisputed.
89. Objection: Relevance. Without waiving the objection, it is undisputed.

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90. Plaintiff's banners never prohibited or interfered with his ability to educate the students in his math class. (Johnson Decl. at P 36 at Ex. 1; Collins Dep. at 125 at Ex. 2).
91. Plaintiff's long-standing practice of displaying his banners came to an abrupt end when on or about January 23, 2007, Defendants ordered him to remove the banners. (Johnson Decl. at PP 37, 38 at Ex. 1; Chiment Dep. at 30, 130, Dep. Ex. 6, at Ex. 3; Kastner Dep. at 101-02, 172 at Ex. 4).
92. Defendants directed Plaintiff to remove his banners because the School District believed that the banners were promoting a "Christian" or "Judeo/Christian" viewpoint. (Johnson Decl. at P 37 at Ex. 1; Collins Dep. at 43-44 at Ex. 2; Chiment Dep. at 133 at Ex. 3; Kastner Dep. at 44-45, 101-02, 137 at Ex. 4).

90. Undisputed.
91. Objection: Argumentative. Without waiving the objection, it is undisputed that the District requested Johnson to remove the banners on or about January 23, 2007.
92. Objection: Misstates evidence. Without waiving the objection, it is disputed. Referring to the two banners, the January 23 letter states that "[t]he prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all which include the word 'God' or 'Creator' has the effect of using your influence as a teacher to promote a sectarian viewpoint." See Defs.' Exh. "D."
Mr. Chiment has explained that the reason Johnson was asked to remove his banners is because they violate District policy

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93. Defendant Chiment, on behalf of the School District, sent a letter to Plaintiff regarding the School District's order directing Plaintiff to remove his banners. (Johnson Decl. at P 37 at Ex. 1; Chiment Dep. at 29, 30-31, 130, Dep. Ex. 6 at Ex. 3).
94. In the letter, which was dated January 23, 2007, Defendant Chiment claimed that Plaintiff's banners conveyed an impermissible "sectarian viewpoint" and, more specifically, "a particular sectarian viewpoint." (Johnson Decl. at P 37 at Ex. 1; Chiment Dep. at 133, Dep. Ex. 6 at Ex. 3).
95. The "sectarian viewpoint" noted in the letter was referring to "a particular religious viewpoint," which is the viewpoint of "those religious groups who refer to a supreme being

and procedure, consistent with the California and U.S. Constitutions and California Education Code. Specifically, the banners advocated a particular religious viewpoint over non-religion (atheism and agnosticism), and they also advocated "God" over other religions that do not use the word "God" for a supreme being (such as Yahweh or Allah, for example). See Defs. Exh. "E," Chiment Depo, pp. 128:8 - 129:12; 133:14-134:2.
93. Undisputed.
94. Undisputed.
95. Undisputed.

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as God," such as Christians. (Chiment Dep. at 133 at Ex. 3).
96. Defendant Kastner believed that Plaintiff's banners were impermissible because they expressed a "Christian" viewpoint. (Kastner Dep. at 101-02 at Ex. 4).
97. The decision to order Plaintiff to remove his banners was discussed and approved during one or more Superintendent Cabinet meetings in which the members of the cabinet were present and all approved of the decision. (Collins Dep. at 58-59 at Ex. 2).
98. Defendants did not inform Plaintiff that his banners caused a material disruption or substantial disorder in the school or that the banners interfered with the curriculum. (Johnson Decl. at P 39 at Ex. 1; Chiment Dep. at 130, 276, Dep. Ex. 6 at Ex. 3).
99. At the time they directed Plaintiff to remove his banners, Defendants had no evidence that Plaintiff's banners caused any material disruption or disorder in the School District. (Johnson Decl. at P 35 at Ex. 1; Collins Dep. at 36-37, 125 at Ex. 2; Chiment Dep. at 49-51, 276 at Ex. 3; Kastner Dep. at 85-86 at Ex. 4).
100. Defendants singled out Plaintiff for disfavored treatment because of the viewpoint expressed by his banners. (Johnson Decl. at PP 37-39 at Ex. 1; Collins Dep. at 43-44 at Ex. 2; Chiment Dep. at 133, 278, Dep. Ex. 6 at

96. Objection: Relevance. Without waiving the objection, it is undisputed that Kastner agreed with Chiment's decision. 97. Undisputed.
98. Objection: Relevance. Without waiving the objection, it is undisputed.
99. Objection: Relevance. Without waiving the objection, it is undisputed.
100. Objection: argumentative, and calls for legal conclusion. Without waiving the objection, the reasons for

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Ex. 3; Kastner Dep. at 44-45, 101-02, 137 at Ex. 4).

the banners' removal were discussed in the January 23, 2007 letter from Chiment to Johnson, which states that "[t]he prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all which include the word God' or Creator' has the effect of using your influence as a teacher to promote a sectarian viewpoint." See Defs.' Exh. "D."
Mr. Chiment has further explained that the reason Johnson was asked to remove his banners is because they violate District policy and procedure, consistent with the California and U.S. Constitutions and California Education Code. Specifically, the banners advocated a particular religious viewpoint over non-religion (atheism and agnosticsism), and they also advocated "God" over other religions that do not use the word "God" for a supreme being (such as

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101. Plaintiff wants to display his banners in his classroom; however, Defendants have prohibited him from doing so. (Johnson Decl. at P 40 at Ex. 1; see also Chiment Dep. at 30, 130, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 76 at Ex. 4).
102. Defendants have prohibited Plaintiff from displaying his banners in his classroom based on the viewpoint of Plaintiff's speech. (Johnson Decl. at PP 37-39 at Ex. 1; Collins Dep. at 43-44 at Ex. 2; Chiment Dep. at 133, 278, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 44-45, 101-02, 137 at Ex. 4).

Yahweh or Allah, for example). See Defs. Exh. "E," Chiment Depo, pp. 128:8 - 129:12; 133:14-134:2.
101. Undisputed.
102. Objection: Calls for legal conclusion and argumentative. Without waiving the objection, the reasons for the banners' prohibition were discussed in the January 23, 2007 letter from Chiment to Johnson, which states that "[t]he prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all which include the word God' or Creator' has the effect of using your influence as a teacher to promote a sectarian viewpoint." See Defs.' Exh. "D."
Mr. Chiment has further

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103. Pursuant to School District policy, practice, and/or custom, it is entirely proper for Plaintiff to display on his classroom walls non-curricular materials, including posters and banners, "about the foundation of our nation," that express patriotic or historical messages, or that express inspirational messages. (Johnson Decl. at PP 11-15, 38, Ex. C at Ex. 1; Collins Dep. at 38-40, 56, 155-56 at Ex. 2; Chiment Dep. at 45, 84-85, 135-36, 141, 215-17, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 45 at Ex. 4).

explained that the reason Johnson was asked to remove his banners is because they violate District policy and procedure, consistent with the California and U.S. Constitutions and California Education Code. Specifically, the banners advocated a particular religious viewpoint over non-religion (atheism and agnosticism), and they also advocated "God" over other religions that do not use the word "God" for a supreme being (such as Yahweh or Allah, for example). See Defs. Exh. "E," Chiment Depo, pp. 128:8 - 129:12; 133:14-134:2.
103. Objection: Calls for legal conclusion with respect to the term "non-curricular." Without waiving the objection, the fact is disputed to the extent that there are limits on what personal items teachers are permitted to display under the law, and by the District's own policies and practices. See Defs.' Exhs. "C"; "D," pp. 13-15,

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104. The subject matter of Plaintiff's banners was permitted. (Johnson Decl. at PP 11-15, 38 at Ex. 1; Collins Dep. at 38-40, 56, 155-56 at Ex. 2; Chiment Dep. at 45, 84-85, 135-36, 141, 215-17, Dep. Ex. 6 at Ex. 3; Kastner Dep. at 45 at Ex. 4).

and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
104. Objection: Vague and ambiguous as to what is meant by the term "subject matter." Without waiving the objection, the reasons for the banners' prohibition were discussed in the January 23, 2007 letter from Chiment to Johnson, which states that "[t]he prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all which include the word God' or Creator' has the effect of using your influence as a teacher to promote a sectarian viewpoint." See Defs.' Exh. "D."
Mr. Chiment has further explained that the reason Johnson was asked to remove his banners is because they violate District policy and procedure, consistent with the California and U.S. Constitutions and California Education Code.

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Specifically, the banners advocated a particular religious viewpoint over non-religion (atheism and agnosticism), and they also advocated "God" over other religions that do not use the word "God" for a supreme being (such as Yahweh or Allah, for example). See Defs. Exh. "E," Chiment Depo, pp. 128:8 - 129:12; 133:14-134:2.

105. Defendants' removal of Plaintiff's banners was not curriculum related; Plaintiff was teaching and continues to teach his assigned mathematics curriculum. (Johnson Decl. at PP 16, 36 at Ex. 1; Collins Dep. at 94 at Ex. 2; Chiment Dep. at 93-95 at Ex. 3).
106. Had Plaintiff not complied with Defendants' order to remove his banners, Plaintiff would have been subject to some form of disciplinary action for insubordination. (Johnson Decl. at P 41 at Ex. 1; Collins Dep. at 59 at Ex. 2).
[*52]

105. Objection: Calls for legal conclusion as to the term "curriculum." Without waiving the objection, it is undisputed that Mr. Johnson continues to teach math for the Poway Unified School District. 106. Objection: Lacks foundation and calls for speculation. Mr. Collins's response at the Exhibit cited by Plaintiff indicates that discipline may be given for insubordination and that Mr. Chiment would be responsible for making that decision.

SUPPLEMENTAL FACTS SUBMITTED BY DEFENDANTS (i) Mr. Chiment, the District's Associate Superintendent for Personnel Services,

(i) Exh. "M," poster of God Bless America (depo exhibit

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testified at his deposition that a single poster with the words "God Bless America" as depicted in Exhibit "M" (Chiment Depo. Exhibit 97) would be permitted to be displayed by a teacher in a classroom: "I see it as patriotic, and the overall impact of it is not the repetition of the theme of God. The predominant theme is America. And it's one single banner."
(ii) The District provided Johnson with alternative material display that still contained religious historical and patriotic references, but in their original context. As Principal Kastner explained with respect to the provision of this alternative material as opposed to the individual phrases on Johnson's banners: "The issue was never these phrases in isolation, and these phrases were all not only permitted but encouraged. I - he has posters that include all of those phrases that can be put on those walls. It's taking them out of context that was the issue."
(iii) With respect to poster of John Lennon, Mr. Collins, the School's Deputy Superintendent, testified that he is Christian and was not aware of any controversy surrounding the song "Imagine" by John Lennon nor did he find it offensive; he viewed the song to be about "tolerance." [*53]
DATED: September 28, 2009
STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation
By: /s/ Paul V. Carelli, IV

97) at p. 86 of Defs.' Supp. Exhibits; and Exh. "M", pp. 87-88 (Chiment Depo., pp. 244:16-245:6).
(ii) Exh. "N," of Defs. Supp. Exhibits, (Kastner Depo., pp. 142:25-143:11), referencing alternative materials at Defs.' Exh. "K."
(iii) Plaintiff's Exh. "2," p. 126 (Collins Depo. p. 90:19-91:13). Defs. Exh. "O," of Defs. Supp. Exhibits: poster of John Lennon referenced by Collins (depo exhibit 20).

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Daniel R. Shinoff Jack M. Sleeth, Jr. Paul V. Carelli, IV Attorneys for POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; PENNY RANFTLE; DR. DONALD A. PHILLIPS; WILLIAM R. CHIMENT; and DAWN KASTNER
Email Address: pcarelli@stutzartiano.com
DEFENDANTS' OBJECTIONS PLAINTIFF'S EVIDENCE [FRCP 56]
Defendants object to the following evidence submitted by Plaintiff in support of his motion for summary judgment:
DECLARATION OF BRADLEY JOHNSON
1. At paragraph 9, the word "curriculum" is vague and ambiguous and calls for a legal conclusion as to its scope.
2. Paragraph 10 lacks foundation and calls for speculation as to whether the banners interfered with student thought.
3. Paragraph 11, at p. 3, lines 17-18 lack foundation that the song "Imagine" is controversial.
4. The items described in Paragraph 11 are irrelevant, and the description lacks foundation and calls for speculation as to each item's use in the classroom, whether it was displayed by a teacher (as opposed [*54] to a student project) and how each item relates to the classroom.
5. Paragraphs 13 and 14 lack foundation and call for speculation.
6. Paragraph 15 is irrelevant with respect to what items are displayed in the classrooms.
7. Paragraph 16 calls for a legal conclusion and is argumentative.
8. Because Paragraph 23 is based upon information and belief, it lacks foundation and calls for speculation.
9. Because Paragraph 24 is based upon information and belief, it lacks foundation and calls for speculation.
10. Because Paragraph 25 is based upon information and belief, it lacks foundation and calls for speculation.
11. Because Paragraph 26 is based upon information and belief, it lacks foundation and calls for speculation.
12. Because Paragraph 27 is based upon information and belief, it lacks foundation and calls for speculation.
13. Because Paragraph 28 is based upon information and belief, it lacks foundation and calls for speculation.
14. Because Paragraph 30 is based upon information and belief, it lacks foundation and calls for speculation as to its entirety, and with particularity that the song is an "unofficial national anthem" and [*55] that the song has been sung at Yankee Stadium.

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15. Because Paragraph 32 is based upon information and belief, it lacks foundation and calls for speculation.
16. As to the last sentence in paragraph 33, it lacks foundation and calls for speculation, and is argumentative.
17. Paragraph 35 lacks foundation and calls for speculation.
18. Paragraph 36, first sentence, calls for a legal conclusion.
19. Paragraph 37, first sentence is argumentative.
20. Paragraph 38 is argumentative and calls for a legal conclusion.
21. Paragraph 39 is objected to on relevance grounds, calls for legal conclusion, and argumentative.
22. Paragraph 41 lacks foundation and calls for speculation.
DATED: September 28, 2009
STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation
By: /s/ Paul V. Carelli, IV Daniel R. Shinoff Jack M. Sleeth, Jr. Paul V. Carelli, IV
Attorneys for Defendants POWAY UNIFIED SCHOOL DISTRICT, JEFF MANGUM, LINDA VANDERVEEN, PENNY RANFTLE, STEVE MCMILLAN, ANDY PATAPOW, DONALD PHILLIPS, WILLIAM CHIMENT, and DAWN KASTNER
Email Address: pcarelli@stutzartiano.com
DECLARATION OF SERVICE
I am and [*56] was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of San Diego in the office of a member of the bar of this court at whose direction the service was made. My business address is 2488 Historic Decatur Road, Suite 200, San Diego, CA92106-6113.
On September 28, 2009, I served the following document(s):
1. DEFENDANTS' OPPOSITION TO PLAINTIFF BRADLEY JOHNSON'S MOTION FOR SUMMARY JUDGMENT;
2. DEFENDANTS' SUPPLEMENTAL EXHIBITS IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 2.a. EXHIBITS M-O;

2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75417, *56

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3. SUPPLEMENTAL DECLARATION OF PAUL V. CARELLI IV IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
4. DEFENDANTS' RESPONSES AND OBJECTIONS TO PLAINTIFF'S SEPARATE STATEMENT OF FACTS; and
5. DEFENDANTS' OBJECTIONS PLAINTIFF'S EVIDENCE
[X] BY ELECTRONIC SERVICE On the date executed below, I caused to be served the document(s) via CM/ECF described above on designated recipients through electronic transmission of said documents, a certified receipt [*57] is issued to filing party acknowledging receipt by CM/ECF's system. Once CM/ECF has served all designated recipients, proof of electronic service is returned to the filing party.
[] BY MAIL by depositing in the United States Postal Service mail box at 2488 Historic Decatur Road, Suite 200, San Diego, California 92106, a true copy thereof in a sealed envelope with postage thereon fully prepaid and addressed as follows:
COUNSEL FOR PLAINTIFFS:
Charles S. LiMandri, Esq. L/O OF CHARLES S. LiMANDRI P.O. Box 9120 Rancho Santa Fe, CA 92067-4120 (858) 759-9930 Fax: (858) 759-9938 climandri@limandri.com
Robert J. Muise Thomas More Law Center 24 Frank Lloyd Wright Drive Ann Arbor, MI 48105 (734) 827-2001 Fax: (734) 930-7160 rmuise@thomasmore.org
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on September 28, 2009, at San Diego, California.
/s/ Paul V. Carelli IV Paul V. Carelli IV
[SEE EXHIBIT "M" IN ORIGINAL]
[SEE EXHIBIT "N" IN ORIGINAL]
[SEE EXHIBIT "O" IN ORIGINAL]

 
 Page 1
View U.S. District Court Opinion
View Original Source Image of This Document BRADLEY JOHNSON, Plaintiff, vs. POWAY UNIFIED SCHOOL DISTRICT JEFF MANGUM; LINDA VANDERVEEN AN DR EW PATAPOW; TODD GUTSCHOW; and PENNY RANFTLE, all individually and in his or her official capacity as a Member of the Board of Education for the Poway Unified School District; DR. DONALD A. PHILLIPS, individually and in his official capacity as Superintendent of the Poway Unified School District; WILLIAM R. CHIMENT; individually and in his official capacity as Assistant Superintendent of the Poway Unified School District; and DAWN
KASTNER, individually and in her official capacity as Principal, Westview High School Poway Unified School District, Defendants. CASE NO. 07cv783 BEN (NLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75419 October 19, 2009
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s) COUNSEL: [*1] STUTZ ARTIANO SHINOFF & HOLTZ, A Professional Corporation, Daniel R. Shinoff, Esq. (State Bar No. 99129), Jack M. Sleeth, Jr., Esq. (State Bar No. 108638), Paul V. Carelli IV, Esq. (State Bar No. 190773), San Diego, CA, Attorneys for Defendants, POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; PENNY RANFTLE; DR. DONALD A. PHILLIPS; WILLIAM R. CHIMENT; and DAWN KASTNER. JUDGES: ICJ: Hon Roger T. Benitez; MAG: Hon. Nita L. Stormes TITLE: Defendants' Reply To Plaintiff's Opposition To Motion For Summary Judgment TEXT: INTRODUCTION
The parties filed crossed-motions for summary judgment. There are some minor disagreements in the evaluation of the facts, but there are no material issues of fact in either motion. The significant issue is a single issue of law; which rule applies to these facts? The school teacher contends that his classroom is a "public forum" controlled by a particular line of cases. The School District contends this is employee-speech, controlled by a different line of cases. After the

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correct legal rule is selected, the School District contends that it should prevail under either test. The banners displayed by this teacher [*2] in this math classroom were too explicitly "religious" to be permitted in the public schools under either test, and the local elected school board and its administration should have control over the dissemination of information in the classroom, particularly in regard to a subject like religion that could result in additional lawsuits against the School District.
The School District Administration believed that the banner's size, prominence in the classroom, and repetition of the word "God" and "Creator" were improper, but that the same concepts, contained in posters including some historical context and including some additional educational material, would have been acceptable. The School District offered to provide the teacher with the same phrases in posters, but he would not agree. The issue is whether the Constitution gives a teacher the absolute right to display large banners in the classroom on the subject of religion, or do the banners impermissibly entangle the School District in religion?
FACTS
Johnson identifies very few disputed issues of fact, and of those that are disputed, most are not "material." In several cases, Johnson does not dispute the fact but argues [*3] with the characterization by the School District. Johnson invites the Court to review the photos of the banners to determine their meaning. Doc. 56-2, Facts 13, 14, and 16. Johnson contends that the banners are patriotic expressions. But the only facts the banners have in common are their national historic nature and the references to "God" or the "Creator" in each, implying a national endorsement of the religious belief in God the Creator, rather than Buddha, or Allah, or some other religion, or no religion. The School District contends the banners entangled the School District in religion in violation of the Establishment Clause. But that is a dispute of law; not a dispute of material fact sufficient to overcome a motion for summary judgment. It is the central dispute of law that is the reason for the litigation. Do these banners - displayed in a public classroom, as they appeared, however one characterizes their appearance - impermissibly entangle the School District in religion?
This issue is an issue of law. "It stands to reason that if the question of whether a government activity communicates endorsement of religion is primarily a legal question, then the question of whether [*4] a government activity communicates disapproval of religion is also largely a legal question. C.F. v. Capistrano Unified School Dist., 615 F.Supp.2d 1137, 1155 -1156 (C.D.Cal., 2009)
Johnson disputes the School District's statement that "non-curricular items are part of the learning environment and potentially advocating, therefore such items [sic] are subject to this written policy." Doc. 56-2, Fact 30. But this is really a dispute of law. Is it not true that some non-curricular items could be displayed by a teacher that would be impermissible? Is there no limit upon the personal display of a teacher in his classroom? The case law has placed limits on teacher displays in the classroom, which was the basis for the School District's Administrator's concern that these banners were impermissible.
In Facts 53 and 55 the School District referred to the Assistant Superintendent's reasons for asking Johnson to take down the banners. Johnson disputes the "facts" but without offering contrary evidence. He simply does not agree with the Administrator's reason, but the reasons identified were the reasons given by the Administrator in his deposition. Argument of counsel [*5] does not raise material dispute of fact.
Johnson disputes the statement that the "Tibetan Prayer Flags" on display were "decorative." Doc. 56-2, Fact 62. He contends that they are "sacred, religious items that promote Buddhism." But he does not offer any competent evidence that they are religious or sacred. There is no evidence that they promote any religion. The writing on the flags is in Sanskrit, an ancient language, that does not promote anything to English speakers. The Court is invited to view Exhibit "J" to determine whether the flags promote any idea, or are merely decorative. But this is not a dispute of fact, if for no other reason, than because Johnson offered no admissible evidence that the flags promote religion.
Finally, Johnson disputes the fact that teacher "Brickley's personal belief is that religion does not belong in the

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classroom." But that fact is taken from her testimony. Johnson offers argument about some of her beliefs, which he contends are political and opposed to his ideas. She put up a bumper sticker that says "Hate is not a family value." She thinks some Christians are homophobic. She demonstrated with students in favor of gay rights. California [*6] law makes discrimination against a person because of sexual orientation illegal. Cal. Ed. Code § 220; Cal. Civ. Code § 51; Cal. Pen Code § 422.55. Brickley's beliefs are consistent with California law and not inconsistent with Christian doctrine. Hate is not a Christian value, either. Johnson's analysis of Brickley's beliefs does not raise a triable issue of material fact. If her support of controversial issues crosses the line, then the School District will be required to address that conduct with her. But the issue here is Johnson's banners, and whether those banners impermissibly entangle the School District with religion in violation of the Establishment Clause.
ARGUMENT
I. Right to Speech Must be Balanced Against the Risk of Entanglement with Religion.
A. The Forum Test Does Not Apply To These Facts.
Johnson asks the Court to use a forum analysis. The forum analysis does not apply to employee speech during working hours, but does apply to speech of private citizens using the employer's facilities. Berry v. Department of Social Services ("Berry"), 447 F.3d 642, 650 (9th Cir. 2006). Berry turned upon the use of that space during [*7] the employee's off-duty hours. This case addresses employee speech during working hours.
The issue is not the right of a member of the public speaking to students, or students speaking to students. Rather, this case addresses a public-school employer's right to protect its own legitimate interests in performing its mission of educating students balanced against a public-school teacher's rights to speech during his working hours with students. The School District's interest in avoiding an Establishment Clause violation must be balanced against Johnson's right to free speech. "[T]he interest of the State in avoiding an Establishment Clause violation 'may be [a] compelling' one justifying an abridgement of free speech otherwise protected by the First Amendment . . . . " Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993) quoting Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 275, 70 L.Ed.2d 440 (1981). The Supreme Court identified the balancing test for public employee's speech in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), as the starting point [*8] for the analysis.
B. Ruling a Classroom Is a Limited Public Forum Will Disrupt the Educational Process
If the Court rules that this classroom is a public forum, then there is a substantial risk that some other people would have the right to address the students in that public forum. That would create an impossible condition for the School District, impeding the ability of the School District to accomplish its mission to provide an education to its students.
The Supreme Court has identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum. Arkansas Educ. Television Com'n v. Forbes, 523 U.S. 666, 677 (1998). Johnson contends that his classroom is in the second group, a forum created by government designation. "A public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Cornelius v. NAACP Legal Defense and Educational Fund, Inc.("Cornelius") 473 U.S. 788, 802 (1985). If this classroom is a public forum, [*9] then the public at large, or at least certain speakers, must have access to use it. That would be harmful to the educational process.
It is undisputed that Johnson is the only teacher who is permitted to post material in that classroom: "No other teacher is permitted to display materials on Plaintiff's classroom walls without Plaintiff's permission." Doc. 43-3, Fact 33. Johnson's position is inconsistent with the notion of a public forum. He is an employee speaking during working hours. His position on this limited permission is inconsistent with the type of designation. If it is a limited public forum,

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then, at the least, some other teachers would be permitted to display materials in his classroom. If some part of the public is not permitted to access the classroom, then it is not a public forum.
C. There Is No Evidence that the School District Intended a Public Forum
A designated public forum cannot be created accidently, or by implication. "Designated public fora . . . are created by purposeful governmental action. "The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional [*10] public forum for public discourse." Cornelius, 473 U.S., at 802, accord, International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (designated public forum is "property that the State has opened for expressive activity by part or all of the public"). Hence "the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum." Cornelius, 473 U.S., at 802.
There is no evidence that the School District intended to create a public forum in its classrooms. Johnson describes it as a "policy, custom, or practice." Doc. 56, at 2:10-11; 16-17. There is a policy that governs the teaching of controversial subjects. That policy does not specifically create a public forum and does not show an intent to create a public forum. It controls and limits materials in the classroom, which includes materials posted on classroom walls. But nothing in that policy evidences any intent by the School District to open the classrooms as open forums.
The evidence from each of the school Administrators was that they believed [*11] that they had a duty to limit the materials posted on the walls of classrooms if the material violated the law. There is a limitation placed upon the personal items teachers may display under the law, and under the Policy and practice. Doc. 55-5, Defs.' Exhs. "C"; "D," pp. 13-15, and Exh. "E," Chiment Depo, pp. 57:15-58:3; 65:2-6.
D. No Court Has Yet Made a Classroom Into an Open Forum
Johnson has not identified any case that has held that a classroom is an open forum. The School District did not find one, either. His argument is simply to deny the application of the Pickering-style analysis, and to proceed with a forum analysis. Ninth Circuit authority favors the School District's approach.
School Districts hire teachers for their speech. The employer must be permitted to control that speech. "This is so in part because the school system does not "regulate" teachers' speech as much as it hires that speech. Expression is a teacher's stock in trade, the commodity she sells to her employer in exchange for a salary." Mayer v. Monroe County Community School Corp., 474 F.3d 477, 479 (7th Cir. 2007). Similarly, it is not the rights of the teacher at issue [*12] here; it is the rights of the children. "Children who attend school because they must ought not be subject to teachers' idiosyncratic perspectives." Id. "But if indoctrination is likely, the power should be reposed in someone the people can vote out of office, rather than tenured teachers. At least the board's views can be debated openly, and the people may choose to elect persons committed to neutrality on contentious issues." Id. at 479-80.
Several courts have considered arguments that a forum analysis should apply to the classroom, in several different contexts. No court has decided that a classroom is an open forum. "[I]n classrooms, during school hours, when curricular activities are supervised by teachers, the nonpublic nature of the school is preserved. Speech occurring during these activities may be regulated under standards different from those that would apply in public fora." Busch v. Marple Newtown School Dist., 567 F.3d 89, 95 (3d. Cir.2009). "Some places on the University's campus, such as the administration building, the president's office, or classrooms are not opened as fora for use by the student body or anyone [*13] else." Bowman v. White, 444 F.3d 967, 997 (8th Cir. 2006). "[T]he selection of textbooks by the state for use in public school classrooms is government speech, and is not subject to the forum analysis of Hazelwood or the viewpoint neutrality requirement. Chiras v. Miller, 432 F.3d 606, 620 (5th Cir. 2005). "[A]lthough Edwards has a right to advocate outside of the classroom for the use of certain curriculum materials, he does not have a right to use those materials in the classroom. Edwards v. California University of Pennsylvania, 156 F.3d 488, 491 (3d Cir. 1998).
In Downs v. Los Angeles Unified School Dist. 228 F.3d 1003, 1005, 1013 (9th Cir 2000), the Ninth Circuit

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determined that a bulletin board, placed in a hallway, outside of the classroom, used by teachers, had not been made into open forum, or a limited forum, by the school district, and upheld limitations placed upon displays on that bulletin board. That ruling argues that the less public nature of the classroom is even less likely to qualify as a public forum.
E. "Substantial Disruption" is Not The Test.
Johnson also contends [*14] that the Defendants cannot prohibit the banners because the banners did not "materially and substantially disrupt the work and discipline of the school," quoting Tinker, supra, 393 U.S. at 513 and Grayned v. City of Rockford, 408 U.S. 104 (1972). Doc. 43-2, p. 8, fn. 6. But Johnson does not fully articulate the test from Tinker. Under Tinker, there are three conditions that permit limitations on speech, not just "disruption." The actual test is, a student may exercise his right to freedom of expression unless the "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others ...." Tinker, 393 U.S. at p. 513, emphasis added. If a student felt coerced into reading the banners on a daily basis, then that student's rights were invaded, and the Tinker limitation does not apply.
F. Even using a Hazelwood forum analysis, the Defendants still should prevail.
In the event that this Court were to find that the Berry/Pickering balancing [*15] test does not apply, and that Johnson's classroom was a limited public forum under the Hazelwood analysis, the School District would still be within its rights to remove the banners. Under that analysis, the Defendants may still prevail if they show that the banners constitutes an Establishment Clause violation. This is because avoiding endorsement of religion is a constitutional mandate and therefore a compelling interest. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112-13 (2001) (citing Widmar v. Vincent, 454 U.S. 263, 271 (1981)).
To that end, the Ninth Circuit has held that schools may refuse to allow religious speech in a limited public forum where it is necessary to avoid an Establishment Clause violation. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir.2000). "We conclude the District officials did not violate the students' freedom of speech. Even assuming the Oroville graduation ceremony was a public or limited public forum, the District's refusal to allow the students to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause under [*16] the principles applied in Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), and Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). [Citiations.]" Cole, 228 F.3d at 1101; See, e.g., Prince v. Jacoby, 303 F.3d 1074, 1086-87 (9th Cir.2002) (finding that while student religious group must be given equal access to school's public address system to announce its activities, the group may be barred from doing so to "pray and proselytize"); and Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 980 (9th Cir.2003) (prohibiting proselytizing in high school graduation speech)
G. California Constitution Limits a Teacher Advocating a Controversial Viewpoint.
Johnson agrees that federal law governs California Establish Clause Analysis. So, like his First Amendment claim, Johnson's Claim for violation of free speech under the California Constitution also fails.
II. Under Equal Protection Johnson Was Not Treated Differently
Johnson returns to his forum analysis argument and applies that argument to the Equal Protection analysis. [*17] The School District continues to contend that the forum analysis cannot be applied to teacher speech during class time.
In equal protection claims brought by a "class of one," the plaintiff must show he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336 (1989). But the evidence shows that he was not intentionally treated differently. While he asserts that several documents posted in other classrooms are similar to his banners, the only display that is as large and as

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prominent as his banners is the display of the "Tibetan Prayer Flags." But there is no evidence that the flags communicated any religious ideas. They appear to be decorative, and inscrutable, since they are written in Sanskrit, which no person at the school has been able to read. Exh. 5, Doc. #54-4, pp. 224-225 (Brickley Depo., pp. 88:17-89:6).
III. The Individual Defendants Should Be Granted Qualified Immunity.
Qualified immunity applies to [*18] protect a defendant when the Constitutional right "was not clearly established at the time of the alleged violation." Cole v. Oroville Union High School Dist., 228 F.3d 1092, 1101 (9th Cir. 2000). These public school administrators cannot be expected to understand the details of Constitutional jurisprudence, and can reasonably be expected to have believed that the banners violated the Constitution.
This is a complicated case with logical arguments on both sides, in a legal arena where appellate justices frequently disagree. School Administrators have been carefully taught that advocating religion is not permitted in the classroom. All these school Administrators agreed that Johnson's banners looked like religious advocacy. They cannot reasonably have been expected to believe that these banners would be permitted by the Court.
CONCLUSION
The difficult factual issue in this case is the national slogans Johnson chose to display. Taken separately, and displayed more moderately, each line would be permissible. When combined and written large, with the repeated references to "God" along with the historical context of the phrases, the banners imply that the government [*19] endorses religion, and the particular religion that identifies the deity as "God" the "Creator" instead of "Buddha" or "Allah." From the point of view of the students, Johnson is the Government. So his banners teach students that the United States and the School District endorse the religion that identifies the deity as "God."
In C.F. v. Capistrano Unified School Dist., 615 F.Supp.2d 1137, 1155 -1156 (C.D.Cal., 2009) the court determined that a science teacher could not make statements in class that were critical of religion. The court recognized that critical thinking was important in the classroom, but also saw that even a minor transgression would harm the rights of students. The Court quoted a passage limiting the support of religion. "[I]t is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, 'it is proper to take alarm at the first experiment on our liberties.'" Id. at quoting School Dist. of Abington, 374 U.S. at 225 (1963); see also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 36-37, [*20] (2004) (O'Connor, J., concurring) (explaining that "[t]here are no de minimis violations of the Constitution"). In this case it is Johnson who is advocating religion with the appearance of government approval and the support of the School District. That is improper; the government must remain completely neutral on the issue of religion.
The Court is respectfully requested to deny Plaintiffs motion for summary judgment, and to grant the Defendants' motion for summary judgment.
DATED: October 19, 2009
Respectfully submitted,
STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation
By: /s/ Jack M. Sleeth Jr. Daniel R. Shinoff Jack M. Sleeth Jr. Paul V. Carelli IV

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Attorneys for Defendants, POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM; LINDA VANDERVEEN; ANDREW PATAPOW; TODD GUTSCHOW; PENNY RANFTLE; DR. DONALD A. PHILLIPS; WILLIAM R. CHIMENT; and DAWN KASTNER Email Address: jsleeth@stutzartiano.com
DECLARATION OF SERVICE
I am and was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of San Diego in the office [*21] of a member of the bar of this court at whose direction the service was made. My business address is 2488 Historic Decatur Road, Suite 200, San Diego, CA92106-6113.
On October 19, 2009, I caused to be served the following document:
DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
[X] BY ELECTRONIC SERVICE On the date executed below, I caused to be served the document via CM/ECF described above on designated recipients through electronic transmission of said documents, a certified receipt is issued to filing party acknowledging receipt by CM/ECF's system. Once CM/ECF has served all designated recipients, proof of electronic service is returned to the filing party.
COUNSEL FOR PLAINTIFFS:
Charles S. LiMandri, Esq. L/O OF CHARLES S. LiMANDRI P.O. Box 9120 Rancho Santa Fe, CA 92067-4120 (858) 759-9930 Fax: (858) 759-9938 climandri@limandri.com
Robert J. Muise Thomas More Law Center 24 Frank Lloyd Wright Drive Ann Arbor, MI 48105 (734) 827-2001 Fax: (734) 930-7160 rmuise@thomasmore.org
I declare under penalty of perjury under the laws of the State of California that the foregoing is [*22] true and correct.
Executed on October 19, 2009, at San Diego, California.
/s/ Jack M. Sleeth Jr. Jack M. Sleeth Jr. jsleeth@stutzartiano.com

 
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View U.S. District Court Opinion
View Original Source Image of This Document BRADLEY JOHNSON, Plaintiff, v. POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM, LINDA VANDERVEEN, ANDREW PATAPOW, TODD GUTSCHOW, and PENNY RANFTLE, all individually and in his or her official capacity as a Member of the Board of Education for the Poway Unified School District; DR. DONALD A. PHILLIPS, individually and in his official capacity as Superintendent of the Poway Unified School District; WILLIAM R. CHIMENT, individually and in his official capacity as Assistant Superintendent of the Poway Unified School District; and DAWN
KASTNER, individually and in her official capacity as Principal, Westview High School, Poway Unified School District, Defendants. CASE NO. 07cv783 BEN (NLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75416 September 28, 2009
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s) COUNSEL: [*1] Charles S. LiMandri, Esq. (California State Bar No. 110841), LAW OFFICES OF CHARLES S. LiMANDRI, WEST COAST REGIONAL OFFICE OF THE THOMAS MORE LAW CENTER, Rancho Santa Fe, California, Robert J. Muise, Esq. * (Michigan State Bar No. P62849), THOMAS MORE LAW CENTER, Ann Arbor, Michigan, * Admitted pro hac vice, Counsel for Plaintiff. JUDGES: Hon. Roger T. Benitez TITLE: Plaintiff's Memorandum Of Points And Authorities In Opposition To Defendants' Motion For Summary Judgment TEXT: INTRODUCTION
In West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), the U.S. Supreme Court stated, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." Id. at 642 (emphasis added). In direct contravention, Defendants seek to prescribe what "shall be orthodox" in matters of opinion by permitting teachers to express personal,

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non-curricular messages that promote certain favored ideologies, religions, and partisan viewpoints on controversial political and social issues, while censoring certain disfavored [*2] viewpoints, such as Plaintiff's allegedly "Christian" viewpoint. As a result of Defendants' speech restriction, that "fixed star" in our constitutional constellation has been obscured and an official orthodoxy prescribed.
In the final analysis, accepting Defendants' tendentious view of the law and facts of this case would require this court to disregard fundamental principles of constitutional law. This court previously rejected Defendants' legal arguments in its order denying their motion to dismiss (Doc. No. 25), and should similarly reject those arguments here.
STANDARD OF REVIEW
Rule 56 provides that a motion for summary judgment should be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When reviewing Defendants' motion, this court must view the evidence, all facts, and inferences that may be drawn from the facts in the light most favorable to Plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
STATEMENT OF FACTS [*3]
Plaintiff is currently a public school math teacher at Westview High School in the Poway Unified School District (hereinafter "School District"). He has taught math in the School District for more than 30 years. During these 30 plus years, he has taught at 3 different high schools in the district, including Mt. Carmel High School (1977 to 1989), Rancho Bernardo High School (1990 to 2002), and now Westview High School (2003 to present). (SOMF at PP 1-4). n1 Plaintiff has a strong reputation as a teacher; he continues to be one of the highest rated math teachers at Westview High School. (SOMF at P 19).

n1 "SOMF" refers to Plaintiff's Statement of Undisputed Material Facts in Support of Motion for Summary Judgment and associated exhibits, which were previously filed in this matter and can be found at Doc. Nos. 43 through 54. In order to avoid unnecessary and costly duplication, Plaintiff has not re-filed those numerous exhibits here, but instead relies on the "the pleadings, the discovery and disclosure materials on file" in this opposition. Fed. R. Civ. P. 56(c).
[*4]
The School District believes that public schools play an important role educating and guiding our youth through the marketplace of ideas and instilling national values. One method the School District uses to accomplish this task is to permit students to be exposed to the rich diversity of backgrounds and opinions held by its high school faculty. n2 (SOMF at PP 63, 64).

n2 For example, the School District permits its teachers to participate in the "day of silence"-a pro-gay rights activity-on School District property with the students so long as the teacher's participation does not disrupt the teaching of his or her classes. (SOMF at P 65).
Accordingly, for the past 30 plus years, the School District has adopted a policy, practice, and/or custom of permitting teachers to display in their classrooms various non-curricular messages and other items that reflect the individual teacher's personality, opinions, and values regarding a wide range of interests and subject matter. Consequently, for the past 30 [*5] plus years, the classroom walls have served and continue to serve as a forum for

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teachers to convey personal, non-curricular messages on subjects that interest them. (SOMF at PP 35-50).
Pursuant to this long-standing School District policy, practice, and/or custom, teachers have displayed and continue to display in their classrooms such non-curricular materials as posters of rock bands and musicians; a poster of the controversial song Imagine written by John Lennon; posters of various professional athletes and professional sports teams; family photographs; non-student artwork; posters and other items, such as bumper stickers, decals, and buttons, promoting and advocating a viewpoint on social and political issues such as gay rights, global warming, animal research, the environment, anti-war/peace, the military, and others. (SOMF at PP 36-39, 42-50).
Pursuant to this policy, practice, and/or custom, the School District has allowed teachers to display Tibetan prayer flags, which are considered sacred items by those who practice the religion of Buddhism. n3 Teachers have also displayed and continue to display nature pictures; inspirational messages on posters and banners; patriotic [*6] messages on posters, banners, and flags; movie posters; posters of famous religious leaders, such as Gandhi (Hindu), the Dali Lama (Buddhist), and the controversial Malcolm X (the Nation of Islam/Islam); and items of particular political parties and/or candidates, including a campaign poster of candidate Obama, a Newsweek magazine cover of the candidates Obama and Biden; and a poster of the "Libertarian Party." (SOMF at PP 36-39, 42-50, 53-54). The School District admits that these displayed items express a personal message on behalf of the individual teacher and not on behalf of the School District. (SOMF at PP 55, 56, 62).

n3 Buddhists believe that these flags impart a spiritual blessing upon those in the presence of the flags. (SOMF at P 53).
Permissible subject matter for this forum for teacher speech include, inter alia, the foundations of our Nation, patriotic messages, inspirational messages, historical messages, and slogans that are praiseworthy of our Nation. (SOMF at P 37). And, as Defendants [*7] admit in their statement of undisputed facts, "[R]eligion is not a category of items prohibited from classroom walls." (Doc. No. 55).
Pursuant to this School District policy, practice, and/or custom, for approximately 25 years Plaintiff continuously displayed, without any objections from the School District or its administrators, on his classroom walls various patriotic banners that reflect the history and heritage of our Nation. Plaintiff had the banners made to order by a private company and purchased them with his own personal funds. The banners do not belong to the School District; they are Plaintiff's personal items. (SOMF at PP 20-23).
Plaintiff's banners contain well-known historical, patriotic phrases and slogans central to our Nation's history and heritage, and they reflect the foundations of our Nation. The banners do not contain quotes or passages from Sacred Scripture or any other religious text. (SOMF at PP 68-88).
The classrooms in which Plaintiff's banners were displayed were assigned to him. His current classroom in Westview High School is his classroom for homeroom and academic classes. He also uses his classroom for non-curricular and extra-curricular activities. [*8] (SOMF at P 25). As a matter of School District policy, practice, and/or custom, teachers are given discretion and control over the various non-curricular messages displayed on their classroom walls. For example, no teacher is permitted to display materials or messages on Plaintiff's classroom walls without his permission, and the School District does not direct the teachers' non-curricular displays; it is up to the individual teacher. (SOMF at PP 32-34).
Plaintiff's banners contain the following well-known historical, patriotic phrases: "In God We Trust," the official motto of the United States; "One Nation Under God," the 1954 amendment to the Pledge of Allegiance; "God Bless America," a patriotic song; "God Shed His Grace On Thee," a line from "America the Beautiful," a patriotic song; and

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"All Men Are Created Equal, They Are Endowed By Their Creator," an excerpt from the preamble to the Declaration of Independence. n4 (SOMF at PP 68-88). Consequently, the subject matter of Plaintiff's speech was permissible in this forum. (SOMF at PP 37, 103, 104).

n4 Defendants' claim that the historic phrases and slogans quoted by Plaintiff were out of "context" is nonsense. (Defs.' Mem. at 7). First, as Defendants acknowledge, the quoted phrases and slogans are well known; there is no need for any extra "context." (SOMF at P 74). Second, Defendants do not impose this "context" requirement on other teacher speech, including speech that selectively quotes from the very same historic documents quoted by Plaintiff. (SOMF at P 38). And third, Plaintiff was willing to display the additional historic "context" documents provided by Defendants alongside his banners, but Defendants refused, demonstrating that their argument was mere pretext. (Johnson Decl. at P 3 at Ex. 1).
[*9]
Plaintiff's banners were not displayed pursuant to any of his official duties as a teacher. He did not use his banners during any classroom session or period of instruction. They were not discussed or studied. They caused no material disruption or disorder in his classroom or anywhere else in the school. They did not interfere with his teaching. And they were not expressing a message on behalf of the School District. (SOMF at PP 26-27, 60-63, 90, 98).
Plaintiff's long-standing practice of displaying his banners came to an abrupt end when in January, 2007, Defendants ordered Plaintiff to take them down. n5 Defendants directed Plaintiff to remove his banners because they believed that the banners were promoting a "Christian" or "Judeo/Christian" viewpoint. On behalf of the School District, Defendant William Chiment, Assistant Superintendent at the time, n6 sent a letter to Plaintiff explaining the order to remove the banners. In the letter, Defendant Chiment stated that Plaintiff's banners conveyed an impermissible "sectarian viewpoint" and, more specifically, "a particular sectarian viewpoint." The "particular sectarian viewpoint" noted in the letter was referring to the viewpoint [*10] of "those religious groups who refer to a supreme being as God," such as Christians. Defendant Dawn Kastner, Plaintiff's principal at Westview High School, believed that Plaintiff's banners were impermissible because they expressed a "Christian" viewpoint. (SOMF at PP 91-96, 100). Meanwhile, Defendants had no objection to a science teacher displaying a 40-foot string of Tibetan prayer flags, which are sacred items that promote the Buddhist religion. (SOMF at PP 53, 54). Defendants acknowledge that these prayer flags "are non-curricular personal items in nature" (Defs.' Mem. at 19), similar to Plaintiff's banners.

n5 Prior to the School District's order to remove the banners in 2007, the School District received no complaints about the banners from students, teachers, parents, or School Board members. The only complaint to the School District came from Defendant Kastner in the fall of 2006, and this complaint resulted in the removal of the banners. (SOMF at P 29). n6 Defendant Chiment's present title is "Associate Superintendent." (See SOMF at P 13).
[*11]
At the time Defendants directed Plaintiff to remove his banners, they had no evidence that the banners caused any material disruption or disorder in the School District. Defendants' removal of Plaintiff's banners was not curriculum related; Plaintiff was teaching and continues to teach his assigned mathematics curriculum. Defendants singled out Plaintiff for disfavored treatment because of the viewpoint expressed by his message. (SOMF at PP 98-100, 102, 105). And the decision to order Plaintiff to remove his banners was approved by all Defendants, including the Superintendent and the School Board. (SOMF at PP 5-18, 97).

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Plaintiff wants to display his banners in his classroom; however, Defendants have prohibited him from doing so. Had Plaintiff not complied with Defendants' order to remove his banners, Plaintiff would have been subject to some form of disciplinary action for insubordination. (SOMF at PP 101, 106).
ARGUMENT
I. Defendants Violated Plaintiff's First Amendment Right to Freedom of Speech.
A. Defendants' Arguments "Shed" Plaintiff of His Constitutional Rights.
While Defendants claim that they do "not disagree that public school teachers have First [*12] Amendment rights" (Defs.' Mem. at 8), their arguments suggest otherwise. It is without dispute that Defendants created a forum for personal, non-curricular teacher speech. However, Defendants now seek to avoid this inconvenient fact (and controlling law) so as to keep this forum open for favored opinions and viewpoints, while retaining the power to censor viewpoints they dislike. From a legal (and educational) perspective, Defendants arguments are troubling.
As an initial matter, there is no dispute that:
(1) Plaintiff, a public school teacher, does not "shed [his] constitutional rights to freedom of speech or expression at the school house gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) ("First Amendment rights . . . are available to teachers and students."); Morse v. Frederick, 551 U.S. 393, 403 (2007) ("In Tinker, this Court made clear that 'First Amendment rights applied in light of the special characteristics of the school environment' are available to teachers and students."); Perry Educ. Ass'n v. Perry Local Educators, 460 U.S. 37, 44 (1983) ("The First Amendment's guarantee of free speech [*13] applies to teacher's mailboxes as surely as it does elsewhere within the school . . . .");
(2) Plaintiff's banners constitute speech. See Hill v. Colorado, 530 U.S. 703, 715 (2000) ("[S]ign displays . . . are protected by the First Amendment"); United States v. Grace, 461 U.S. 171, 176-77 (1983) (demonstrating with signs and banners constitutes speech under the First Amendment); Brown v. California Dep't of Transp., 321 F.3d 1217 (9th Cir. 2003) (enjoining policy restricting the display of signs or banners on highway overpass fences under the First Amendment);
(3) Defendants created a forum for teachers to express personal, non-curricular messages;
(4) Displaying banners, such as Plaintiff's banners, is a form of expression that is permitted in the forum;
(5) Plaintiff's banners, which were displayed without objection for 25 years, did not disrupt the classroom nor materially interfere with the basic educational mission of the School District. See Tinker, 393 U.S. at 513 (holding that the "special characteristics of the school environment" permit restrictions on speech only so long as the speech "materially and [*14] substantially disrupt[s] the work and discipline of the school"); Grayned v. City of Rockford, 408 U.S. 104 (1972) (same); and
(6) Plaintiff's constitutional rights are implicated by Defendants' speech restriction. n7 See Perry Educ. Ass'n, 460 U.S. at 44 ("There is no question that constitutional interests are implicated by denying [appellee] use of the interschool mail system."); Keyishian v. Board of Regents, 385 U.S. 589, 605-06 (1967) ("[T]he theory that public employment . . . may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.").

n7 The challenged speech restriction, whether based on the (mis)application of School District policy or not (see Defs.' Mem. at 14), is a choice attributable to the government, thereby triggering constitutional protection. See Lee v. Weisman, 505 U.S. 577, 587 (1992) (holding that a school official's decision to permit a member of the

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clergy to give an invocation and benediction at the school's graduation ceremony was "a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur").
[*15]
In sum, Defendants' request that this court eschew a forum analysis in favor of a "balancing" test in which Defendants have their fingers on the scale effectively strips Plaintiff of his fundamental rights and undermines the values protected by the First Amendment.
B. Defendants Created a Forum for Plaintiff's Speech.
There is no escaping the fact that this is a forum analysis case-not a Pickering balancing case-because Plaintiff is seeking to use government property (his classroom walls) for non-curricular, personal expression pursuant to a longstanding School District policy, practice, and/or custom of permitting teachers to use this forum for such speech. A practice that the School District does not deny. n8

n8 There are some recognizable limits that the courts have upheld in a school setting. For example, the School District could prohibit speech that promotes illegal drug use (or underage alcohol consumption, for that matter (see Defs.' Mem. at 3 (prohibiting a picture of a family drinking alcohol heavily)), see Morse, 551 U.S. at 408-09; that "materially and substantially disrupt[s] the work and discipline of the school," Tinker, 393 U.S. at 513, such as items prohibited by an anti-harassment policy; or that is sexually suggestive, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 678 (1986). Under Supreme Court precedent, the School District could also restrict speech that "incite[s] to imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444, 449 (1969). None of these limitations apply to Plaintiff's patriotic expression.
[*16]
The U.S. Supreme Court, no less, "has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800 (1985) (emphasis added); see Flint v. Dennison, 488 F.3d 816, 828-30, n.9 (9th Cir. 2007) (conducting a forum analysis in a case seeking review of a public school speech restriction); Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044, 1048 (9th Cir. 2003) ("To analyze his [First Amendment free speech] claim, we must first consider what type of forum the [School] District has created.").
Consequently, contrary to Defendants' assertion, to determine the extent of Plaintiff's free speech rights on School District property, the court must engage in a First Amendment forum analysis. Arizona Life Coal., Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir. 2008) ("The first step in assessing a First Amendment claim relating to private speech on government property is to identify the nature [*17] of the forum.") (internal quotations omitted); see also Perry Educ. Ass'n, 460 U.S. at 44 (applying a forum analysis in a case involving a public school speech restriction and noting that "[t]he First Amendment's guarantee of free speech applies . . . within the school and on sidewalks outside") (internal citation omitted).
Oddly, Defendants rely heavily on Berry v. Department of Soc. Serv., 447 F.3d 642 (9th Cir. 2006), to argue that the Pickering balancing test should apply to the facts of this case. However, in Berry the Ninth Circuit applied a forum analysis to determine the constitutionality of the government's restriction on the use of its facilities for the plaintiff's speech (as opposed to the Pickering balancing test the court applied to evaluate the restriction of plaintiff's speech when counseling clients of the department). Defendants mistakenly seek to dismiss the application of a forum analysis by erroneously concluding that Plaintiff "does not contend that the District is restricting use of school facilities, so the

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forum analysis does not apply here." (Defs.' Mem. at 10, n.3). To the contrary, this is exactly what [*18] Plaintiff is asserting: Defendants have opened the use of its facilities for teachers to express personal, non-curricular messages, but are now denying Plaintiff access to this forum based on his viewpoint. In their argument Defendants acknowledge, albeit unwittingly, the illegitimacy of their claims.
Thus, it would be error to accept Defendants' invitation to ignore controlling law, which compels a forum analysis under the facts of this case. See Flint, 488 F.3d at 828-30, n.9 (noting that it is error to not conduct a forum analysis and further noting that the U.S. Supreme Court has reinforced "the conclusion that we must analyze [the public school speech restriction at issue] within the confines of traditional forum analysis"). In Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988), for example, the Supreme Court applied its forum analysis in the context of a public high school. The Court specifically noted that school facilities-such as the classroom walls in this case-could be deemed "public forums" for First Amendment purposes if school authorities "by policy or by practice" opened those facilities for use "by some segment of the [*19] public, such as student organizations"-or, as here, teachers. Id. See Perry Educ. Ass'n, 460 U.S. at 37 (applying a forum analysis to determine the constitutionality of a speech restriction applied to the interschool mail system and teacher mailboxes in a public school district).
"Forum analysis has traditionally divided government property into three categories: public fora, designated public fora, and nonpublic fora." Flint, 488 F.3d at 830 (citation omitted). "Once the forum is identified, we determine whether restrictions on speech are justified by the requisite standard." Id. "On one end of the fora spectrum lies the traditional public forum, 'places which by long tradition . . . have been devoted to assembly and debate.' Next on the spectrum is the so-called designated public forum, which exists '[w]hen the government intentionally dedicates its property to expressive conduct.'" Id. (citations omitted). As the Supreme Court stated, "[A] public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion [*20] of certain subjects." Cornelius, 473 U.S. at 802 (emphasis added). In a traditional or designated public forum, restrictions on speech are subject to strict scrutiny. Flint, 488 F.3d at 830.
In Widmar v. Vincent, 454 U.S. 263 (1981), for example, the Court held that a state university, which made its facilities generally available for the activities of registered student groups (similar to this case, the university's facilities were not open to the general public), may not close its facilities to a student group based on the content of the group's speech. Id. at 264-65, 267 n.5. The Court stated, "Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms . . . even if it was not required to create the forum in the first place." Id. at 267-68 (emphasis added). The Court considered the forum to be a designated public forum, applied strict scrutiny, and struck down the regulation. Id. at 270 & 277. [*21]
In this case, the School District created a forum generally open "for use by certain speakers," thereby creating a forum for "non-curricular personal" speech of its teachers. And because Defendants singled out Plaintiff's expression for exclusion from this forum based not only on its content (which is fatal), but its viewpoint (which is doubly fatal), this court should apply strict scrutiny and strike down the challenged restriction.
Nonetheless, "[a]t the opposite end of the fora spectrum is the non-public forum. The non-public forum is '[a]ny public property that is not by tradition or designation a forum for public communication.'" Flint, 488 F.3d at 830 (citations omitted). In a nonpublic forum government restrictions are subjected to less-exacting judicial scrutiny. There a government may restrict free speech if it acts reasonably and does not suppress expression merely because public officials oppose the speaker's view. Id. (citations omitted).
The Ninth Circuit also recognizes a "limited public forum" as a subcategory of the designated public forum. See id. at 830-31. A "limited public forum" is "a type of nonpublic forum that the [*22] government has intentionally opened to certain groups or to certain topics." Id. at 831. "Once a government has opened a limited forum, it must respect the lawful boundaries it has itself set." n9 Id. at 831 (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

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819, 829 (1995)) (internal quotations and punctuation omitted). Accordingly, in a limited public forum "the government may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may the government discriminate against speech on the basis of its viewpoint." Flint, 488 F.3d at 831 (citations and quotations omitted).

n9 Certainly, if Defendants wanted to take the draconian step of removing all personal expressive items from the classroom walls, thereby closing the forum to all speech, it could do so. But once it has created this forum, it cannot pick and choose based on the viewpoint of the speaker which messages are acceptable and which are not.
[*23]
Here, the undisputed evidence shows that pursuant to a long-standing policy, practice, and/or custom, the School District created, at a minimum, a "limited public forum" that is open for use by teachers, including Plaintiff, to express a variety of messages, including personal, non-curricular messages. Pursuant to this policy, practice, and/or custom, teachers displayed and continue to display on their classroom walls messages that reflect the individual teacher's personality, opinions, and values with regard to a wide range of subject matter, including social and political concerns. Permissible subject matter include, inter alia, patriotic messages, historical messages, inspirational messages, religious messages, and messages regarding the foundations of our Nation. Pursuant to this policy, practice, and/or custom, teachers have discretion and control over the messages they wish to convey in this forum.
C. Defendants' Viewpoint Restriction Violates the First Amendment.
Viewpoint discrimination is prohibited in all forums because it is an egregious form of content discrimination. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)). [*24] Pursuant to controlling case law, if certain speech "fall[s] within an acceptable subject matter otherwise included in the forum, the State may not legitimately exclude it from the forum based on the viewpoint of the speaker." Cogswell v. City of Seattle, 347 F.3d 809, 815 (9th Cir. 2003). Viewpoint discrimination occurs when the government "denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Cornelius, 473 U.S. at 806.
Because Defendants singled out Plaintiff's speech based on his viewpoint, Defendants' speech restriction cannot survive constitutional scrutiny. (See also Doc. No. 25 (Order Denying Mot. to Dismiss) at 13-14 (citing Rosenberger, 515 U.S. at 819; Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107-08 (2001); Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007); Truth v. Kent Sch. Dist., 524 F.3d 957, 973(9th Cir. 2008) (observing that in a public high school limited public forum [*25] "where restriction to the forum is based solely on . . . religious viewpoint, the restriction is invalid")).
Indeed, "[r]estrictions on free expression in a nonpublic forum are constitutional only if the distinctions drawn are (1) 'reasonable in light of the purpose served by the forum,' and (2) 'viewpoint neutral.'" Brown v. California Dep't of Transp., 321 F.3d 1217, 1222 (9th Cir. 2003) (quoting Cornelius, 473 U.S. at 806); Perry, 460 U.S. at 46 (stating that speech restrictions in a nonpublic forum must be reasonable and viewpoint neutral)).
As noted previously, Defendants' speech restriction fails the viewpoint neutrality prong, and is thus unconstitutional for that reason alone. n10 Nonetheless, it also fails the "reasonableness" prong.

n10 The Ninth Circuit has also "incorporated 'viewpoint neutrality' analysis into nonpublic forum, school-sponsored speech cases . . . ." Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1010 (9th Cir.

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2000) (citing Planned Parenthood v. Clark County Sch. Dist., 941 F.2d 817, 828 n. 19, 829-30 (9th Cir. 1991)).
[*26]
The "reasonableness" prong "focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated." Brown, 321 F.3d at 1222 (internal quotations and citation omitted). Here, Plaintiff's speech did not disrupt school work, nor did it cause material disorder or interference in the classroom. And Defendants' order to remove the banners was not curriculum related; Plaintiff's banners were not displayed as part of his official duties as a teacher nor were they part of his math curriculum, which he continues to teach today. The banners have never prevented Plaintiff from teaching his math curriculum, nor have they limited him in any way in the teaching of his classes. In fact, Plaintiff was and continues to be one of the highest rated math teachers at Westview High School.
In sum, Defendants cannot readily allow personal posters of rock bands and sports teams, personal posters promoting a particular viewpoint on controversial political issues such as gay rights or global warming, large (35 to 40 feet) displays of sacred Tibetan prayer flags, and the host of other displays and viewpoints permitted, but then prohibit Plaintiff's [*27] patriotic banners, which were displayed without objection for 25 years, without running afoul of the First Amendment. Whether the classroom walls are a "designated public forum," a "limited public forum," or a "nonpublic forum" it makes little difference. Defendants' viewpoint-based restriction on Plaintiff's speech violates the First Amendment.
II. Pickering/Berry/Garcetti Do Not Justify Defendants' Speech Restriction.
Defendants improperly eschew any forum analysis in favor of applying the "balancing test" set forth in Pickering v. Board of Educ., 391 U.S. 563 (1968), Berry v. Department of Soc. Serv., 447 F.3d 642 (9th Cir. 2006), and Garcetti v. Ceballos, 547 U.S. 410 (2006). n11 Not only is this error, as noted previously, but these cases are inapplicable here because none of them address a situation in which the government has opened a forum for certain expressive activity, but then prohibits a speaker from expressing an appropriate message in the same forum based on his viewpoint. Indeed, the Ninth Circuit did not rely on the Pickering balancing test to reach its conclusion in Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1010 (9th Cir. 2000), [*28] a teacher speech case. n12

n11 The Pickering test essentially seeks to balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Connick v. Myers, 461 U.S. 138, 140 (1983) (quoting Pickering, 391 U.S. at 568). n12 While distinguishable on its facts, Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000), demonstrates the constitutional violation in this case. Downs upheld a school district's restriction on a teacher's ability to change the viewpoint expressed by the school district on its "Gay and Lesbian Awareness" bulletin boards. In Downs, the Ninth Circuit held that the bulletin boards in question were nonpublic forums and that the speech in question was government speech made pursuant to a specific school district policy related to the "Gay and Lesbian Awareness Month." The court stated, "We do not face an example of the government opening up a forum for either unlimited or limited public discussion," and explicitly found that "[t]he bulletin boards served as an expressive vehicle for the school board's policy of 'Educating for Diversity.'" Id. at 1012. Accordingly, the court held that the speech was government speech; therefore, viewpoint neutrality did not apply. Id. In this case, there is no dispute that the speech at issue is Plaintiff's speech, so viewpoint neutrality does apply.
[*29]
Similarly, as noted previously, Defendants' reliance on Berry v. Department of Soc. Serv., 447 F.3d 642 (9th Cir. 2006), is misplaced. Indeed, Defendants improperly criticize this court for relying on forum analysis cases that they

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claim do not involve "a public employer's limitation on an employee's speech." (Defs.' Mem. at 9). However, Berry, which is an "employee speech" case, did use a forum analysis when deciding whether or not the employer's restriction on the use of its facilities for the employee's speech violated the First Amendment. Id. at 652-54. n13 Because this case involves the restriction on Plaintiff's use of government facilities for his personal, non-curricular speech, Berry confirms that a forum analysis is proper.

n13 The Ninth Circuit applied the Pickering balancing test "to the Department's restriction on Mr. Berry's speech with clients." Berry, 447 F.3d at 652-54. And with scant analysis, the court upheld the restriction on the plaintiff's "Happy Birthday Jesus" sign and the display of his Bible in the cubicle that he uses to counsel clients, claiming "that the Department's restrictions on the display of religious items are reasonable under the Pickering balancing test." Id. at 651. Consequently, the court treated the displays as an extension of the plaintiff's speech with the Department's clients.
Unlike the present case, in Berry there was no evidence or argument that the government created a forum for the cubicle displays. And the court considered the restriction to be one based on subject matter, not viewpoint. In this case, Plaintiff's speech was personal, non-curricular speech. His banners were displayed pursuant to a long-standing policy, practice, and/or custom of allowing teachers to express personal, non-curricular messages on their classroom walls-a forum opened by Defendants for this purpose. The banners were not displayed pursuant to any of his official duties as a teacher. He did not use them during any classroom session or period of instruction. They were not discussed or studied in any of his classes. They caused no material disruption or disorder in the school. They did not interfere with the teaching of his classes. They were not expressing a message on behalf of the School District. And Defendants' restriction was viewpoint based. (SOMF at PP 26-27, 60-63, 90, 98). Neither Pickering nor Berry apply to these facts.
[*30]
Moreover, in its latest application of the Pickering test, the Supreme Court in Garcetti expressly stated that its analysis did not apply in a school setting. Garcetti, 547 U.S. at 425; Lee v. York County Sch. Divs., 484 F.3d 687, 694 n.10 (4th Cir. 2007) (refusing to apply Garcetti in a case involving teacher speech and instead applying Pickering in light of circuit precedent and noting that if the teacher's speech was not curriculum related, then school officials could not regulate it unless it "materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school") (quoting Tinker, 393 U.S. at 509).
Nevertheless, even if this court were to apply a Pickering balancing test to the facts of this case, Defendants' speech restriction would still violate the First Amendment. The only justification offered by Defendants for the restriction is that they believe the Establishment Clause requires it. This claim does not survive even modest scrutiny. Indeed, Defendants assert that the Constitution requires them to ban Plaintiff's personal patriotic speech, which [*31] Plaintiff expressed without complaint for 25 years, n14 because of its viewpoint, while a science teacher's Buddhist speech is acceptable. n15 This assertion is untenable and should be rejected. See, e.g., Widmar, 454 U.S. at 273 (rejecting Establishment Clause "defense" for speech restriction); Rosenberger, 515 U.S. at 841-42 (rejecting Establishment Clause "defense" for speech restriction); Tucker v. California Dep't of Educ., 97 F.3d 1204, 1212-13 (9th Cir. 1996) (rejecting Establishment Clause "defense" for employee speech restriction). As discussed more fully in Section III below, Defendants' speech restriction, which disfavors Christianity, but favors Buddhism, violates the Establishment Clause.

n14 See Van Orden v. Perry, 545 U.S. 677, 699, 702 (2005) (Breyer, J., concurring) (finding the fact that the Ten Commandments monument was on display for 40 years without complaint "suggest[s] more strongly than

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can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument" as promoting religion). [*32]
n15 Defendants make the outlandish claim that Plaintiff's patriotic messages serve no valid secular purpose and are therefore impermissible, but the 40-foot display of sacred Tibetan prayer flags by a science teacher in her classroom are permissible because they "have the secular purpose of motivating her students to achieve lofty goals, like mountain climbers trying to reach Everest's summit." (Defs.' Mem. at 20). Why is it that Plaintiff's banners do not motivate students to be patriotic and to love their country?
At the end of the day, Defendants are not interested in balancing any interests or closely analyzing the significant First Amendment interests at stake. They simply-and incorrectly-label Plaintiff's speech as "religious" and then erroneously conclude that the First Amendment (Free Speech Clause) not only allows their viewpoint restriction, but it (Establishment Clause) requires it. But see Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (O'Connor, J.) (noting the "crucial difference between government speech endorsing religion, which the Establishment [*33] Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect"). However, simply claiming that the Establishment Clause requires this speech restriction does not make it so. Indeed, it is time for the courts to put an end to this reflexive (and thinly veiled hostility toward Christianity) response by government officials to anything that is remotely related to (the Christian) religion. Defendants' reliance on this shopworn excuse to ban the display of Plaintiff's well-known, historic patriotic phrases is patently incorrect. n16 In fact, the School District itself could use some education regarding the First Amendment. As the Ninth Circuit stated in Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044, 1055 (9th Cir. 2003), "We agree with the Seventh Circuit that the desirable approach is not for schools to throw up their hands because of the possible misconceptions about endorsement of religion, but that instead it is 'far better to teach students about the first amendment, about the difference between private and public action, about why we tolerate divergent views. The school's proper response is to educate [*34] the audience rather than squelch the speaker.'" (quoting Hedges v. Wauconda Cmty. United Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993)) (internal punctuation omitted).

n16 Consider this rhetorical question: could a school district justify a practice of firing (or refusing to hire) Christian teachers based on the simple claim by school officials that this employment practice was necessary in their view to prevent an Establishment Clause violation?

III. Defendants' Restriction Violates the Establishment Clause.
As an initial matter, Defendants incorrectly frame the Establishment Clause issue as follows: "Johnson contends that Defendants have violated the Establishment Clause of both the United States and California constitutions by attempting to coerce him to change his religious belief." (Defs.' Mem. at 16). Similarly, Defendants' anemic evaluation of Plaintiff's claim demonstrates a misapprehension of the material facts and relevant law; a misapprehension that evidently [*35] guided their illicit decision to ban Plaintiff's speech in the first instance.
In 1952, the United States Supreme Court acknowledged the following historical reality: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952). From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion's role in American life. Examples of this historical acknowledgment include Executive Orders recognizing religiously grounded National Holidays, such as Christmas and Thanksgiving, Congress directing the President to proclaim a National Day of

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Prayer each year, and the printing on our currency of the national motto, "In God We Trust." As the United States Supreme Court acknowledged in Lynch v. Donnelly, 465 U.S. 668, 677-78 (1984):
One cannot look at even this brief resume [of historical examples of public religious expression] without finding that our history is pervaded by expressions of religious beliefs. . . . Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility [*36] toward none. Through this accommodation, as Justice Douglas observed, governmental action has "follow[ed] the best of our traditions" and "respect[ed] the religious nature of our people." (quoting Zorach, 343 U.S. at 314).
Recognition of the role of God in our Nation's history and heritage is consistently reflected in Supreme Court decisions. The Court has acknowledged, for example, that religion has been closely identified with our history and government, and that the history of man is inseparable from the history of religion. Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound. As Justice O'Connor observed, "It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 35-36 (2004) (O'Connor, J., concurring).
Efforts to suppress this recognition and historical acknowledgment are the antithesis of the value of religious tolerance that underlies the United States and California Constitutions. And the classroom [*37] is peculiarly the "marketplace of ideas." As a result, the First Amendment does not tolerate governmental policies, practices, and/or customs that cast a pall of orthodoxy over the classroom, such as Defendants' restriction, which prohibits Plaintiff from displaying his banners based on the "particular sectarian viewpoint" conveyed by his message.
A. Defendants' Restriction Disfavors Religion.
Throughout its decisions, the Supreme Court has consistently described the Establishment Clause as forbidding not only state action motivated by a desire to promote or "advance" religion, see, e.g., County of Allegheny v. A.C.L.U., 492 U.S. 573, 592 (1989), but also actions that tend to "disapprove" of, "inhibit," or evince "hostility" toward religion. See Edwards v. Aguillard, 482 U.S. 578, 585 (1987); Lynch, 465 U.S. at 673; Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973).
As the Supreme Court noted in Epperson v. Arkansas, 393 U.S. 97, 104 (1968), "The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. [*38] " Indeed, even subtle departures from neutrality are prohibited. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993).
In School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), the Court stated, "We agree of course that the State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe." Id. at 225 (internal quotations and citation omitted). As Justice Breyer stated in his concurrence in Van Orden v. Perry, 545 U.S. 677, 699 (2005), "[T]he Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. Such absolutism is not only inconsistent with our national traditions, but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid." See also Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 532 ("In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official [*39] purpose to disapprove of a particular religion or of religion in general.").
Thus, a restriction that disfavors "religion in general"-or worse, one that disfavors "a particular sectarian viewpoint," such as the restriction at issue here-violates the neutrality mandated by the Establishment Clause.
B. Defendants' Restriction Disfavors a Particular Religion.

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In addition to mandating neutrality toward religion in general, the First Amendment also forbids hostility aimed at a specific faith (Christianity), particularly while favoring another (Buddhism). "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982); see also County of Allegheny, 492 U.S. at 608-09 (requiring "'strict scrutiny' of practices suggesting 'a denominational preference'"); Church of the Lukumi Babalu Aye, Inc, 508 U.S. at 532 ("[The Establishment Clause] forbids an official purpose to disapprove of a particular religion."); Epperson, 393 U.S. at 103-04 (stating that the government "may not be hostile to any religion"); [*40] Lynch, 465 U.S. at 673 ("[The Constitution] forbids hostility toward any" religion.).
Remarkably, even though Plaintiff's speech expressed messages that had historical significance and did not contain religious text, Defendants censored the speech because they claimed that the banners conveyed an impermissible "Christian" viewpoint (while permitting Buddhist prayer flags, no less). Leaving aside the inaccuracy of that claim, n17 Defendants violated the Establishment Clause by singling out Plaintiff's speech for disfavored treatment because they believed it conveyed "a particular sectarian viewpoint."

n17 Plaintiff's banners contain historical, patriotic phrases and slogans central to our Nation's history and heritage; the banners do not contain passages from Sacred Scripture or other religious texts. See, e.g., Lynch, 465 U.S. at 677-78; Elk Grove Unified Sch. Dist., 542 U.S. at 35-36 (O'Connor, J., concurring).
C. Defendants' Speech Restriction [*41] Violates Lemon and Its Modifications.
Defendants' speech restriction, which disfavored "a particular sectarian viewpoint," violates the Establishment Clause as to its purpose and effect. And it creates an impermissible entanglement. See Lemon v. Kurtzman, 403 U.S. 602 (1971).
1. The Purpose and Effect of Defendants' Restriction.
"The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid." See Lynch, 465 U.S. at 690 (O'Connor J., concurring).
"While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham." Edwards, 482 U.S. at 586-87. The secular purpose requirement "reminds government that when it acts it should do so without endorsing [or disapproving of] a particular religious belief or practice . . . ." Wallace v. Jaffree, 472 U.S. 38, 75-76 (1985). [*42] And "[t]he eyes that look to purpose belong to an 'objective observer,' one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute or comparable official act." McCreary County v. A.C.L.U., 545 U.S. 844, 862 (2005) (internal quotations omitted).
In this case, Defendants' stated purpose for their official act of removing Plaintiff's banners was to prohibit speech that, in their view, conveyed a "particular sectarian viewpoint," that being a "Christian" viewpoint. This purpose is not compelled by the Establishment Clause; rather, it is prohibited by it.
The "effect" of Defendants' restriction, irrespective of Defendants' alleged "purpose" for enforcing it, conveys a message of disapproval of religion (and the Christian religion in particular) in violation of the Establishment Clause. See Lynch, 465 U.S. at 690 (O'Connor J., concurring) ("The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval."). As the Supreme Court explained, when evaluating the effect of government action [*43] under the Establishment Clause, courts must

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ascertain whether the challenged action is "sufficiently likely to be perceived" as a disapproval of religion. County of Allegheny, 492 U.S. at 597 (citations omitted) (emphasis added); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307, n.21 (2000) ("[T]he Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions."). The clear effect of the speech restriction is to show disapproval of religion in violation of the Establishment Clause.
2. Defendants' Restriction Fosters an Excessive Entanglement.
The third prong of the Lemon test asks whether the restriction at issue excessively entangles government with religion. Lemon, 403 U.S. at 612-13. In Widmar v. Vincent, the Supreme Court explained: "[T]he University would risk greater 'entanglement' by attempting to enforce its exclusion of 'religious worship' and 'religious speech.' Initially, the University would need to determine which words and activities fall within 'religious worship and religious teaching.' This alone [*44] could prove an impossible task in an age where many and various beliefs meet the constitutional definition of religion." Widmar, 454 U.S. at 272 n.11. (internal quotations and citations omitted). Accordingly, Defendants' attempt to exclude speech expressing a "Christian" or "Judeo/Christian" viewpoint (while permitting "Buddhist" speech) creates "excessive entanglement" in violation of the Establishment Clause.
IV. Defendants Violated the California Constitution.
A. State Free Speech Claim.
Article 1, section 2 of the California Constitution generally provides broader protection for the exercise of free speech rights than the First Amendment. Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979). However, federal law is typically followed for free speech claims arising in a school setting. See California Teachers Ass'n v. Governing Bd. of San Diego Unified Sch. Dist., 45 Cal. App. 4th 1383, 1391 (1996) ("[W]e find the federal authorities which discuss First Amendment principles in the fairly unique context of school regulation of curricular activities accurately weigh the competing interests of school administrators, [*45] teachers and students."). Thus, for the reasons stated with regard to the First Amendment, Defendants have similarly violated the California Constitution.
B. California Establishment Clause and No Preference Clause Violations.
1. California Establishment Clause.
The California courts generally adopt the federal Establishment Clause analysis when considering cases under the California Constitution's similar provision. See Paulson v. Abdelnour, 145 Cal. App. 4th 400, 420 (2006) ("The construction given by California courts to the establishment clause of article I, section 4, is guided by decisions of the United States Supreme Court."). Accordingly, the previous analysis under the federal Establishment Clause demonstrates why Defendants' restriction also violates the California Constitution.
2. California No Preference Clause.
The Ninth Circuit has interpreted the California No Preference Clause "to stand for the proposition that not only may a government body not prefer one religion over another, it may not appear to be acting preferentially." Ellis v. City of La Mesa, 990 F.2d 1518, 1524 (9th Cir. 1993) (citation and quotations [*46] omitted). In this case, it is evident that Defendants' restriction, which singled out "Christian" or "Judeo/Christian" speech for disfavored treatment while permitting speech conveying other religious views, violates California's No Preference Clause.
V. Defendants' Viewpoint Restriction Violates the Equal Protection Clause.
Defendants misapprehend the nature of Plaintiff's equal protection claim. The relevant principle of law was articulated in Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92 (1972). In Mosley, the Court struck down a city ordinance that prohibited all picketing within 150 feet of a school, except peaceful picketing of any school involved in a

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labor dispute. The Court stated, "[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." See also Carey v. Brown, 447 U.S. 455, 461-62 (1980). Here, Defendants opened up a forum for teacher expression. Having maintained this forum for many decades, Defendants violated Plaintiff's [*47] rights when they prohibited his speech based on the viewpoint of his message, while permitting other teachers to continue their speech in the same forum unfettered.
VI. The Individual Defendants Do Not Enjoy Qualified Immunity.
"When government officials abuse their offices, 'action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.'" Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citation omitted). In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court held that government officials are protected from personal liability for civil damages only so long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. "This is not to say that an official action is protected by qualified immunity unless the very action in question has been previously held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640 (citation omitted); Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) ("Absent [*48] binding precedent, we look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. We also evaluate the likelihood that this circuit or the Supreme Court would have reached the same result."); Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) ("[W]hen 'the defendants' conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.") (citation omitted).
Plaintiff's right to engage in his speech free from viewpoint discrimination was clearly established. Consequently, the individual defendants do not enjoy qualified immunity, and Plaintiff is entitled to nominal damages as a matter of law. See Carey v. Piphus, 435 U.S. 247, 266-67 (1978); Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991).
CONCLUSION
For the foregoing reasons and for those stated in Plaintiff's motion for summary judgment (Doc. No. 43), Plaintiff respectfully requests [*49] that this court deny Defendants' motion.
Respectfully submitted,
THOMAS MORE LAW CENTER
By: /s/ Robert J. Muise Robert J. Muise, Esq. * Admitted pro hac vice Charles S. LiMandri, Esq. Counsel for Plaintiff Bradley Johnson
PLAINTIFF'S RESPONSE TO DEFENDANTS' STATEMENT OF UNDISPUTED MATERIAL FACTS
Pursuant to Local Rule 7.1, Plaintiff Bradley Johnson hereby responds to Defendants' Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (Doc. No. 55). In this response, "SOMF" refers to Plaintiff's Statement of Undisputed Material Facts in Support of Motion for Summary Judgment and associated exhibits, which were previously filed in this matter (Doc Nos. 43 through 54).
1. Bradley Johnson is a high school mathematics teacher, currently teaching at Westview High School, which is

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operated by the Poway Unified School District [hereinafter "School District"].
Response: Plaintiff does not dispute these facts. (See SOMF at PP 1-4).
2. Johnson is a Christian, and has taught with the District for 30 years.
Response: Plaintiff does not dispute these facts. (See SOMF at P 1).
3. Johnson is [*50] currently the adviser for the Christian club at Westview, and has held that role since 2005.
Response: Plaintiff does not dispute these facts.
4. Johnson was previously a Christian club advisor at schools where he taught previously.
Response: Plaintiff does not dispute these facts.
5. Johnson prominently displayed two banners in his classroom during Fall, 2006. Both banners were 7 feet long by 2 feet wide, and were "displayed in a non-obstructive manner."
Response: Plaintiff does not dispute these facts; however, he objects to Defendants' characterization that the banners were "prominently" displayed. True and accurate photographs of Plaintiff's banners and how they were displayed can be found at SOMF PP 20, 68, 70, 72-74 and the corresponding attached exhibits, specifically Exhibit B to Johnson's declaration at Exhibit 1. Moreover, Plaintiff displayed his banners not just during the Fall of 2006; he had continuously displayed his banners in the School District for approximately 25 years. (See SOMF at PP 20, 21, 68-72).
6. The first banner had red, white and blue stripes, and was emblazoned with the following messages in large block letters: [*51] "IN GOD WE TRUST"; "ONE NATION UNDER GOD"; "GOD BLESS AMERICA"; and "GOD SHED HIS GRACE ON THEE."
Response: Plaintiff does not dispute these facts; however, he objects to Defendants' characterization of how the message was displayed. See response to P 5 above.
7. The phrase "In God We Trust" is the official motto of the United States.
Response: Plaintiff does not dispute this fact. (See SOMF at PP 79-81).
8. The phrase "One Nation Under God" may be found in the Pledge of Allegiance.
Response: Plaintiff does not dispute the fact that the phrase "One Nation Under God" is in the Pledge of Allegiance, which is recited daily in the School District. (See SOMF at PP 82, 83).
9. The phrase "God Bless America" is a reference to the song of the same title written by Irving Berlin in the early 20th Century.
Response: Plaintiff does not dispute these facts, and notes that the song, "God Bless America," is not a religious song; it is a well-known patriotic song. Additionally, this phrase is commonly used in speeches by the President of the United States. (See SOMF at PP 85, 86).
10. The phrase "God Shed His Grace On Thee" is a [*52] reference from the song, "America the Beautiful."
Response: Plaintiff does not dispute this fact, and notes that the song, "America the Beautiful," is not a religious song; it is a well-known patriotic song. (See SOMF at P 88).
11. Mr. Johnson has had the striped banner with four phrases or one like it hanging in his classroom since 1982.

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Response: Plaintiff does not dispute these facts. (See SOMF at PP 70, 71).
12. The second banner reads in large font: "All Men Are Created Equal, They Are Endowed By Their CREATOR." This phrase is a misquote from the preamble to the Declaration of Independence, which states, in part: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Response: Plaintiff does not dispute the fact that this phrase is a quote from the Declaration of Independence. However, Defendants' claim that it is a "misquote" is incorrect-the quote reads on the banner as follows: first line, "All Men Are Created Equal"; second line, "They Are Endowed By Their"; and third [*53] line, "Creator." Thus, the word "that" was purposefully left out between the first and second printed lines because it makes the quote read more easily. (See SOMF at PP 38, 72, 84).
13. The word "Creator" on the "Declaration" banner is in ALL CAPS typeface about twice the size of the other words on the banner, which are in Initial Caps; the word "CREATOR" also occupies its own line of text.
Response: Plaintiff generally disputes Defendants' characterization of the banner and refers the court to the photographs of the banner for an accurate depiction of how the banner looks. See response to P 5 above. Moreover, this banner was displayed separate from the other banner, and it was displayed amongst numerous pictures depicting nature scenes. (See SOMF at P 72).
14. Johnson designed the layout of the "Declaration" banner so that the word "CREATOR" would be larger so that he could highlight that there was a supreme being who provided men with the rights described in the preamble to the Declaration of Independence.
Response: Plaintiff disputes Defendants' characterization of the purpose for the layout of the banner and asserts that he was highlighting what [*54] our Founding Fathers said in this historical document, which serves as a founding document for our Nation. (See SOMF at P 84; Johnson Dep. at 103, Ex. F to Defs.' Mot. (Doc. No. 55)).
15. Johnson had his "Declaration" banner made in 1989, and has displayed it thereafter in his classroom.
Response: Plaintiff does not dispute these facts. (See SOMF at P 72).
16. Johnson explained that the purpose of the two banners is for "celebrat[ing] our national heritage," "highlight[ing] the religious heritage and nature of our nation that we have as a foundation" and "espousing God as opposed to no God . . . but not any particular God."
Response: Plaintiff disputes this characterization of Plaintiff's purpose for the banners in that it is misleading. In his deposition, Plaintiff clearly stated, "These are historical patriotic expressions and mottos, and I'm highlighting that. The people who wrote them had a - some religious background. I don't know what it was, and I'm not intending to highlight or promote any of that kind of religious background because I don't know what it was. I'm trying to highlight the religious heritage and nature of our nation, [*55] that we have that as a foundation." (Johnson Dep. at 103, Ex. F to Defs.' Mot. (Doc. No. 55)) (emphasis added). Regarding the "espousing God as opposed to no God . . . but not any particular God," it is evident in his deposition that Plaintiff is pointing out the obvious fact that in these historical phrases, and in particular, the phrase from the Pledge of Allegiance, there is reference to "God," as opposed to no reference of "God," and this reference is not to any particular "God," (see Johnson Dep. at 95, Ex. F to Defs.' Mot. (Doc. No. 55)), which would be unlike Lori Brickley's Tibetan prayer flags, which specifically reference Buddha (and display an image of this "supreme" being of Buddhism). The School District has no objection to the posting of these prayer flags. (See SOMF at PP 53, 54).
17. Both banners were located on walls in Johnson's classroom where they can be easily seen and read from where students sit in Johnson's classroom.

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Response: Plaintiff does not dispute that his banners were posted on his classroom walls and that students, faculty, administrators, including principals and assistant principals, parents, and others who came into his classroom [*56] over the past 25 years could see them, along with all of the other items displayed on his walls. This is depicted in the photographs of Plaintiff's banners. See response to P 5 above. (See SOMF at PP 20, 29-31, 89).
18. Defendant William Chiment serves as the School's Associate Superintendent for Personnel Support Services, and has been in that position for ten years.
Response: Plaintiff does not dispute these facts. (See SOMF at 13-15).
19. According to Chiment, the District's informal practice is to permit teachers to decorate their classrooms with personal items such as posters, flags, or banners, within some limits.
Response: Plaintiff does not dispute the fact that the School District has created a forum for teacher speech. However, Plaintiff objects to its characterization as an "informal practice," since this has been the longstanding practice of the School District for at least 30 years. (See SOMF at PP 35-62).
20. But teachers' personal items cannot violate the School's anti-harassment policy.
Response: Plaintiff does not dispute the fact that the law permits the School District to limit certain subject matter of speech, [*57] and should speech "materially and substantially disrupt the work and discipline of the school" or "incite to imminent lawless action," it can be proscribed under the law.
21. Some of the other limits the School may also take into consideration are the size of the item, the age appropriateness of the particular item for the students in the classroom, and the potential relationship to the curriculum.
Response: Plaintiff generally disputes these facts. The School District imposes no size limits on the personal expressive items that teachers are permitted to display. Plaintiff acknowledges that if the size of a displayed item causes it to be obstructive, then size could be an appropriate basis for limiting the speech. However, Plaintiff's banners, as Defendants acknowledge, were displayed in a non-obstructive manner. Moreover, there were personal items that were permitted to be displayed that were significantly larger than Plaintiff's banners. And pursuant to School District policy, practice, and/or custom, teachers are permitted to display personal items that are unrelated to the curriculum. Here, Plaintiff's banners were similar in size (and even smaller) than other displays [*58] that were permitted; the banners were displayed in a non-obstructive manner; and they were non-curricular. See response to P 20 above. Plaintiff's facts are confirmed by the School District, and thus undisputed. (See SOMF at PP 35-62).
22. For example, teachers could exhibit family photographs, but photographs of a family drinking alcohol heavily would not be permitted by the School.
Response: Plaintiff does not dispute the fact that the law permits the School District to limit certain subject matter of speech, such as speech that promotes illegal drug use (or underage alcohol consumption). And should speech "materially and substantially disrupt the work and discipline of the school" or "incite to imminent lawless action," it can be proscribed under the law. Nonetheless, Plaintiff objects to this hypothetical situation as "fact" in this case. (See, e.g., SOMF at P 42).
23. The School also has a formal written policy regarding the teaching of controversial issues, which governs what teachers can post on their classroom walls.
Response: Plaintiff does not dispute the fact that the School District has a policy governing the teaching of controversial [*59] issues; however, this policy, on its face, does not address the display of personal, non-curriculum related messages, and it is certainly not applied in an evenhanded manner since there are numerous "controversial" personal items (e.g., posters addressing global warming, gay rights, etc.) displayed by teachers that the School District

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permits. By its own terms, the "controversial issues" policy addresses the "study or discussion" of issues that are "controversial." The policy defines a "controversial issue" as follows: "An issue is controversial when the question is debatable and when some of the proposed solutions conflict with the intellectual or emotional commitments of citizens to cherished interests, beliefs, or group loyalties." Consequently, this policy does not apply here: Plaintiff's banners do not meet the definition of a "controversial issue" in the first instance, and the banners were never part of any "study or discussion" in his classes. Indeed, the discriminatory way in which Defendants seek to apply this policy demonstrates that it was a mere pretext for banning personal viewpoints that school officials dislike. [*60] In sum, couching an official act in terms of a "policy" does not immunize the act from constitutional scrutiny. (See SOMF at PP 26, 27, 35-63, 90, 98, 99).
24. Poway Board Policy BP 3.11, provides, in part, that teachers must "exercise caution and discretion when deciding whether or not a particular issue is suitable for study or discussion in any particular class.["]
Response: Plaintiff does not dispute the fact that the board policy states what is represented here by Defendants. However, this policy does not apply because Plaintiff was not using his banners "for study or discussion in any particular class." See response to P 23 above.
25. Poway Board Policy 3.11 policy also "requires teachers to ensure that all sides of a controversial issue are impartially presented with adequate and appropriate factual information" and "[w]ithout promoting any partisan point of view."
Response: Plaintiff does not dispute the fact that the board policy states what is represented here by Defendants. However, this policy does not apply to Plaintiff's banners, and it is certainly not applied in an evenhanded manner since it is undisputed that Defendants permit [*61] numerous "controversial" personal items to be displayed in the classroom that do not "ensure that all sides of a controversial issue are impartially presented" and that do promote "partisan points of view." This court need look no further than Ms. Lori Brickley's science classroom to see that, if anything, Defendants are misusing the policy to silence viewpoints that they dislike in a forum the School District created for personal, non-curricular teacher speech. Indeed, the School District even permits Ms. Brickley to engage in a pro-gray demonstration ("day of silence") on school property during the school day alongside student participants. See response to P 23 above. (See also SOMF at P 65).
26. BP 3.11 has an attendant Administrative Procedure, entitled AP 3.11.2, that contains a section concerning the "Responsibilities of Teachers."
Response: Plaintiff does not dispute this fact. However, this procedure does not apply in this case and is thus not material. See responses to PP 23, 25 above.
27. Those responsibilities include "choos[ing] suitable and useful instructional materials," "direct[ing] class discussion to cover all points of [*62] view, distinguish[ing] between teaching and advocating, and refrain[ing] from using classroom teacher influence to promote partisan or sectarian viewpoints." (Plaintiff's partial emphasis).
Response: Plaintiff does not dispute the fact that the School District procedure states what is represented here by Defendants. However, this procedure does not apply in this case and is thus not material. See responses to PP 23, 25 above.
28. A.P. 3.11.2 also has a section on the rights of students, and expressly gives students the "right to form and express individual opinions on controversial issues without jeopardizing relations with teachers or others."
Response: Plaintiff does not dispute the fact that the School District procedure states what is represented here by Defendants. However, this procedure does not apply in this case and is thus not material. See responses to PP 23, 25 above.

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29. AP 3.11.2 also has a section entitled "The Selection of Issues." Within that section, the policy states that in general, "the decision as to whether a controversial issue should become a matter of school study should be based upon" ten listed criteria, [*63] including "1. It must contribute significantly to the objectives of the curriculum; . . . 6. The issue must involve alternate points of view which can be understood and defined by students; 7. The issue must be one about which information is present and available so alternatives can be discussed and evaluated on a factual and reasonable basis; . . . and 10. The issue must provide opportunity for critical thinking for the development of tolerance and the understanding of conflicting points of view, at the same time that it contributes to the prescribed course of study and the general educational program of the school." (Plaintiff's emphasis).
Response: Plaintiff does not dispute the fact that the School District procedure states what is represented here by Defendants. However, this procedure does not apply in this case and is thus not material. See responses to PP 23, 25 above.
30. Even non-curricular items are part of the learning environment and potentially advocating, and therefore such items (sic) subject to this written policy.
Response: Plaintiff disputes this fact, particularly insofar as Defendants seek to (mis)apply [*64] this policy to the personal, non-curricular items displayed by teachers in the forum created by the School District, such as Defendants application of this policy to silence Plaintiff's viewpoint on a permissible subject matter. See responses to PP 23, 25 above.
31. Sometimes the School receives complaints from parents about only one side of an issue being taught, and the School works with principals to ensure that teachers are teaching both sides of an issue. (Plaintiff's emphasis).
Response: Plaintiff does not dispute these facts. However, they are not material. Plaintiff does not use his banners when teaching any of his classes, as Defendants admit. (See SOMF at P 26, 27, 60-63, 90, 98).
32. In addition, it is Chiment's position that expression of religion within the District is proscribed by the law of the U.S. and State constitutions.
Response: Plaintiff does not dispute the fact that Defendant Chiment holds this opinion, which is contrary to clearly established constitutional law.
33. Chiment believes that the District's policies and procedures are consistent with the U.S. and State constitutions.
Response: Plaintiff [*65] does not dispute the fact that Defendant Chiment holds this opinion, which is incorrect. However, this opinion is not a fact, and it is not relevant. In this case, Defendant Chiment violated clearly established constitutional rights of which a reasonable person would have known.
34. Dawn Kastner serves as the Principal at Westview high School, and has been in that position since July 1, 2006.
Response: Plaintiff does not dispute these facts. (See SOMF at P 16).
35. Early in her tenure as principal (sometime in Fall 2006), Mr. Subbiah, a Westview teacher, raised a concern with Kastner about why Johnson was permitted to have those signs in his room; Kastner also heard about the banners from a student and another teacher. So Kastner went into Johnson's classroom and saw the banners for the first time.
Response: Plaintiff does not dispute the fact that this is what Defendant Kastner testified to in her deposition. However, it is not credible that Defendant Kastner, who was the assistant principal of Westview High School for an entire year prior to becoming principal, would on one hand say that the signs were so large that they are hard to miss, but [*66] on the other claim that she did not see them (or hear of them, including any complaints about them, as an administrator) until the Fall of 2006, an entire year later. (See SOMF at P 16; Kastner Dep. at 12, Ex. 4). Nonetheless,

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this does not justify the viewpoint-based restriction on Plaintiff's speech, which did not "materially and substantially disrupt the work and discipline of the school." (See SOMF at P 31, 66, 98, 99).
36. Kastner was concerned that the banners were very large, and inappropriately promoted a viewpoint advocating God, as the phrases were pulled out of their original context. (Plaintiff's emphasis).
Response: Plaintiff does not dispute the fact that Defendant Kastner imposed a viewpoint-based restriction on Plaintiff's speech (claiming that Plaintiff's banners expressed a "Christian" viewpoint). Moreover, the School District does not require "full context," whatever that might mean, for the quotes displayed by teachers on their classroom walls. For example, the School District permitted the display of numerous personal items that contained only partial quotes from the very documents that Plaintiff quoted. In sum, Plaintiff does [*67] not dispute the fact that Defendant Kastner may have had "concerns"; however, these concerns were unfounded in light of the facts and controlling law. (See SOMF at PP 38, 92, 96).
37. Kastner met with Johnson to discuss his banner. Kastner told Johnson that taking the phrases concerning God and putting them together in large print out of context was moving away from a patriotic comment to promotion of his religious beliefs that might make some student uncomfortable.
Response: Plaintiff does not dispute the fact that Defendant Kastner met with him and informed him that his personal banners had to be removed because, according to Defendant Kastner, the banners promoted a "Christian" viewpoint. Plaintiff disputes the facts that his display of well-known historical and patriotic phrases and slogans were "out of context" and that they promote his Christian religion. (See SOMF at PP 68-88, 92, 96).
38. Kastner suggested to Johnson that an Islamic student walking into the classroom may feel bad, and feel like he or she would not fit in; Johnson replied something to the effect of "sometimes that's necessary."
Response: Plaintiff does not dispute the fact that [*68] Defendant Kastner suggested to him that an Islamic student might not like (or might be uncomfortable with) our national motto or some of the other patriotic slogans or historical phrases that were displayed. Plaintiff's response reflects the fact that you can't change this historic reality, nor is it proper to deny it.
39. Johnson explained to Kastner that he felt strongly that he needed the signs to stay up, that he had a right to have the banners up, and that he'd had them up for a long time.
Response: Plaintiff does not dispute these facts. (See SOMF at P 101).
40. Kastner suggested to Johnson that he put the phrases on the banners in context, such as posting the entire Declaration of Independence.
Response: Plaintiff does not dispute the fact that Defendant Kastner made this odd suggestion (students know the context of the quotes; there is no need for extra "context"). Moreover, Plaintiff responded by stating that he would have no problem with putting up alongside his banners a copy of the Declaration of Independence. Defendants rejected his suggestion. (See SOMF at P 78; see also Johnson Decl. at P 3 at Ex. 1, attached to this response).
41. [*69] Kastner also suggested to Johnson that he reduce the scale of the banners to "something small around the desk area."
Response: Plaintiff does not dispute the fact that Defendant Kastner was asking him to make his banners smaller, thus reducing his speech. However, the School District does not impose this speech restriction on any of the other teachers. Indeed, Defendants permit a 35 to 40-foot display of Tibetan prayer flags. (See SOMF at PP 41-50, 53, 54, 57).

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42. Kastner contacted Melavel Robertson (Assistant Superintendent for Learning Support Services) for guidance on these "really big" signs.
Response: Plaintiff does not dispute the fact that Defendant Kastner contacted Ms. Robertson. However, Plaintiff does dispute Defendant Kastner's characterization of Plaintiff's banners as "really big." Moreover, this mischaracterization is not material since there are no size limits imposed on other teacher speech, and Plaintiff displayed his banners in a manner that was non-obstructive. See responses to PP 5, 21 above. (See SOMF at P 57).
43. Kastner's secretary took pictures of the banners and sent them to Robertson.
Response: Plaintiff does [*70] not dispute these facts.
44. Robertson was concerned with the size of the banners; she felt that students of different faiths may feel uncomfortable with a banner that large, and this was discussed amongst the School's cabinet-level administrators.
Response: Plaintiff does not dispute the fact that Ms. Robertson had concerns about Plaintiff's banners and the viewpoint expressed by them. However, her concerns about the size are irrelevant since the School District imposes no size restrictions on other teachers. Additionally, Defendants (including the "cabinet-level administrators") apparently had little "concern" about the 35 to 40-foot string of Tibetan prayer flags that are allowed to be displayed in Ms. Brickley's classroom, along with all of her partisan political messages on controversial issues such as global warming, gay rights, and zero population growth. (See SOMF at PP 53, 54, 57).
45. Robertson referred Kastner to speak with Mr. Chiment, as Chiment is the person within the School to deal with personnel concerns that might raise legal issues.
Response: Plaintiff does not dispute these facts.
46. Mr. Chiment spoke with Kastner and reviewed photographs [*71] of the banners in Mr. Johnson's classroom.
Response: Plaintiff does not dispute the fact that Defendants Chiment and Kastner reviewed photographs of Plaintiff's banners, and would add that Defendant Chiment never went into Plaintiff's classroom to view the banners in full context before ordering Plaintiff to remove them. (See Chiment Dep. at 32 at Ex. 3 to SOMF).
47. Ultimately, the decision to have Mr. Johnson remove his banners was made by Mr. Chiment.
Response: Plaintiff does not dispute this fact; however, this decision was approved and ratified by all Defendants, who remain liable for it. (See SOMF at PP 9, 12, 15, 18).
48. This decision was agreed to by the Superintendent's cabinet, which consists of Defendant Donald Philips (Superintendents) (sic), and the Deputy Superintendent, John Collins, Chiment, and the assistant superintendents.
Response: Plaintiff does not dispute these facts. (See SOMF at P 97).
49. Mr. Chiment asked Mr. Johnson by telephone to remove his banners on or about January 19, 2007.
Response: Plaintiff does not dispute this fact.
50. Mr. Chiment sent a letter to Johnson dated January 23, 2007, to [*72] confirm the decision to have Johnson remove his banners, and to provide the legal basis for the decision in writing.
Response: Plaintiff does not dispute the fact that Defendant Chiment sent the January 23, 2007 letter, which affirmed the undisputed fact that the School District was restricting Plaintiff's speech based on its viewpoint. Insofar as it was a "legal basis," Plaintiff disputes this opinion since the "legal basis" violates clearly established constitutional

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rights of which a reasonable person would have known. (See SOMF at PP 93-95).
51. Referring to the two banners, the January 23 letter states that "[t]he prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all which include the word 'God' or 'Creator' has the effect of using your influence as a teacher to promote a sectarian viewpoint."
Response: Plaintiff does not dispute the fact that the letter states what Defendants represent here. (See SOMF at PP 93-95).
52. The January 23 letter expressly notes the prohibitions in California Education Code section 51511 and AR 3.11.2 as grounds for the School's [*73] position.
Response: Plaintiff does not dispute the fact that Defendants cited various policies in the January 23, 2007, letter as pretext/bases for their unconstitutional viewpoint-based restriction on Plaintiff's personal, non-curricular speech. See responses to PP 23, 25 above. (See SOMF at PP 93-95).
53. Chiment has explained that the reason Johnson was asked to remove his banners is because they violate District policy and procedure, consistent with the California and U.S. Constitutions and California Education Code. Specifically, the banners advocated a particular religious viewpoint over non-religion (atheism and agnosticsism), and they also advocated "God" over other religions that do not use the word "God" for a supreme being (such as Yahweh or Allah, for example).
Response: Plaintiff disputes these facts and legal conclusions couched as facts. Insofar as any policy, practice, or procedure of government is used as a basis for engaging in an official act or for making an official decision that violates fundamental principles of constitutional law, such as the act and decision of ordering Plaintiff to remove his banners based on the viewpoint of [*74] his speech, that official act or decision is unconstitutional, regardless of the self-serving "explanation" of the official responsible for the act or decision. (See SOMF at PP 93-95).
54. Although religion is not a category of items prohibited from classroom walls, the District may prohibit religious viewpoints where the teacher appears to be teaching or advocating a religious viewpoint separate from a curricular context. (Plaintiff's emphasis).
Response: Plaintiff does not dispute the assertion that "religion [albeit, certain religions] is not a category of items prohibited from classroom walls," particularly since Defendants permit speech in this forum that promotes the Buddhist religion. However, Plaintiff objects to this incomplete "fact" in that it is essentially an incorrect legal conclusion as it relates to this case. Plaintiff does not dispute the fact that the School District controls the curriculum in the district. However, when the School District creates a forum for personal, non-curricular speech, as in this case, and the speaker is addressing a permissible subject matter, as in this case, Defendants cannot restrict a particular viewpoint [*75] on a permissible subject matter because the viewpoint is considered religious (Christian) without running afoul of well-established principles of constitutional law. See responses to PP 23, 25 above.
55. Chiment further believed that these banners could be a distraction to a student that was upset with the particular theology of the banners. Mr. Johnson was provided with some suggested alternative posters to post on his walls in lieu of his banners.
Response: Plaintiff disputes the fact that his patriotic banners promote any "particular theology." Indeed, Defendant Chiment's comments are incorrect (and patently offensive) given the fact that he personally is aware of Tibetan prayer flags (and their religious nature), and he personally approves of the display of these sacred items by teachers (as personal, non-curricular speech) in the School District. Moreover, Plaintiff's banners caused no disruption in the School District. (See SOMF at PP 31, 66, 67, 98, 99).
56. Mr. Johnson was provided with some suggested alternate posters to post on his walls in lieu of his banners.

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(Plaintiff's emphasis).
Response: Plaintiff does not refute this fact, [*76] which further demonstrates that teachers have discretion over their non-curricular displays in their classrooms. (See SOMF at PP 32-34).
57. Mr. Chiment had asked his staff to go to a teacher supply store and buy items that would place the statements of Mr. Johnson's banners in context.
Response: Plaintiff does not dispute the fact that Defendant Chiment asked his staff to purchase certain items. However, Plaintiff disputes the fact that there was any need to "place the statements of Mr. Johnson's banners in context," particularly since Defendants admit that the historic and patriotic phrases depicted on Plaintiff's banners were well known by the students. (See SOMF at PP 74, 78).
58. These suggested materials consisted of various posters depicting the entire text of the Declaration of Independence, displays of coinage containing the words "In God We Trust" and the text of the Pledge of Allegiance.
Response: Plaintiff does not dispute the fact that the School District purchased certain posters that contained some of the well-known historic phrases displayed on Plaintiff's banners. (See SOMF at PP 68, 74, 78, 83, 84).
59. Mr. Johnson received these [*77] materials, but declined to display materials up (sic) in lieu of his banners.
Response: Plaintiff does not dispute the fact that he received posters from Defendants and that Defendants said he could display them, if he "wish[ed]." Indeed, Plaintiff said that he would be willing to display these additional posters alongside his banners (for additional context), but Defendants refused. (See Johnson Decl. at P 3 at Ex. 1, attached to this response).
60. Poway teacher Lori Brickley has what apparently are known as "Tibetan prayer flags" displayed in her classroom.
Response: Plaintiff does not dispute the fact that Ms. Lori Brickley, a science teacher in the School District, has a very large (35 to 40 feet) display of Tibetan prayer flags, some of which contain images of Buddha. Plaintiff disputes Defendants "apparently" modifier, particularly since Ms. Brickley, and more importantly, Defendant Chiment, know exactly what these religious items are. (See SOMF at PP 53, 54).
61. Brickley's prayer flags are in a language, Sanskrit, that no person at the school (student or otherwise) has been able to read.
Response: Plaintiff does not dispute the [*78] fact that the prayers depicted on the flags are in Sanskrit. However, the image of Buddha contained on the flags makes it plain that these are religious objects of Buddhism, and Ms. Brickley explains to her students that they are in fact "prayer flags." Additionally, and perhaps more significantly, Defendant Chiment knew right away that these items were Tibetan prayer flags of the Buddhist religion; yet, he still allows them. (See SOMF at PP 53, 54). Moreover, a simple Google search of "Tibetan prayer flags," including a visit to the popular Wikipedia site at http://en.wikipedia.org/wiki/Prayer_flag, will inform any observer of the religious nature of these items (as if the name of them ("prayer flags") was not enough to demonstrate their religious nature).
62. The prayer flags are decorative in nature, and an interesting artifact in that they are sold at the bottom of Mount Everest and placed on top of the mountain when climbers reach the top, as Brickley informs her students who ask.
Response: Plaintiff disputes these facts as follows. The true nature of the Tibetan prayer flags is that they are sacred, religious objects that promote Buddhism. Ms. Brickley [*79] understands that; yet, she still displays them. Defendant Chiment understands that; yet, he still allows them to be displayed. Indeed, Plaintiff's banners were just as "decorative" and "interesting," particularly since the phrases and slogans are meaningful to our Nation's history and

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heritage, unlike the Tibetan prayer flags. (See SOMF at PP 53, 54).
63. Brickley's personal belief is that religion does not belong in the classroom.
Response: Plaintiff contends that Ms. Brickley's personal belief is that the Christian religion does not belong in the classroom, particularly since she displays Buddhist religious symbols in her classroom. Moreover, Ms. Brickley (and Defendants) believes that promoting her personal views on controversial, partisan issues such as gay rights, global warming, zero population growth, and the environment are permissible in her classroom. Ms. Brickley believes that it is appropriate for her to criticize Fundamentalist Christians in her classroom. (Ms. Brickley displays a bumper sticker that says, "Hate is not a family value," which she uses to convey "the fact that 'family values' is a term that the conservative right[, which includes [*80] Fundamentalist Christians and Catholics,] has used to make people who have different sorts of families wrong.") (SOMF at P 42, Brickley Dep. at 114 at Ex. 5 to SOMF). Ms. Brickley generally believes that Christians, including Plaintiff, are "homophobic." (Brickley Dep. at 32-34, 121-22 at Ex. 2, attached to this response). Ms. Brickley thinks it is appropriate for a teacher to recite on school property her own pledge of allegiance, which states, "I pledge allegiance to our mother the earth, the sea, the land, the sky and obey her simple law, put back what you take away." (Brickley Dep. at 37-38 at Ex. 2, attached to this response). Ms. Brickley (and Defendants) believes that it is appropriate for her to publicly demonstrate (i.e., participate in the controversial "day of silence") along with the students on school property during the school day in support of gay rights. Consequently, Ms. Brickley (and Defendants) believes that it is entirely proper for her to use her position as a teacher in the school district to actively promote certain partisan political views on controversial issues so long as those views are the favored ones. (See SOMF at PP 39, 42, 45, 53, 54, 65). [*81]
64. Brickley says her flags have the purpose of motivating her students to achieve lofty goals, like mountain climbers trying to reach Everest's summit.
Response: Plaintiff does not dispute the fact that that is what Ms. Brickley said about her 35 to 40-foot display of Tibetan prayer flags. However, Ms. Brickley also acknowledges the fact that these "prayer flags" are considered sacred, religious items, which ultimately promote Buddhism. (See SOMF at PP 53, 54).
65. There is a small figure on some flags that appears to be Buddhist in nature, but that is unclear, and it is not prominent.
Response: Plaintiff does not dispute the fact that on some flags, which are approximately one foot by one foot in size and prominently displayed (35 to 40 foot display) in classrooms in the School District contain images of Buddha, and the record shows that these images are recognized as images of Buddha, a religious symbol. (See SOMF at PP 53, 54).
Respectfully submitted,
THOMAS MORE LAW CENTER
By: /s/ Robert J. Muise Robert J. Muise, Esq. * Admitted pro hac vice Charles S. LiMandri, Esq.
Counsel for Plaintiff Bradley Johnson
CERTIFICATE [*82] OF SERVICE
STATE OF MICHIGAN, COUNTY OF WASHTENAW

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Matter of: Johnson v. Poway Unified School District, et al.
Case Number: 07 CV 00783 BEN (NLS)
I am employed in the County of Washtenaw, State of Michigan. I am over the age of eighteen and not a party to the within action. My business address is Thomas More Law Center, 24 Frank Lloyd Wright Drive, P.O. Box 393, Ann Arbor, Michigan 48106.
On September 28, 2009, I served the following documents entitled: Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants' Motion for Summary Judgment, and Plaintiff's Response to Defendants' Statement of Undisputed Material Facts with attached exhibits and this certificate of service on the parties in this action as follows: [see service list]
[X] (BY ELECTRONIC SERVICE) On the date executed below, I served the document(s) via CM/ECF described above on the designated recipients appearing on the service list through electronic transmission of said document(s). A certified receipt is issued to the filing party acknowledging receipt by CM/ECF's system. Once CM/ECF has served all designated recipients, proof of electronic service [*83] is returned to the filing party.
[] (BY MAIL) I caused true copies of said document(s) to be enclosed in a sealed envelope(s) with postage thereon fully prepaid and the envelope(s) to be placed in the United States Mail at Ann Arbor, Michigan. I am readily familiar with the practice of the Thomas More Law Center for collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection.
[] (BY FACSIMILE) The above-referenced document(s) was transmitted by facsimile transmission to each recipient whose name and facsimile number appear on the service list. The transmission was reported as completed and without error. A true and correct copy of that transmission report is attached hereto and incorporated by reference.
[] (BY FEDERAL EXPRESS) I caused the above-described documents to be served on the interested parties noted on the service list by Federal Express.
[X] I declare under penalty of perjury under the laws of the United States that the above is true and correct.
Executed on September 28, 2009, at Ann [*84] Arbor, Michigan.
/s/ Robert J. Muise Robert J. Muise
Counsel for Plaintiff Bradley Johnson
SERVICE LIST
Stutz Artiano Shinoff & Holtz Daniel R. Shinoff, Esq. Jack M. Sleeth, Jr., Esq. Paul V. Carelli, IV, Esq. 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106-6113
Counsel for Defendants Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd

2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75416, *84
Gutschow, Penny Ranftle, Dr. Donald A. Phillips, William R. Chiment, and Dawn Kastner [SEE EXHIBIT 1 IN ORIGINAL] [SEE EXHIBIT 2 IN ORIGINAL]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ________________________________________
Docket No. 10-55445 ________________________________________
BRADLEY R. JOHNSON
Plaintiff/Appellee,
v.
POWAY UNIFIED SCHOOL DISTRICT, et al.
Defendants/Appellants. ________________________________________
On Appeal from the United States District Court Southern District of California - San Diego Case No. 3:07-cv-00783-BEN-WVG Honorable Roger T. Benitez, District Judge
________________________________________
APPELLANTS’ OPENING BRIEF ________________________________________
STUTZ ARTIANO SHINOFF & HOLTZ, APC Daniel R. Shinoff (SBN 99129) Jack M. Sleeth, Jr. (SBN 108638) Paul V. Carelli, IV (SBN 190773)
2488 Historic Decatur Road, Suite 200 San Diego, CA 92106-6113
Tel: (619) 232-3122/Fax: (619) 232-3264 Attorneys for Defendants/Appellants
Poway Unified School District; Jeff Mangum; Linda Vanderveen; Andrew Patapow; Todd Gutschow; Penny Ranftle; Dr. Donald A. Phillips;
William R. Chiment; and Dawn Kastner

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TABLE OF CONTENTS
Page(s)
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The District Court’s Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. The Ninth Circuit’s Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IV. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. The Parties’ Cross-Motions for Summary Judgment Are Decided In Johnson’s Favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
V. FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Johnson’s Banners Come To the Attention of School Principal, Dawn Kastner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Johnson’s Banners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 C. Kastner meets with Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 D. The School’s Policies, Procedures, and Practices re: Teacher Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 E. Johnson Is Asked To Remove The Banners From His Classroom Walls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 F. Site Inspections During Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . 18
VI. SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
VII. ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 A. Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 B. The School Did Not Violate Johnson’s First Amendment Rights . . 21 1. The Supreme Court’s holdings on public employee speech have been distilled into a five-part test in the Ninth Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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Page(s)
2. Johnson’s Banners Are Curricular Speech and Therefore Not A Matter of Public Concern . . . . . . . . . . . . . . 24 a. The weight of the Circuits holds that curricular speech is not afforded First Amendment protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 b. The Downs case supports that teachers cannot teach what they want to high school students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 c. The case most on point is a Fourth Circuit case holding that teacher postings in a classroom are curricular and not afforded First Amendment protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3. Johnson’s Banners Are Not Private Citizen Speech; Rather, He Is Speaking Pursuant to his Official Duties or As a Public Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 a. Garcetti is applicable to high school teacher speech . 30 b. The Seventh Circuit has applied Garcetti to teacher classroom speech . . . . . . . . . . . . . . . . . . . . . . 33 c. Johnson’s speech was made pursuant to official duties, and therefore is not afforded First Amendment protections . . . . . . . . . . . . . . . . . . . . . . . . 34
4. Even if the speech is deemed to be by a private citizen, then the Ninth Circuit’s Pickering-style balancing analysis weighs in the School’s favor . . . . . . . . . . . . . . . . . . . . . . . . . 35 a. Peloza permits schools to restrict religious speech by teachers to students . . . . . . . . . . . . . . . . . . . 36 b. The Berry and Tucker cases reaffirmed use of the Pickering-style test for religious speech cases . 38 c. The common thread through Peloza, Berry, and Tucker is that where members of the public have access to the employee’s religious speech, the public employer may restrict it . . . . . . . . . . . . . . . 41 d. Johnson’s banners were directed toward students . . . 42 e. The banners advocated religious belief . . . . . . . . . . . . 43
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Page(s)
f. The display of Johnson’s banners violates the Establishment Clause . . . . . . . . . . . . . . . . 44
g. Johnson’s banners also violate the School’s policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5. District Court erred by applying a forum-test . . . . . . . . . . . . 47 C. Teacher Speech Protections Under the California
Constitution Are Treated the Same as the Federal Constitution, So There Was No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 D. The School Did Not Violate the Establishment Clauses of Either the U.S. or California Constitution . . . . . . . . . . . . . . . . . . . . 50 1. The School provided alternative materials containing
the same language, but in context . . . . . . . . . . . . . . . . . . . . . 51 2. The District Court failed to consider the size and context
of items displayed in other classrooms . . . . . . . . . . . . . . . . . 51 E. The School Did Not Violate Equal Protection Clause . . . . . . . . . . . 55 F. The School Did Not Violate the “No Preference Clause”
of the California Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 G. If the Court Finds A Constitutional Violation, Qualified
Immunity Should Still Shield the Individual Defendants . . . . . . . . 58 1. Contrary to the District Court’s opinion, the law is
unsettled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 2. The School’s administrators were not insensitive to
Johnson’s beliefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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TABLE OF AUTHORITIES Page(s)
California Statutes California Education Code Section 32211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 California Education Code Section 48264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Federal Cases Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty.
488 U.S. 336 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 American Civil Liberties Union of Nev. v. City of Las Vegas
333 F3d 1092 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Anthoine v. North Central Counties Consortium
605 F.3d 740 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Aronow v. United States
432 F.2d 242 (9th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Berry v. Department of Social Services
447 F.3d 642 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . 36, 38, 39, 41, 48 Borden v. School Dist. of Tp. of East Brunswick
523 F.3d 153 (3rd Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 49 Boring v. Buncombe County Board of Education
136 F.3d 364 (4th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Bradley v. Pittsburgh Bd. of Educ.
910 F.2d 1172 (3rd Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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Page(s)
Brown v. Woodland Joint Unified School Dist. 27 F.3d 1373 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
California Teachers Assn. v. Governing Board 45 Cal.App.4th 1383 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50
Catholic Charities of Sacramento, Inc. v. Superior Ct. 32 Cal.4th 527 (Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
City of Cleburne v. Cleburne Living Center 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Cockrel v. Shelby County School District 270 F.3d 1036 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
Cole v. Oroville Union High School Dist. 228 F.3d 1092 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Connick v. Myers 461 U.S. 138 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 49
Conti v. City of Fremont 919 F.2d 1385 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. 473 U.S. 788 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
County of Allegheny v. ACLU 492 U.S. 573 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46
Downs v. Los Angeles Unified Sch. Dist. 228 F.3d 1003 (9th Cir.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26, 27, 47
Elder v. Holloway 510 U.S. 510 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Page(s)
Eng v. Cooley 552 F.3d 1062 (9th Cir.2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-24, 36
Garcetti v. Ceballos 547 U.S. 410 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 26, 30-33
Harlow v. Fitzgerald 457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Hazelwood Sch. Dist. v. Kuhlmeier 484 U.S. 260 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Hope v. Pelzer 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Huppert v. City of Pittsburg 574 F.3d 696 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24
Kirkland v. Northside Indep. Sch. Dist. 890 F.2d 794 (5th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Lee v. Weisman 505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Lee v. York County Sch. Div. 484 F.3d 687 (4th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
Lemon v. Kurtzman 403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 50
Lynch v. Donnelly 465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Mayer v. Monroe County Community School Corp. 474 F.3d 477 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 33, 34, 48
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Page(s)
Morse v. Frederick 551 U.S. 393 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Newdow v. Rio Linda Union School Dist. 597 F.3d 1007 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 43, 45, 60, 61
Newdow v. U.S. Congress 328 F.3d 466 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Nordlinger v. Hahn 505 U.S. 1 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Padfield v. AIG Life Ins. Co. 290 F3d 1121 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Peloza v. Capistrano Unified School District 37 F.3d 517 (1994) . . . . . . . . . . . . 1, 2, 33, 34, 36-38, 41, 42, 45, 48, 59, 60
Pickering v. Bd. of Educ. 391 U.S. 563 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 32, 49
Planned Parenthood v. Clark County Sch. Dist. 941 F.2d 817 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Pleasant Grove City, Utah v. Summum __ U.S. __, 129 S.Ct. 1125 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Posey v. Lake Pend Oreille School Dist. No. 84 546 F.3d 1121 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 32
Roberts v. Madigan 921 F.2d 1047 (10th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Rosenbaum v. City & County of San Francisco 484 F.3d 1142 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Page(s) Sands v. Morongo Unif. Sch. Dist.
53 Cal.3d 863 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Sioux City Bridge Co. v. Dakota County
260 U.S. 441 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Tinker v. Des Moines Independent Community School District
393 U.S. 503 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 49, 59 Travelers Cas. & Sur. Co. of America v. Brennete
551 F3d 1132 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Tucker v. State of Cal. Dept. of Educ.
97 F.3d 1204 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 39-41, 45, 48 U.S. v. American Library Ass’n, Inc.
539 U.S. 194 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Village of Willowbrook v. Olech
528 U.S. 562 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Webster v. New Lenox School Dist. No. 122
917 F.2d 1004 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Federal Statutes 28 U.S.C. Section 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. Section 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 28 U.S.C. Section 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 28 U.S.C. Section 1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 28 U.S.C. Section 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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Page(s) 28 U.S.C. Section 2202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. Section 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 58
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I. INTRODUCTION A math teacher at a public high school displayed two very large banners in his classroom. One banner had red, white, and blue stripes, with four phrases in large block letters: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and “GOD SHED HIS GRACE ON THEE.” The other banner read: “All Men Are Created Equal They Are Endowed By Their CREATOR,” with the word “CREATOR” in capital letters twice the size of the other words. It is the unmistakable law in this Circuit that a school district does not violate a teacher’s First Amendment rights by restricting the teacher from advocating religion to students during the school day. Peloza v. Capistrano Unified School District, 37 F.3d 517, 522 (1994). This is because schools have the right to avoid a violation of the Establishment Clause. Id. The banners’ phrases are both historical and religious. But the school district concluded that, displayed together, the religious message predominated and advocated. The school district offered the teacher alternative items to display, with the same phrases in context, such as the full text of the Declaration of Independence. The teacher refused this option. The school district instructed him to remove the banners. He complied, but sued the school and administrators for violation of his constitutional rights.
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The District Court held that the removal of the banners violated the teacher’s constitutional rights. For the first time, the Court also erroneously held that a school classroom is a limited public forum, even during school hours. Moreover, despite the holding in Peloza, the District Court denied the individuals’ defense of “qualified immunity.” The school defendants now appeal, and urge this Court to reverse and enter judgment in their favor.
Although a school may be a marketplace of ideas, when teachers speak to students during paid teaching time, they are extensions of the school, and the school has the right to restrict their speech. Here, since the banners were displayed permanently, the teacher was speaking to students as part of his official duties. Such speech should not be afforded First Amendment protections. Moreover, because the speech crossed the line from patriotism to religious advocacy, the school had the right to restrict the speech. The District Court erred in holding otherwise.
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II. JURISDICTIONAL STATEMENT A. The District Court’s Jurisdiction.
Plaintiff Johnson filed suit against the Poway Unified School District and individual School Defendants1 (collectively, “School”), alleging claims under the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and the California Constitution. 2 ER 091. Accordingly, the District Court had jurisdiction over the federal claims pursuant to 28 U.S.C. §§ 1331 and 1343, and had supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a). The District Court had jurisdiction to grant equitable relief and nominal damages pursuant to 28 U.S.C. §§ 2201, 2202 and 42 U.S.C. § 1983. B. The Ninth Circuit’s Jurisdiction.
The Ninth Circuit has jurisdiction to review the final judgment. The District Court filed an order under Federal Rules of Civil Procedure, Rule 56, granting summary judgment and disposing of all claims in Johnson’s favor. 1 ER 001. A final judgment was entered in Johnson’s favor on February 26, 2010. 4 ER 704. On March 25, 2010, the School Defendants timely filed a notice of appeal from the
1 The individual School defendants consist of five elected school board members (Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, and Penny Ranftle), District Superintendent Dr. Donald A. Phillips, Associate Superintendent for Personnel Support Services William R. Chiment, and Dawn Kastner, principal of Westview High School, where Johnson teaches. 2 ER 93-94.
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judgment. 4 ER 705. Accordingly, this Court has appellate jurisdiction under 28 U.S.C. § 1291.
III. ISSUES 1. Did the District Court err by holding that the School violated Johnson’s First Amendment free speech rights?
Subissue 1(a): Is Johnson’s speech curricular, and thus the School’s speech, which would not be afforded First Amendment protections?
Subissue 1(b): Is Johnson’s speech, made pursuant to his official duties as a government employee, precluded from First Amendment protection?
Subissue 1(c): Does the School’s right to be free from an Establishment Clause violation outweigh Johnson’s free-speech right under the Ninth Circuit’s balancing test for government employee speech?
Subissue 1(d): Did the District Court err in deciding that the School’s fear of an Establishment Clause violation was not justified?
2. Did the District Court err in holding that the public school classroom used by a teacher during school hours was a limited public forum?
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3. Did the District Court err by holding that the School violated the Establishment Clause?
4. Did the District Court err by holding that the School violated the Equal Protection Clause?
5. Did the District Court err by holding that the School violated Johnson’s state constitutional rights?
6. Did the District Court err in denying the School’s motion for summary judgment while granting Johnson’s?
7. Did the District Court err by denying qualified immunity to the individual School Defendants?
IV. STATEMENT OF THE CASE A. The Pleadings.
Johnson’s First Amended Complaint (“FAC”) is the operating complaint, alleging six claims against all Defendants: (1) Violation of Freedom of Speech under the First Amendment to the U.S. Constitution; (2) Violation of the Establishment Clause of the First Amendment to the U.S. Constitution; (3) Violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; (4) Violation of the Freedom of Speech under the California Constitution;
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(5) Violation of the No Preference Clause of the California Constitution; and (6) Violation of the Establishment Clause of the California Constitution. 2 ER 103-108. The first three claims are brought under 42 U.S.C. section 1983. 2 ER 103-105.
The FAC seeks the following remedies: (a) a declaration that Defendants have violated federal and state law; (b) an injunction to prevent Defendants from discriminating against the display of classroom messages with a Judeo-Christian viewpoint; (c) nominal damages against the individual Defendants; and (d) attorney fees and costs. 2 ER 107.
After the School Defendants unsuccessfully moved to dismiss the FAC under Rule 12(b)(6) [4 ER 750-751], they answered and denied the material allegations. 2 ER 109-112. The individual Defendants affirmatively alleged “qualified immunity.” 2 ER 114. B. The Parties’ Cross-Motions for Summary Judgment Are Decided In
Johnson’s Favor. Following discovery, the parties filed cross-motions for summary judgment. 2 ER 43; 3 ER 411. The District Court heard oral arguments of the parties on the cross-motions. 1 ER 33-90; see also RT. The District Court issued its decision on
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February 25, 2010, granting Johnson’s motion, and denying Defendants’ motion. 1 ER 001-002.
As to the free speech claims under the First Amendment and California Constitution, the District Court first determined that the School had opened a “limited public forum” by permitting teachers to decorate their own classrooms, and thus the School was required to maintain viewpoint neutrality regarding the items posted on the classroom walls by teachers. 1 ER 014. The Court then held that the Defendants had discriminated against Johnson’s banners because of their Christian viewpoint. 1 ER 016-018. The Court rejected the Defendants’ argument that the banners, as presented, impermissibly violated the Establishment Clause. 1 ER 018-020. The Court also rejected Defendants’ arguments that Johnson was speaking as a public employee and therefore his speech did not warrant First Amendment protections. 1 ER 021. The Court also found that the Ninth Circuit’s Pickering-style balancing test advocated by Defendants did not aid Defendants’ position. 1 ER 021-025. Finally, the Court rejected the Defendants’ arguments that Johnson’s banners should be construed as curricular speech, and therefore not protected by the First Amendment. 1 ER 25-26. The Court then concluded that Defendants violated the First Amendment and California Constitution. 1 ER 026.
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The District Court also found in Johnson’s favor as to his Establishment Clause claims under federal and state constitutions. 1 ER 029. The District Court rejected Defendants’ argument that they were maintaining religious neutrality, finding that the Defendants permitted other displays concerning Buddhism, Hinduism, and antireligious speech to remain in classrooms. 1 ER 027-029. With respect to Johnson’s Equal Protection claim under the Fourteenth Amendment, and the California Constitution’s “No Preference” clause, the Court found similarly. 1 ER 030-031.
The District Court also held that the individual Defendants were not entitled to defend on qualified immunity grounds. 1 ER 031. To that end, the Court found that the law in this area is “clearly established.” 1 ER 031.
The District Court awarded declaratory relief, issued an injunction permitting Johnson to immediately re-display his banners, ordered the individual Defendants to pay nominal damages of ten dollars each, and determined that Johnson was entitled to recover his reasonable attorney fees and costs. 1 ER 032.
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V. FACTS A. Johnson’s Banners Come To the Attention of School Principal, Dawn
Kastner. Defendant Dawn Kastner has been the Principal of Westview High School2 since July 1, 2006. 3 ER 378. Early in Kastner’s tenure as Westview principal (sometime in Fall 2006), she was approached by a Westview teacher, Mr. Subbiah, who asked Kastner why a fellow teacher, Bradley Johnson, was permitted to have certain banners on display in Johnson’s classroom. 3 ER 504-505; 4 ER 587. Kastner had also heard about these banners from a student and another teacher, and she wondered what they were talking about. 3 ER 504-505; 4 ER 587. Some background on Mr. Johnson: He teaches math (calculus, pre-calculus, and algebra) at Westview High School. 2 ER 093; 3 ER 490. He has taught with the District at various high schools for over 30 years. 2 ER 093; 3 ER 490-491. Johnson is Christian, and has served as the faculty adviser for the Christian Club at Westview HS since becoming a teacher there in 2005. 2 ER 093; 3 ER 493. He was previously an adviser at schools where he taught previously. 3 ER 492.
2 Westview High School is operated by Defendant Poway Unified School District. 4 ER 578.
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Kastner visited Johnson’s classroom at Westview and saw the two banners for the first time. 3 ER 505; 4 ER 587. Both banners in Johnson’s classroom were prominently displayed in a non-obstructive manner. 2 ER 097. Kastner’s first thought about them was, “Wow, these are really big.” 3 ER 505. B. Johnson’s Banners.
Both banners are each seven feet wide by two feet tall. 2 ER 097; 3 ER 453-457. Both are located in places in Johnson’s classroom where students can easily read them while in their seats. 3 ER 456-457; 3 ER 536.
One banner has red, white, and blue stripes, and has four phrases in large block letters, one over another: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and “GOD SHED HIS GRACE ON THEE.” 2 ER 097; 3 ER 453-457. The phrase “In God We Trust” is the official motto of the United States. 2 ER 097. The phrase “One Nation Under God” is part of the U.S. Pledge of Allegiance. 2 ER 098-099. The phrase “God Bless America” refers to the song of the same title written by Irving Berlin in the early 20th Century. 2 ER 099. The phrase “God Shed His Grace On Thee” is a phrase from the song, “America the Beautiful.” 2 ER 099.
The other banner reads, in large font: “All Men Are Created Equal, They Are Endowed By Their CREATOR.” 3 ER 493-497. This phrase is reference to the
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preamble to the Declaration of Independence, which states, in part: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” http://www.archives.gov/exhibits/charters/ declaration_transcript.html (accessed on July 7, 2010). On the banner, the word “CREATOR”occupies its own line of text in “ALL CAPS” typeface about twice the size of the other words on the banner, which are in “Initial Caps” typeface. 3 ER 493-497. This banner was surrounded by photographs of nature, and was displayed on a separate wall from the “striped” banner. 4 ER 580. Johnson testified that he conceived and designed the layout of this particular banner so that the word “CREATOR” would be larger, in order to highlight his belief that a supreme being provided mankind with the rights described in the preamble to the Declaration of Independence. 3 ER 495.
Johnson testified in his deposition that the purpose of the two banners is for “celebrat[ing] our national heritage,” “highlight[ing] the religious heritage and nature of our nation that we have as a foundation” and “espousing God as opposed to no God . . . but not any particular God.” 3 ER 496; 497.
Johnson has had the “striped” banner or one like it hanging in his classroom since 1982. 3 ER 494-495. Johnson originally had a banner made out of paper
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hanging in his classroom at Mount Carmel High School from 1982 through 1989. 3 ER 495. When Johnson transitioned to Rancho Bernardo High School in 1990, he had a more permanent banner made. 3 ER 494-495. As for the “CREATOR” banner, Johnson had it made in 1989, and displayed it thereafter in his classroom. 2 ER 097; 3 ER 495. Johnson moved to Westview High School in 2003. 3 ER 491. The School could not locate any administrators who could either confirm or deny that the banners have been displayed in Johnson’s classroom for length of time Johnson says they have been displayed, so the duration has gone undisputed. Furthermore, there was no evidence presented that any administrator knew about the banners before Principal Kastner brought them to the administrators’ attention during the 2006-2007 school year. C. Kastner meets with Johnson.
When Kastner saw the banners, she was concerned that the banners were very large, and inappropriately promoted a viewpoint advocating God, as the phrases were pulled out of their original context. 3 ER 506. So Kastner met with Johnson soon thereafter to discuss his banners. Kastner told Johnson that taking the phrases concerning God and putting them together in large print out of context was moving away from a patriotic comment to promotion of his religious beliefs that might make some students uncomfortable. 3 ER 508. During the discussion, Kastner suggested
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to Johnson that an Islamic student walking into the classroom may feel bad or like he or she would not fit in, but Johnson replied something to the effect of “sometimes that’s necessary.” 3 ER 506. Johnson told Kastner he felt strongly that he needed the signs to stay up, that he had a right to have the banners up, and that he’d had them up for a long time. 3 ER 508. Kastner suggested to Johnson that he put the banner phrases “in context,” such as posting the entire Declaration of Independence. 3 ER 506; 4 ER 589. She also suggested reducing the scale of the banners to “something small around the desk area.” 3 ER 508. Johnson did not agree. 3 ER 508.
Following her meeting with Johnson, Kastner was unsure how to proceed, so she contacted Melavel Robertson (Assistant Superintendent for Learning Support Services [3 ER 513]) for guidance on handling the situation. 3 ER 505. Kastner’s secretary took pictures of the banners and sent them to Robertson. 3 ER 505, 538. Robertson was concerned about the size of the banners and felt that students of different faiths may feel uncomfortable with a banner that large. 3 ER 516-517. D. The School’s Policies, Procedures, and Practices re: Teacher Speech.
Robertson suggested that Kastner speak with William Chiment, because he is the School administrator who handles personnel concerns which might raise legal issues. 3 ER 515-516. Chiment has been the School’s Associate Superintendent for
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Personnel Support Services since 1999. 3 ER 471. Chiment spoke with Kastner and reviewed photographs of the banners in Johnson’s classroom. 3 ER 472.
According to Chiment, the School’s informal practice is to permit teachers to decorate their classrooms with personal items such as posters, flags, or banners, but there are limitations that apply at the School’s discretion. 3 ER 473-475. For example, teachers’ personal items cannot violate the School’s anti-harassment policy. 3 ER 474. The School may also limit personal items by taking into consideration the size of the item, the age appropriateness of the particular item for the students in the classroom, the potential relationship to the curriculum, and the School’s mission. 3 ER 476-477.
The School also has a formal written policy regarding the teaching of controversial issues, which also governs the items that teachers may display on their classroom walls. 3 ER 459, 478. This formal policy, BP 3.11, provides, in part, that teachers must “exercise caution and discretion when deciding whether or not a particular issue is suitable for study or discussion in any particular class.” 3 ER 459. The policy also “requires teachers to ensure that all sides of a controversial issue are impartially presented with adequate and appropriate factual information” and “[w]ithout promoting any partisan point of view.” 3 ER 459.
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This Policy has an attached Administrative Procedure, entitled AP 3.11.2, containing a section entitled the “Responsibilities of Teachers.” 3 ER 465. Those responsibilities include “choos[ing] suitable and useful instructional materials,” “direct[ing] class discussion to cover all points of view,” distinguish[ing] between teaching and advocating, and refrain[ing] from using classroom teacher influence to promote partisan or sectarian viewpoints.” 3 ER 465. This Administrative Procedure also has a section on the rights of students, and expressly gives students the “right to form and express individual opinions on controversial issues without jeopardizing relations with teachers or others.” 3 ER 466. The Administrative Procedure also has a section entitled “The Selection of Issues.” 3 ER 466. Within that section, the Procedure states that in general, “the decision as to whether a controversial issue should become a matter of school study should be based upon” ten listed criteria, including “1. It must contribute significantly to the objectives of the curriculum; . . . 6. The issue must involve alternate points of view which can be understood and defined by students; 7. The issue must be one about which information is present and available so alternatives can be discussed and evaluated on a factual and reasonable basis; . . . and 10. The issue must provide opportunity for critical thinking for the development of tolerance and the understanding of conflicting
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points of view, at the same time that it contributes to the prescribed course of study and the general educational program of the school.” 3 ER 466.
The School’s position is that expression of religion within the District is proscribed by the law of the U.S. and State constitutions. 3 ER 481. The School contends that its policies and procedures are consistent with the U.S. and State constitutions. 3 ER 482. Even non-curricular items are part of the learning environment and potentially advocating, and therefore such items are subject to this written policy. 3 ER 479-480. Sometimes the School receives complaints from parents about only one side of an issue being taught, and the School works with principals to ensure that teachers are teaching both sides of an issue. 3 ER 514. E. Johnson Is Asked To Remove The Banners From His Classroom Walls.
The issue involving Johnson’s banners was discussed by the School’s cabinet-level administrators after it came to their attention. 3 ER 516-517. Ultimately, Chiment made the decision to have Johnson remove his banners. 3 ER 461. This decision was agreed to by the Superintendent’s cabinet (consisting of Superintendent and Defendant Donald Philips, the Deputy Superintendent, John Collins, Chiment, and the School’s assistant superintendents). 3 ER 519, 521-522.
Mr. Chiment asked Mr. Johnson by telephone to remove his banners on or about January 19, 2007. 3 ER 461, 472. A few days after their telephone
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conversation, Mr. Chiment sent a letter to Johnson to confirm the decision to have Johnson remove his banners, and to provide the legal basis for the decision in writing. 3 ER 461; 472. Referring to the two banners, the letter states that “[t]he prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all which include the word ‘God’ or ‘Creator’ has the effect of using your influence as a teacher to promote a sectarian viewpoint.” 3 ER 461. The letter expressly notes the prohibitions in California Education Code section 51511 and AR 3.11.2 as grounds for the School’s position. Id.
During his deposition, Chiment further explained that the reason Johnson was asked to remove his banners is because they violate District policy and procedures, which are consistent with the California and U.S. Constitutions and California Education Code. Specifically, Chiment stated that the banners advocated a particular religious viewpoint over non-religion (atheism and agnosticism), and they also advocated “God” over other religions that do not use the word “God” for a supreme being (such as Yahweh or Allah, for example). 3 ER 468; 482-484. Although religion is not a category of items prohibited from classroom walls, the School may prohibit religious viewpoints where the teacher appears to be teaching or advocating a religious viewpoint separate from a curricular context. 3 ER 482. Chiment was
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also concerned that Johnson’s banners could be a distraction to a student who might be upset with the particular theology of the banners. 3 ER 487.
But School administrators did not try to scrub Johnson’s classroom of religious references; rather, the administrators provided Johnson with some suggested alternative posters to post on his walls in lieu of his banners. 3 ER 461. Mr. Chiment even asked his staff to go to a teacher supply store and buy items that would place the statements of Mr. Johnson’s banners in context. 3 ER 485. These suggested materials consisted of various posters depicting the entire text of the Declaration of Independence, displays of coinage containing the words “In God We Trust” and the text of the Pledge of Allegiance. 3 ER 461, and photographs of materials are at 3 ER 528-530. Principal Kastner took the materials out to Johnson’s classroom. 3 ER 510. Johnson received the materials, but declined to display materials in his classroom in lieu of his banners. 3 ER 498-499. F. Site Inspections During Discovery.
After the decision to remove the banners was made, and after the lawsuit was filed, Johnson conducted a site inspection of the School District classrooms at Mount Carmel High, Rancho Bernardo High, Westview High, and Poway High. 2 ER 183. Photographs of some of the items displayed in various classrooms during the site inspection were submitted to the District Court by Johnson in support of his motion
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for summary judgment. These items make various references to pop culture, history, art, science, and current events; Johnson claims some of these items advocate for no religion or a particular religion. 2 ER 196-293.
VI. SUMMARY OF ARGUMENTS The District Court erred by granting Johnson’s motion for summary judgment and denying Defendants’ motion for summary judgment. Johnson has no free speech rights to display his banners in his classroom. Johnson’s banners consist of speech, perpetually broadcast to students during the school day, and this speech is made pursuant to Johnson’s duties as a teacher. The banners, although tying into national and patriotic sentiment, have the primary message of advancing religion over nonreligion and Judeo-Christian religion over others. The School therefore has the right to remove the banners to keep itself free from an Establishment Clause violation. The School did not violate the Establishment Clause by directing removal of the banners, because the School’s purpose in doing so was to prevent its own violation of the Establishment Clause, and this purpose is secular and compelling. The School also did not violate Johnson’s equal protection rights. Although other material in other classrooms touch on religion, there is no evidence that this other material advocates in favor of religion or non-religion. Furthermore, there is no
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evidence that the School knew of the other material at the time the decision was made with respect to Johnson’s banners, and so there was no intent to discriminate. Also, the state law claims should have been adjudicated in Defendants’ favor on the same grounds as the federal claims.
Finally, the District Court erred by finding that the individual Defendants were not entitled to qualified immunity. The current law is that teachers may not advocate religion during the school day, and the individual Defendants had a reasonable belief that Johnson’s banners did just that. The District Court therefore erred in holding that well-settled law utilizes a forum-analysis for teacher speech in the classroom and that Defendants discriminated on the basis of viewpoint.
VII. ARGUMENTS A. Standards of Review.
Each of the issues presented in this appeal are reviewed de novo. A district court’s grant or denial of summary judgment is reviewed de novo. Travelers Cas. & Sur. Co. of America v. Brennete, 551 F3d 1132, 1137 (9th Cir. 2009) (order granting); Padfield v. AIG Life Ins. Co., 290 F3d 1121, 1124 (9th Cir. 2002) (order denying). The appellate court evaluates each cross-motion for summary judgment separately, “giving the nonmoving party in each instance the benefit of all reasonable
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inferences.” American Civil Liberties Union of Nev. v. City of Las Vegas, 333 F3d 1092, 1097 (9th Cir. 2003).
Issues arising under the First Amendment are reviewed de novo even when the inquiry is essentially factual. Rosenbaum v. City & County of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007).
The question of whether an employee is speaking as a private citizen or public employee for purposes of the speech’s protected status is a mixed question of fact and law. Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008). However, the “ultimate constitutional significance of the facts as found” is a question of law. Id. at 1129-30. In this case, the material facts regarding Johnson’s duties as a teacher are undisputed, and therefore a de novo standard is appropriate.
A defendant’s assertion of “qualified immunity” presents a legal question, and is also reviewed de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994). “A court engaging in review of a qualified immunity judgment should therefore use its full knowledge of its own and other relevant precedents.” Id., internal quotation omitted. B. The School Did Not Violate Johnson’s First Amendment Rights.
It has long been held that a public school teacher has certain First Amendment rights of freedom of speech or expression. Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1009 (9th Cir.2000); Tinker v. Des Moines Independent Community
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School District, 393 U.S. 503, 506 (1969) [“[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”]
But the free speech rights of public employees, including teachers, are not unlimited. Rather, these rights have been restricted by the Supreme Court as delineated under the tests established in Pickering v. Bd. of Educ., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983). See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (“Garcetti”).
1. The Supreme Court’s holdings on public employee speech have been distilled into a five-part test in the Ninth Circuit.
The Ninth Circuit has distilled the Supreme Court’s public employee speech cases claiming retaliation under section 1983 into a five-part test. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). The five-part Eng test is as follows: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Id.
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One recent Ninth Circuit case questioned the sequential order of these queries, believing that it would be more appropriate to first determine whether the employee was speaking as a public or private citizen. Huppert v. City of Pittsburg, 574 F.3d 696, 702-703 (9th Cir. 2009). However, the Huppert court concluded that it was “bound by [Ninth Circuit] precedent to follow the test set forth in Eng.” Id. at p. 703. The Huppert court then sequentially went through the questions “where applicable.” Id.
Unlike Eng or Huppert, however, this case is not a true “retaliation” case because the School did not discipline or reprimand Johnson. Since there was no adverse employment action, the third and fifth questions in Eng’s five-part test therefore do not apply under the circumstances.3 Nevertheless, the remaining Eng factors are meant to determine a public employee’s First Amendment rights. Accordingly, like the Huppert court, the School will sequentially address the Eng factors, “where applicable,” in this non-retaliation case. If Johnson fails to meet any one factor, the inquiry ends. Huppert, supra, 574 F.3d at 703.
The School also notes that the District Court agreed with Johnson’s argument that a forum analysis would be more appropriate under the circumstances than use of
3 Johnson has sought injunctive and declaratory relief (and attendant nominal damages) as to whether he may display his banners, and does not claim damages due to an alleged adverse employment action.
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the Pickering-Connick analysis, although the District Court noted that even under a Pickering analysis, Johnson prevails. 1 ER 12-14, 21-23. Therefore, after discussing the Eng factors, the School will discuss why the trial court erred in applying a forum test under the circumstances.
2. Johnson’s Banners Are Curricular Speech and Therefore Not A Matter of Public Concern.
The first inquiry under Eng is whether Johnson’s banners touch on a matter of public concern. “Speech involves a matter of public concern when it fairly can be said to relate to any matter of political, social, or other concern to the community.” Huppert, 574 F.3d at 703 (internal quotation marks and alterations omitted). “But speech that deals with individual personnel disputes and grievances and that would be of no relevance to the public’s evaluation of the performance of governmental agencies’ is generally not of public concern. [Citations.] Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. [Citations.]” Eng, supra, 552 F.3d at 1070 (internal quotations omitted).
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a. The weight of the Circuits holds that curricular speech is not afforded First Amendment protections.
Here, the District Court rejected the School’s contention that Johnson’s banners are part of the curriculum. 1 ER 025. The School’s contention is important because the weight of the other Circuits holds that a teacher speaking as part of the school’s curriculum is not speaking on a matter of public concern, because the school sets the curriculum (not the teacher). See Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3rd Cir. 1990) [holding that teacher has no First Amendment right to employ classroom teaching methodology of choice]; Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir.1998) [holding that a teacher’s selection of a school play constituted speech that did not implicate a matter of public concern, and thus was not protected by the First Amendment]; Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 795 (5th Cir. 1989) [(teacher’s choice of supplemental reading list not constitutionally-protected speech]; Webster v. New Lenox School Dist. No. 122, 917 F.2d 1004 (7th Cir. 1990); but see Cockrel v. Shelby County School District, 270 F.3d 1036, 1052 (6th Cir. 2001) [holding that curriculum lessons about the environmental benefits of industrial hemp, where not approved by school, touched on matters of public concern]. The Sixth Circuit is in the minority, but the value of the Cockrel case is questionable, because the teacher in Cockrel was plainly carrying
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out public duties, thus implicating Garcetti. Therefore, if the case were to be decided today, the teacher would not likely prevail. Or, as put by the Seventh Circuit, Cockrel is “inconsistent with later authority and unpersuasive.” Mayer v. Monroe County Community School Corp., 474 F.3d 477, 480 (7th Cir. 2007).
b. The Downs case supports that teachers cannot teach what they want to high school students.
Defendants could locate no case in the Ninth Circuit holding that a teacher’s curricular speech does not touch on a matter of public concern. The case closest on point, as acknowledged by the District Court [1 ER 025], is Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000). In Downs, the Ninth Circuit held that where a school is a governmental speaker, a teacher has no First Amendment rights to present a message on campus contrary to the school’s viewpoint. Id. at 1012-1013. There, as part of an “Education for Diversity” platform, a high school had bulletin boards on school grounds where staff could post displays celebrating tolerance for gays and lesbians. Id. at 1006. The school’s administration had the ultimate say on what could be posted on the bulletin boards. Id. A teacher opposed to gay rights created a competing bulletin board across the hall from his classroom, containing writings with religious, anti-gay sentiments. Id. at 1006-1007. The school ordered the teacher’s bulletin board taken down, and the teacher sued for violation
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of his free speech and equal protection rights. Id. at 1007-1008. The Ninth Circuit affirmed the District Court’s dismissal of the plaintiff’s complaint, holding that the government, not the teacher, was the speaker, and where the government is speaking, it need not tolerate messages from its employees that are contrary to its viewpoint. Id. at 1012-1012.
Furthermore, pertinent to the discussion here concerning speech pertaining to a school’s curriculum, the Downs court noted: “Whether or not the bulletin boards by themselves may be characterized as part of the school district’s ‘curriculum’ is unimportant, because curriculum is only one outlet of a school district’s expression of its policy. Nevertheless, our decision is consistent with cases holding that school teachers have no First Amendment right to influence curriculum as they so choose. [Citations]. Downs, supra 228 F.3d at 1016-1017. Thus, by its own terms, the Downs case is consistent with the cases in the other Circuits cited above.
Here, the facts are not much different. The School has the right to control what is placed in the classroom. Even though the School permits teachers to decorate their own classrooms, there are limits as to what the School permits by policy and by practice. So Johnson has the same rights as the teacher in Downs. The fact that Johnson’s banners were displayed in a classroom rather than a hallway is of no matter; the classroom is an extension of the school hallway as in Downs. The
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classroom is not Johnson’s personal space, it is the space where he interacts with students and parents. Here, there is no dispute that Johnson was speaking to students through his banners. He is speaking on behalf of the government when educating students, and therefore his viewpoint may be limited.
c. The case most on point is a Fourth Circuit case holding that teacher postings in a classroom are curricular and not afforded First Amendment protections.
A recent case from the Fourth Circuit is directly on point. Lee v. York County Sch. Div., 484 F.3d 687 (4th Cir. 2007). In Lee, a Spanish teacher posted what the school deemed to be “overly religious” material on bulletin boards in his classroom. Id. at 689. These items included (1) a 2001 National Day of Prayer poster, featuring George Washington kneeling in prayer; (2) a news article entitled “The God Gap”; (3) a news article entitled “White House Staffers Gather for Bible Study”; (4) a news article detailing the missionary activities of a former Virginia high school student who had been killed when her plane was shot down in South America; and (5) a June 2001 Peninsula Rescue Mission newsletter, highlighting the missionary work of that student. Id. at 690. The school principal removed the teacher’s items from his classroom, believing them to be violative of the Establishment Clause. Id. at
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690-691. The teacher sued for violation of his First Amendment rights. The district court granted summary judgment in the school’s favor.
The Fourth Circuit affirmed, holding that “under the Pickering-Connick balancing standard Lee’s classroom postings do not constitute speech concerning a public matter, because they were of a curricular nature. Thus, Lee cannot use the First Amendment to justify his assertion that he is free to place his postings on the classroom bulletin boards without oversight by the School Board.” Id. at 694. The court noted that the removed items were curricular, as opposed to the teacher’s own speech because they “were constantly present for review by students in a compulsory classroom setting. As a general proposition, students and parents are likely to regard a teacher’s in-class speech as approved and supported by the school, as compared to a teacher’s out-of-class statements.” Id. at 698. Furthermore, the items were “plainly ‘designed to impart particular knowledge’ to the students in Lee’s classroom,” even though he taught Spanish, and the removed items had nothing to do with the Spanish language. Id. at 699. Accordingly, the court found that “the dispute over Lee’s postings of the Removed Items is nothing more than an ordinary employment dispute,” and therefore affirmed the trial court. Id. at 700; see also Borden v. School Dist. of Tp. of East Brunswick, 523 F.3d 153, 168-169 (3rd Cir. 2008) [a high school
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coach praying silently with his interscholastic sports team has no First Amendment right to do so because his speech was not a matter of public concern].
Based upon the precedent of this Circuit, as well as the other Circuits, this Court should hold that Johnson, as a teacher, does not have First Amendment rights to display his banners because they are curricular and therefore do not touch on a matter of public concern.
3. Johnson’s Banners Are Not Private Citizen Speech; Rather, He Is Speaking Pursuant to his Official Duties or As a Public Employee.
If this Court finds in Johnson’s favor as to the first Eng factor, then second factor is whether Johnson was speaking as a private citizen or a public employee. The District Court impliedly found that Johnson was speaking as a private citizen, and erred by doing so.
a. Garcetti is applicable to high school teacher speech. The Supreme Court recently addressed the “citizen” test in Garcetti, supra. In that case, an assistant district attorney wrote a memo to his supervisor recommending dismissal of a particular criminal case because the affidavit police used to obtain a critical search warrant was inaccurate. Garcetti, supra, 547 U.S. at 414. The assistant D.A. was criticized by his supervisors for writing the memo and demoted.
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Id. at 415. He then sued his employer under 42 U.S.C. § 1983 for retaliation in violation of his First Amendment rights. Id.
The Garcetti court upheld the use of the Pickering test to determine the public employee’s free speech rights in the workplace. Garcetti, 574 U.S. at 418.
Under the traditional Pickering test, a public employee’s speech enjoys First Amendment protections if (1) the employee is speaking as citizen, (2) on a matter of public concern, and (3) the public entity has no adequate justification for treating the employee differently from any other member of the general public. Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 1958 (2006).
Garcetti, however, clarified the definition of “citizen” under the first prong of the Pickering test. Id. at 421. The Supreme Court explained that the focus should not be on the content of the speech, but on the role the speaker occupied when the speech was made. Id. at 421. Using that standard, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Id.
But Garcetti expressly left open the question of whether this new gloss on the Pickering test should be applied to the world of public academia, where there are different free speech concerns, such as academic freedom. Id. at 425. To that end, the majority opinion noted: “There is some argument that expression related to
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academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Id.
Like the Supreme Court, the Ninth Circuit also has not addressed whether Garcetti should apply to teaching (although Garcetti has been applied to one nonteacher school case, Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008), and in non-school public employee speech cases4). Therefore, Garcetti’s application to a high school teacher’s speech in the classroom is a novel question in the Ninth Circuit. If Garcetti applies to this case, and Johnson’s banners consist of speech made pursuant to his official duties, as the School argues, then Johnson has no First Amendment right to display his banners, and the inquiry ends there.
The Garcetti gloss on Pickering should be applied to high school teachers, just as the Ninth Circuit has applied it in non-academia cases. The Supreme Court’s concerns raised in Garcetti are not present here. Johnson is not writing for an
4 See Eng, supra, 552 F.3d at 1071; Huppert, supra, 574 F.3d at 704; see also Anthoine v. North Central Counties Consortium, 605 F.3d 740, 745 (9th Cir. 2010).
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academic journal or conducting research on behalf of an institution of higher learning. Rather, his speech is directed to high school students during the school day. Academic freedom is not at issue, particularly since Johnson teaches mathematics, a discipline completely unrelated to the banners’ messages. Moreover, the Ninth Circuit has already held that a high school teacher speaks for the school when speaking to students during the school day, even on issues unrelated to course content. Peloza, supra, 37 F.3d at 522. Peloza therefore stands for the same notion as Garcetti, i.e., that public employee speech made pursuant to official duties does not receive First Amendment protections.
b. The Seventh Circuit has applied Garcetti to teacher classroom speech.
The School urges this Court to apply Garcetti to teacher-speech cases where the teacher is speaking to students in the classroom setting, similar to the Seventh Circuit’s analysis in Mayer v. Monroe County Community School Corp., 474 F.3d 477 (7th Cir. 2007). Mayer held that a teacher, while teaching students, is engaged in her official duties, and thus not afforded First Amendment protections in line with Garcetti. Id. at 480. There, the elementary-school teacher took a certain political stance in her class concerning the Iraq war. The teacher claimed that the school district did not renew her teaching contract because of her stance. Id. at 478. The
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district court dismissed the teacher’s complaint, and the Seventh Circuit affirmed, explaining that teachers may not introduce their own views on a particular subject, but “must stick to the prescribed curriculum—not only the prescribed subject matter, but also the prescribed perspective on that subject matter.” Id. at 479. This is because “the school system does not ‘regulate’ teachers’ speech as much as it hires that speech. Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary.” Id. Accordingly, the Court concluded that the “Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.” Id. at 480.
c. Johnson’s speech was made pursuant to official duties, and therefore is not afforded First Amendment protections.
Johnson’s banners are both curricular in nature and speech made pursuant to his duties as a teacher. Had Johnson not been a teacher, then he would have no right to decorate a classroom. Under the School’s policies and practices, only teachers— not others—have permission to display items in their respective classrooms, within certain limits. 3 ER 473-474; 475. The fact that Johnson’s banners were not used to teach math does not change the fact that were displayed to students, who could attribute the messages to the School. Peloza, supra, 37 F.3d at 522. There was no evidence that Poway permitted non-teachers (or students not under faculty direction)
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to display items on the walls in School classrooms. In fact, under the California Education Code, if Johnson was not an employee or parent/guardian of a student, he would need permission just to visit a classroom during the school day. Cal. Educ. Code, § 32211, subd. (a).
Moreover, the students in Johnson’s class, who are obligated to be there, are subject to viewing the very large banners throughout class time. The banners are designed to impart information to the students. By Johnson’s own admission, the phrases on the banners were chosen not just to promote the nation’s heritage, but also to espouse religion over non-religion. 3 ER 497. So this case is not about a private citizen speaking in the classroom, it is about a school employee speaking to students and others on public school grounds during school hours. Accordingly, the District Court erred by not holding that Johnson’s banners consist of speech made pursuant to his official duties, and thus not are not afforded First Amendment protections.
4. Even if the speech is deemed to be by a private citizen, then the Ninth Circuit’s Pickering-style balancing analysis weighs in the School’s favor.
If this Court finds that Johnson spoke as a private citizen, then the next applicable Eng factor is the fourth: whether the public employer’s decision in
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stopping the speech outweighs the employee’s right to make that speech.5 The answer is “yes”: Johnson’s interest in displaying banners advocating a connection between the United States and the Judeo-Christian religion is outweighed by the School’s interest in avoiding the impression of advocacy of religion in the public schools, especially when that apparent religious advocacy is directed pointedly at students during class time.
The Ninth Circuit has traditionally applied a “slight variation” of the Pickering balancing test to cases involving religious speech made by a public employee in the workplace, which balances the employee’s right to speak against the public employer’s mission to be free of Establishment Clause entanglement. Berry v. Department of Social Services, 447 F.3d 642, 650 (9th Cir. 2006). This test was used in Eng with respect to the fourth factor in that case. Eng, supra, 552 F.3d at 1071.
a. Peloza permits schools to restrict religious speech by teachers to students.
The Ninth Circuit applied this test in Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir.1994). Berry, supra, 447 F.3d at 650 [noting that Peloza applied
5 The third Eng factor is whether the school took an adverse employment action against the employee because of the speech. That element does not apply, because the School did not discipline nor reprimand Johnson. But the School did instruct Johnson to remove the banners.
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this balancing test]. In Peloza, the teacher wanted to teach creationism, and wanted to refer to the theory of evolution as a religion. The school did not agree. Ultimately, the Court ruled that the “school district’s interest in avoiding an Establishment Clause violation trumps Peloza’s right to free speech.” Peloza at 522. In balancing the respective parties’ rights, the Peloza court recognized that, as a teacher in a public school, Peloza had a right to free speech, stating: “The school district’s restriction on Peloza’s ability to talk with students about religion during the school day is a restriction on his right of free speech.” Id. But the court made it very clear that a teacher may not discuss religion during instructional time in a public school: “While at the high school, whether he is in the classroom or outside of it during contract time, Peloza is not just any ordinary citizen. He is a teacher. He is one of those especially respected persons chosen to teach in the high school’s classroom. He is clothed with the mantle of one who imparts knowledge and wisdom. His expressions of opinion are all the more believable because he is a teacher. The likelihood of high school students equating his views with those of the school is substantial.” Id. The Court held that permitting Peloza to discuss religion during school time would violate the Establishment Clause: “To permit him to discuss his religious beliefs with students during school time on school grounds would violate the Establishment Clause of the First Amendment. Such speech would not have a secular purpose, would have the
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primary effect of advancing religion, and would entangle the school with religion. In sum, it would flunk all three parts of the test articulated in Lemon v. Kurtzman, [citation omitted].” Id. Similarly, the School contends that Johnson’s banners advocate his view of religion during the school day. Under Peloza, the balancing weighs in the School’s favor.
b. The Berry and Tucker cases reaffirmed use of the Pickeringstyle test for religious speech cases.
The Ninth Circuit reaffirmed the use of this balancing test in a case involving religious speech of a public employee in Berry, supra. There, a county employee’s primary duties were to assist unemployed and underemployed clients in their transition out of welfare programs. These duties frequently required the employee to conduct client interviews. The department told the employee that he could not talk about religion with clients and the agencies the employees contacted, but that he was permitted to talk about religion with his colleagues. Berry, 447 F.3d at 646. The employee also displayed a Spanish-language Bible on his desk, and hung a sign that read “Happy Birthday Jesus” on the wall of his cubicle. Id. at 647. The department told him to remove the Bible from view of clients, and to remove the word “Jesus” from the sign on his cubicle. Id. The employee sued, claiming, in part, that his
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speech rights under the First Amendment were violated. Id. at 645. The district court granted summary judgment for the county department, and the Ninth Circuit affirmed.
The Berry court balanced the Department’s fear of an Establishment Clause violation against the employee’s right to free speech. “The Department . . . must run the gauntlet of either being sued for not respecting an employee’s rights under the Free Exercise and Free Speech clauses of the First Amendment or being sued for violating the Establishment Clause of the First Amendment by appearing to endorse its employee’s religious expression. The Pickering balancing test recognizes these important, but sometimes competing, concerns and allows a public employer to navigate a safe course.” Berry at 649-650. The Court decided that the employee could not display items to clients or speak to clients about religion, because the employer’s interest in avoiding an Establishment Clause violation (since the material could be viewed by members of the public) outweighed the employee’s right to free speech. “Applying the Pickering test to the Department’s restriction on Mr. Berry’s speech with clients, we determine that the restriction is reasonable. The Supreme Court has reiterated that avoiding an Establishment Clause violation may be a compelling state interest.” Berry, at 650.
Another case using this balancing test is Tucker v. State of Cal. Dept. of Educ., 97 F.3d 1204 (9th Cir. 1996). In Tucker, a public employee challenged a state
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department’s broad ban on two categories of speech: (1) religious advocacy by the employee, written or oral, in the workplace; and (2) storage or display of religious artifacts, information and materials. Tucker, supra, 97 F.3d at 1208-1209. Using the Pickering-style balancing test, the court first held that the employer could not prevent the employee from speaking with other employees to advocate religion. Id. at 1213. However, in reaching this conclusion the court specifically stated that the plaintiff was to be treated differently from school teachers because the plaintiff was not interacting with the public, where the public might construe a teacher’s speech to be the government’s speech: “A teacher appears to speak for the state when he or she teaches; therefore, the department may permissibly restrict such religious advocacy. [Citations]. Similarly, the department may, at least under some circumstances, prevent at least some of its employees from advocating religion in the course of making public speeches on education.” Id.
The Tucker court next addressed whether the state’s broad ban on display of religious items violated the First Amendment. The court noted that the state had a strong argument that permitting posting of religious material in the interior space of a building may give the appearance of government endorsement of that material. Id. at 1215. To that end, the court stated that “there is a legitimate state interest in preventing displays of religious objects that might suggest state endorsement of
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religion. The state has a legitimate interest, for example, in preventing the posting of Crosses or Stars of David in the main hallways, by the elevators, or in the lobbies, and in other locations throughout its buildings. Such a symbol could give the impression of impermissible government support for religion.” Id. at 1216. The Tucker court found a problem with the broad ban instituted by the state, however, because members of the public had no access to the plaintiff’s office, and there were lesser means to control the speech instead of a flat ban of religious displays. Id. at 1215-1216.
c. The common thread through Peloza, Berry, and Tucker is that where members of the public have access to the employee’s religious speech, the public employer may restrict it.
The only clear distinction between Tucker — were the employee was permitted to speak about religion and display religious materials — and Peloza and Berry — where the employee was not permitted to speak about religion or display religious materials — is in the identity of the people to whom the religious advocacy was directed. In Tucker, the employee did not have direct contact with clients; his speech and display were directed only to other employees. Tucker at 1213. In Berry, the employee was speaking and displaying his religious material directly to clients of the employer. Berry at 650-651. Similarly, in Peloza, the teacher was prohibited from
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speaking directly to students and from teaching in class about religion. Peloza at 522. So, if Johnson’s banners are directed to members of the public, including students, then the School’s legitimate concerns that Johnson’s banners may be viewed by the public/students as the government advocating religion in violation of the Establishment Clause.
d. Johnson’s banners were directed toward students. In the case at bar, the banners were directed at students and were not directed to teachers in other classrooms, nor to the administrators in their respective offices and sites. The banners, however, were clearly visible to any student attending Johnson’s class. There is no evidence that the banners were seen by a School administrator until brought to the attention of Principal Kastner by a teacher at Westview High. And students are required to come to class. They can be arrested if truant. Cal Educ. Code, § 48264. Students have diverse beliefs. They may be Christians or Jews, who have beliefs consistent with the banners, but some undoubtedly are Muslim, Buddhist, Scientologist, or Atheist, and might be troubled by those banners. Their rights are not inferior to Johnson’s rights. Their rights should be given great consideration in this balancing equation.
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e. The banners advocated religious belief. These banners advocated a religious belief. The District Court erred in holding otherwise. It is no secret what Johnson was doing: He selected from among very few national historical documents only those phrases that referenced God, because he intended to advocate the belief that the United States is a Christian nation. As Associate Superintendent Chiment aptly described to Johnson: “The prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, and which all include the word ‘God’ or ‘Creator,’ has the effect of using your influence as a teacher to promote a sectarian viewpoint. 3 ER 461. The Ninth Circuit has instructed on the importance of “context” in the analysis of religious statement. Newdow v. Rio Linda Union School Dist., 597 F.3d 1007, 1019 (9th Cir. 2010) (“Rio Linda”). The context of these phrases is patriotic and religious, but with the purpose of advocating the religious concept. There is no other context. Around one banner, Johnson has placed pictures of landscapes, presumably to show that God has shed his grace on the United States. That is a religious context. Johnson clearly intended to connect the United States with God, for the purpose of advocating the idea that the United States believes in God; Johnson believes in God; so the students should believe in God, too. That is pure advocacy of religion.
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f. The display of Johnson’s banners violates the Establishment Clause.
The school is correct to fear an Establishment Clause violation if Johnson is permitted to display his banners, as they violate the both the “Lemon” and “endorsement” tests.
The Lemon test states that the speech (1) must have a secular purpose; (2) its principal and primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Johnson’s banners violate all three prongs. First, the banners do not have a secular purpose. By Johnson’s own admission, the phrases on the banners were chosen not just to promote the nation’s heritage, but also to espouse religion over non-religion. 3 ER 496-497. This is also evidenced by the use of the word CREATOR on the “Declaration” banner. The word “CREATOR” occupies its own line, is about twice as big as the other words on the banner, and is the only word in ALL CAPS, as if shouting to be noticed. Johnson said that the reason the word CREATOR is bigger is because he wanted to emphasize a supreme being’s role in giving man his rights. 3 ER 495. This emphasis does not have a secular purpose.
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Second, the principal and primary effect of the banners is to advance religion. Each of the five phrases, standing alone, might not run afoul of the First Amendment due to the historical implications of the phrases. See, e.g., Aronow v. United States, 432 F.2d 242 (9th Cir. 1970) [national motto “In God We Trust” on currency does not violate Establishment Clause], but see Rio Linda, 597 F.3d at 1019, fn. 9 [phrase “One Nation Under God,” standing alone, might violate the Establishment clause]. When all of the phrases are combined, however, they accumulatively de-emphasize the patriotic aspects of the speech, and instead emphasize the religious aspects of the speech. The secondary religious meaning behind each individual phrase becomes the primary meaning when strung together. In short, when viewed in their totality, the banners’ combined message is less about Nation, and more about God. Thus, the primary effect is to advocate in favor of Christian religion.
Finally, Johnson’s banners foster excessive government entanglement with religion, because he is a teacher speaking to students: “A teacher appears to speak for the state when he or she teaches; therefore, the department may permissibly restrict such religious advocacy.” Tucker, supra, 97 F.3d at 1213 (9th Cir. 1996), citing Peloza, 37 F.3d at 522.
The banners’ display also runs afoul of the “endorsement” test, which was first articulated by Justice O’Connor, and later adopted in County of Allegheny v. ACLU,
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492 U.S. 573, 578-79 (1989). The endorsement test asks “whether the challenged governmental action has the purpose or effect of endorsing, favoring, or promoting religion, particularly if it has the effect of endorsing one religion over another.” Id. at 593-94. Justice O’Connor was concerned with government action that made some people feel like outsiders. “Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984).
Here, the banners’ effect on students was the Principal’s primary concern. She was concerned because the phrases were “taken out of context and very large, they became a promotion of a personal viewpoint.” 3 ER 385. She was concerned that some students may not share Johnson’s viewpoint: “I asked him, ‘If an Islamic student walks into your classroom and sees all of these phrases, they may feel” . . . “If a student walks in and sees this, they man feel like, Wow, I’m not welcome, or, I’m not gonna fit in this classroom. And they may feel bad.” 3 ER 385. The Principal’s concern is exactly parallel to Justice O’Connor’s concern: that the government’s message communicated endorsement of religion and exclusion of nonadherents. The School had the right to direct removal of the banners.
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g. Johnson’s banners also violate the School’s policies. An additional reason supporting the School’s removal of the banners is that the display of the banners violates School Policy and Procedure. Under AP 3.11.2, teachers are expected “to refrain from using classroom teacher influence to promote partisan or sectarian viewpoints.” 3 ER 465. Students also have “the right to form and express individual opinions on controversial issues without jeopardizing relations with teachers or others” under the policies. 3 ER 466. The District is certainly within its rights to remove the banners to ensure that the students’ rights to have an opinion on religion does not jeopardize their class standing should the students wish to make their opinions known. 5. District Court erred by applying a forum-test. The District Court found that a forum analysis applied to Johnson’s display of the banners. 1 ER 12-14. The District Court erred primarily because this “is not a case involving the risk that a private individual’s private speech might simply ‘bear the imprimatur’ of the school or be perceived by outside individuals as ‘school-sponsored.’” Downs, supra, 228 F.3d at 1012. And Downs noted that where the school itself is the speaker, the analysis is not controlled by Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) or Planned Parenthood v. Clark County Sch. Dist.,
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941 F.2d 817 (9th Cir. 1991). Here, Johnson is acting on behalf of the school, consistent with the analysis in Peloza and Mayer.
Moreover, the School did not intend to create a limited public forum. To create such a forum, the government must make an affirmative choice to open up its property for use as a public forum. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 802-803 (1985). “The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.” U.S. v. American Library Ass’n, Inc., 539 U.S. 194, 206 (2003). The school’s policies show that teachers may decorate their classroom, but that the School has the ultimate say.
Additionally, the Ninth Circuit has been very clear that a forum test does not apply to cases involving a public employee’s religious speech in the workplace. For example, in Tucker, the court stated: “The interior walls of the offices of the Child Nutrition and Food Distribution Division are neither a public forum, nor a limited purpose public forum.” Tucker, supra, 97 F.3d at 1214. This Circuit has also flatly rejected other tests. Berry, supra, 447 F.3d at 649-650 [“we adhere to our practice of applying a balancing test when confronted with constitutional challenges to restrictions on public employee speech in the workplace” and “[T]he Pickering
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balancing approach applies regardless of the reason an employee believes his or her speech is constitutionally protected.”].
Nor does Tinker control. Tinker involved the rights of students to speak on school grounds, not the rights of teachers. Moreover, “Tinker did not alter the test that the Supreme Court established to evaluate the speech of a public employee” in Pickering and Connick. See Borden, supra, 523 F.3d at 168, fn. 8.
For all of the above reasons, the School did not violate Johnson’s free speech rights under the First Amendment by directing him to remove the banners. C. Teacher Speech Protections Under the California Constitution Are
Treated the Same as the Federal Constitution, So There Was No Violation. Johnson’s Fourth claim is his free speech claim under the California Constitution. “Article 1, section 2 of the California Constitution provides independent protection for free speech which in certain contexts exceeds the protection provided by the First Amendment to the United States Constitution.” California Teachers Assn. v. Governing Board, 45 Cal.App.4th 1383, 1391 (1996). But in the context of the classroom activities of teachers, the California constitutional protections are identical to the federal protections: “We find the federal authorities which discuss First Amendment principles in the fairly unique context of school regulation of curricular activities accurately weigh the competing interests of school
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administrators, teachers and students.” Id. Moreover, the court in California Teachers Assn. held that with respect to teacher speech inside the classroom, “school authorities retain the power to dissociate themselves from political controversy by prohibiting their employees from engaging in political advocacy in instructional settings.” Id. at 1391. Accordingly, the District Court erred by not granting summary judgment of the Fourth claim in the School’s favor. D. The School Did Not Violate the Establishment Clauses of Either the U.S.
or California Constitution. The District Court held that the School violated the Establishment Clause of both the United States and California constitutions by allegedly disapproving of Johnson’s religion while advocating other religions and non-religion. 1 ER 26-29. The District Court erred in its holding because the School was doing nothing of the sort, and violated neither the Lemon test6 nor the endorsement test, both discussed earlier. The School also did not violate the “coercion” test, which states that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which
6 The Lemon test is used by the California appellate courts in analyzing Establishment Clause claims under state law. See Catholic Charities of Sacramento, Inc. v. Superior Ct., 32 Cal.4th 527, 546 (Cal. 2004) (cert. denied 125 S.Ct. 53).
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establishes a state religion or religious faith, or tends to do so.” Lee v. Weisman, 505 U.S. 577, 587 (1992). None of the actions of the School coerced students to participate in religion or non-religion.
1. The School provided alternative materials containing the same language, but in context.
Contrary to the District Court’s view, the School was not trying to eradicate the notion of God or religion from its classroom. Rather, the opposite is true. Johnson was provided materials by the School which contained some of the same phrases on his banner, but in their historical national context. 3 ER 461, 528-530. Johnson had the option of displaying these items in lieu of his banners, but he chose not to because he did not “want to show agreement with the [school] district.” 3 ER 498-499. These items, if posted in their context, would alleviate any Establishment Clause entanglement. The District Court should not have overlooked this evidence in its analysis.
2. The District Court failed to consider the size and context of items displayed in other classrooms.
The District Court discussed some displays in other classrooms which the District Court held showed that the School was advocating other religions/nonreligions over Johnson’s religion. These items included the so-called “Tibetan Prayer
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Flags,” a John Lennon poster, a poster of the Dalai Lama, and a poster of Mahatma Gandhi. Those items were located during discovery in this case. Johnson’s declaration says that they were photographed in April 2009 during court-authorized inspection of classrooms. 2 ER 179, 182. There is no evidence that any of the Defendants knew about any of those items before that inspection and very little evidence of the context of the displays, with the exception of the Tibetan display.
The District Court’s ruling fails to analyze the purpose for which these items were displayed, e.g., whether a particular display was a student project or teacher decoration, and whether the classroom was for science, history, or other subject. The absence of that analysis was error.
Some of these items may have been displayed in a history class, with proper relevance and context. Certainly any study of modern Asian history would contain some reference to the Dalai Lama. Some of those items might have been put up by students in connection to some project. There is simply no evidence to show that context. Moreover, there is not any evidence that any individual Defendant knew about those items at all. The Defendants certainly cannot be held to have intended to discriminate on the basis of religion or speech if they did not know the content of those displays.
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In its written decision, the District Court printed the lyrics of the song, “Imagine” (taken from a John Lennon poster) in the same-sized font as the description of Johnson’s banners. But in reality, the type size was very different. 2 ER 202. A student would need to move very close to the poster to even be able to read the lyrics from that poster. Yet no student with normal vision seated at any desk in that classroom would fail to read the text of Johnson’s banners from their seat. The difference in the size goes directly to the issue of advocacy. Moreover, in context, the song is an anti-war song, not an anti-religion song. Lennon was suggesting that war is often caused by disputes over countries and religions.
Similarly, the District Court analyzed some flags that were called “Tibetan Prayer Flags” as if there was some way for a student in the room to know that those flags were Tibetan, or about prayer, or anything else. The teacher called them “Tibetan Prayer Flags” in her deposition. 3 ER 405. She said the purpose for the display was related to teaching about fossils on the top of Mount Everest, because people climbing Mount Everest place such flags at the top. 3 ER405-406. They were not displayed to advocate the Buddhist religion. She said she was opposed to the advocacy of religion in the classroom. 3 ER 409. Moreover, the writing on them was written in Sanskrit, a language that few people are able to read, and no one was able to translate. 3 ER 405-406. None of those flags are identifiably “Tibetan,” or
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religious, without external explanation. See, 3 ER 405. On one of those many flags, near the top of the flag, was depicted a small seated figure, which appears to be Buddha, surrounded with writing in Sanskrit. 2 ER 205. There is nothing else observable about these flags that would identify them as Buddhist, and nothing that could possibly proselytize Buddhism as a religion. Standing alone, they do not advocate anything. In context, they are nothing more than decoration, but they can be used to discuss “the accomplishment of an amazing goal.” 3 ER 406, p. 89:9.
The District Court apparently concluded that the display of a poster of Mahatma Gandhi was advocacy of the Hindu religion. 1 ER 5, 15, 27. But Gandhi is better known for nonviolent resistance to the British Empire than for his Hindu religion. Similarly, the District Court concluded that a poster of the Dalai Lama was about the religion of Buddhism rather than about resistance to oppression by Communist China against the former nation of Tibet. 1 ER 5. Similarly, a poster of Malcolm X is identified as a “Muslim minister” rather than a civil rights leader; every high school teaches 1960's American history, where both Martin Luther King and Malcolm X were prominent historical figures. In short, each of these posters depict people of influence on subjects other than religion, even though they may touch on religion. There is no context, nor any identification of the reason for the display, or the type of classroom they were displayed within.
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But most importantly, these other items do not advocate religion, which is what the School’s policy and regulation prohibits. 3 ER 465. The District Court ignored this policy completely. “The removal of materials from the classroom is acceptable when it is determined that the materials are being used in a manner that violates Establishment Clause guarantees. Thus, the Establishment Clause focuses on the manner of use to which materials are put; it does not focus on the content of the materials per se. For example, [] books about American Indian religion could be used in violation of the Establishment Clause if they were taught in a proselytizing manner. Because they were not so used, however, those books do not violate the Establishment Clause by the very existence of their content.” Roberts v. Madigan, 921 F.2d 1047, 1055 (10th Cir. 1990). On the other hand, Johnson’s banners were designed by him to advocate a particular religious belief associated with America. They were on display, and not sitting folded on a desk.
In short, the School was not advocating other religions or non-religion over Johnson’s religion. The District Court erred in holding that the School violated the Establishment Clause. E. The School Did Not Violate Equal Protection Clause.
To establish a claim under the Equal Protection Clause, Johnson must show that Defendants’ actions resulted in him receiving disparate treatment compared to
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other similarly-situated employees. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Equal protection claims require strict scrutiny if the legislation discriminates against a suspect class or impinges upon a fundamental right. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The Equal Protection Clause may give rise to a cause of action even if the plaintiff does not allege membership in a class or group. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). However, this type of equal protection challenge is evaluated under a rational-basis test to determine whether the legislation at issue is irrational or wholly arbitrary. Conti v. City of Fremont, 919 F.2d 1385, 1389 (9th Cir. 1990). In equal protection claims brought by a “class of one,” the plaintiff must allege that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336 (1989).
Here, Defendants’ actions did not impinge on any fundamental right of Johnson. He is free to hold his own religious beliefs. If he has a personal area in the classroom that is not accessible to students, he can keep religious items there. But when students or clients/parents are present, he does not hold speech rights with respect to speech made to them during the school day in his capacity as a teacher.
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And, as explained above, the District was not trying to rid the classroom of all religious references, as the District Court presumed. Johnson was treated the same with respect to display of speech touching on religion as any other teacher.
Finally, the School has a legitimate state interest in ensuring that all points of view, and not one single viewpoint, are heard by the students in the classroom. The School felt that Johnson’s banners did not comply with its policy prohibiting advocacy of a sectarian viewpoint, including religion. The School’s decision was therefore narrowly tailored to achieve an important government interest. There was no Equal Protection violation, and the District Court erred in so holding. F. The School Did Not Violate the “No Preference Clause” of the California
Constitution. California’s No Preference Clause reads: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed.” Cal. Const. art. I, § 4. “California courts have interpreted the No Preference Clause to require that the government neither prefer one religion over another nor appear to act preferentially.” Brown v. Woodland Joint Unified School Dist., 27 F.3d 1373, 1384 (9th Cir. 1994), citing Sands v. Morongo Unif. Sch. Dist., 53 Cal.3d 863, 872-878 (1991). As explained in detail above, the School did not direct the removal of Johnson’s banners with an eye to advancing one religion over another. On the
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contrary, the School was concerned that Johnson himself was trying to advance his religion over non-religion and over other religions by hanging his banners. The intent of the school was to maintain neutrality concerning religion. Hence, the District Court erred in holding for Johnson on this claim also. G. If the Court Finds A Constitutional Violation, Qualified Immunity Should
Still Shield the Individual Defendants. Qualified immunity shields public employees from liability for civil damages where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “When governmental officials assert the defense of qualified immunity to an action under 42 U.S.C. § 1983, a court evaluating the defense must first determine whether the plaintiff has alleged the deprivation of a constitutional right and, if so, then determine ‘whether the right was clearly established at the time of the alleged violation.’” Cole v. Oroville Union High School Dist., 228 F.3d 1092, 1101 (9th Cir. 2000). The task is determining whether the preexisting law provided the defendants with “fair warning” that their conduct was unlawful. Hope v. Pelzer, 536 U.S. 730, 740 (2002). In the case at bar, the District Court denied the individual Defendants’ request for qualified immunity, and awarded damages against these school administrators and
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elected school board members. The District Court found that “the law has been clearly established since Tinker that school teachers enjoy First Amendment rights inside the schoolhouse gates.” 1 ER 31, citing Morse v. Frederick, 551 U.S. 393 (2007). The Court also found that “[i]t is also clearly established law that where free speech is permitted, the government may not discriminate based on the speaker’s viewpoint.” 1 ER 31.
1. Contrary to the District Court’s opinion, the law is unsettled. Contrary to District Court’s holding, the law is not clearly established in favor of teacher speech in the classroom. In fact, the majority of the cases would point to a limitation on teachers’ rights, and forbid school districts from displaying such banners. Even if Johnson’s banners are entitled to constitutional protection, the individual defendants should be protected by qualified immunity because the law governing teacher-speech on the subject of religion in the classroom is not so well developed that a reasonable person would know the applicable rule. In fact, most reasonable people, upon review of all of the speech cases involving teachers, would conclude that the plainly established rule is that teachers cannot advocate religion in the classroom during instructional time. The clear holding in Peloza , supra, would make any school administrator who was familiar with that case absolutely certain that he or she had a obligation to stop
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a teacher from advocating about religion during the school day. Peloza — taken alone —should have been sufficient basis for the District Court to rule in favor of qualified immunity. The individual Defendants were justified in believing that teaching religious ideas during class time is a potential violation of the Establishment Clause, and that avoiding such violation overcomes any free-speech right of a classroom teacher. Most people familiar with the cases would reasonably conclude that Johnson’s banners were improper advocacy of a religion, and impermissible in the classroom during class. Or at least they would say it was a close call — too close to hold individuals liable.
2. The School’s administrators were not insensitive to Johnson’s beliefs.
Just a couple of years before the events in this case, the Ninth Circuit ruled that the words “one Nation under God” in the Pledge of Allegiance were illegal when recited in the classroom. Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2005). After that event, another case was filed by Mr. Newdow, and subsequently the Ninth Circuit has ruled that the phrase “one Nation under God” is not a problem, in the context of the entire Pledge. Rio Linda, supra, 597 F.3d 1007, 1013-1014.
A reasonable person could be excused for believing that the phrase “one Nation under God,” enlarged on the wall of a classroom, would take the phrase out of context
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of the Pledge, and make it less than appropriate in the classroom. When placed on the wall—along with other phrases containing references to God — the context shifts, and the context becomes a message proclaiming the national endorsement of the Judeo-Christian religion. That shift in context argues strongly that the law is not clearly established, and the administrators could not have known the correct rule to apply.
And the school administrators in this case were not insensitive to Johnson’s rights. The Associate Superintendent offered posters to Johnson placing each of the phrases in historical context. 3 ER 426. Johnson rejected the request to substitute those posters. Id. Like the majority opinion in Rio Linda, the school administration believed that a message’s context is important.
This case also involves issues of the Establishment Clause that are not wellsettled. As Justice Souter recently indicated in a concurrence, “The interaction between the ‘government speech doctrine’ and Establishment Clause principles has not, however, begun to be worked out.” Pleasant Grove City, Utah v. Summum, __ U.S. __, 129 S.Ct. 1125, 1138 (2009).
The relationship between religion and the state is difficult for judges to determine. If appellate-court judges cannot agree, then the law is not settled, and school administrators cannot be held to know what the law is. Accordingly, if this
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Court affirms the District Court with respect to Johnson’s claims against the School District, then it still should reverse with respect to qualified immunity and have summary judgment entered in favor of the individual Defendants.

VIII. CONCLUSION

The School urges this Court to reverse the judgment of the District Court and

to enter summary judgment in favor of the School and individual Defendants. If the

Court finds a constitutional violation, then the Court should still enter summary

judgment in favor of the individuals based upon qualified immunity.

Respectfully Submitted,

DATED: July 16, 2010

STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation

By:

s/ Paul V. Carelli, IV

PAUL V. CARELLI, IV

Attorneys for Defendants/Appellants

Poway Unified School District; Jeff Mangum;

Linda Vanderveen; Andrew Patapow; Todd

Gutschow; Penny Ranftle; Dr. Donald A.

Phillips; William R. Chiment; and Dawn

Kastner

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CERTIFICATE OF COMPLIANCE This brief complies with the length limits set forth at Ninth Circuit Rule 32-4 as determined by the word processing program used to generate the brief. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
s/ Paul V. Carelli IV PAUL V. CARELLI, IV Attorney for Appellants
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STATEMENT OF RELATED CASES Appellants are not aware of any related cases pending before the Court of Appeals.
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9th Circuit Case Number(s) 10-55445

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July 1, 2010

Charles S. LiMandri, Esq. P.O. Box 9120 Rancho Santa Fe, CA 92067

Robert J. Muise, Esq. P.O. Box 393 Ann Arbor, MI 48106

Re: Johnson v. Poway Unified School District, et al. USDC Case No.: 07-CV-00783-BEN (LSP)

Dear Mr. LiMandri and Mr. Muise:
Please be advised that the U.S. Court of Appeals for the Ninth Circuit has telephonically granted the Appellants Poway Unified School District, et al., a 14-day extension of time to file the Appellants' Opening Brief. Accordingly, the Opening Briefwill be due on July 16, 201 0. The Ninth Circuit clerk indicated during the telephone conversation that the Appellee's Brief will be due on August 16,2010.
Should you have any questions or concerns about this or any other matter, please feel free to contact me at your earliest convenience.

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 Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

2010 WL 768856 Only the Westlaw citation is currently available.
United States District Court, S.D. California.
Bradley JOHNSON, Plaintiff, v.
POWAY UNIFIED SCHOOL DISTRICT, et al., Defendants.
No. 07cv783 BEN (NLS). | Feb. 25, 2010.
Attorneys and Law Firms
Charles Salvatore Limandri, Law Offices of Charles S. Limandri, Rancho Santa Fe, CA, Robert J. Muise, Ann Arbor, MI, for Plaintiff.
Jack M. Sleeth, Jr., Paul Vincent Carelli, IV, Stutz Artiano Shinoff and Holtz, San Diego, CA, for Defendants.
Opinion
DECISION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT and DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ROGER T. BENITEZ, District Judge.
*1 May a school district censor a high school teacher’s expression because it refers to Judeo–Christian views while allowing other teachers to express views on a number of controversial subjects, including religion and anti-religion? On undisputed evidence, this Court holds that it may not.
Courts should not quickly intervene in the daily operation of schools and school systems, for that task is committed primarily to local school boards. However, in the proper case, federal courts “have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief.” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). “ ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ ” Id. (quoting Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960)). Because it has been clear for over 90 years that teachers do not lose their constitutional rights inside the schoolhouse gate, and that government may not squelch

one viewpoint while favoring another, the Poway Unified School District violated Plaintiff’s rights when it insisted that Plaintiff remove his two classroom banners.
Public schools play an important role educating and guiding our youth through the marketplace of ideas and instilling national values. One method used by the Poway Unified School District to accomplish this task is to permit students to be exposed to the rich diversity of backgrounds and opinions held by high school faculty. In this way, the school district goes beyond the cramped view of selecting curriculum and hiring teacher speech to simply deliver the approved content of scholastic orthodoxy. By opening classroom walls to the non-disruptive expression of all its teachers, the district provides students with a healthy exposure to the diverse ideas and opinions of its individual teachers. Fostering diversity, however, does not mean bleaching out historical religious expression or mainstream morality. By squelching only Johnson’s patriotic and religious classroom banners, while permitting other diverse religious and anti-religious classroom displays, the school district does a disservice to the students of Westview High School and the federal and state constitutions do not permit this one-sided censorship.
The case is before the Court on cross-motions for summary judgment. The Plaintiff is a high school math teacher, Bradley Johnson. Johnson’s Amended Complaint seeks summary judgment on his claims under the First Amendment of the U.S. Constitution and under Article I, Sections 2 and 4 of the California Constitution. He seeks a court order requiring the school district to permit re-hanging of the banners. He does not seek money damages (other than nominal damages). The Defendants are the Poway Unified School District, the Principal of Westview High School (where Johnson teaches), the Superintendent and Assistant Superintendent, and the members of the district board of education. The individual Defendants are sued in their official and individual capacities.
*2 For the reasons that follow, summary judgment is granted in favor of Plaintiff and against the several Defendants.
I. MOTION FOR SUMMARY JUDGMENT STANDARD
The legal standards to be applied to a motion for summary judgment are well known. Summary judgment is appropriate where the record demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P.
1

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

56(c); Celotex v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Farrakhan v. Gregoire, 590 F.3d 989, 1003–04 (9th Cir.2010).
II. FACTS
The facts are largely undisputed.
Johnson is employed as a public high school math teacher. He has taught math to students in the Poway Unified School District for 30 years and is he is a well-respected teacher. He currently is teaching at Westview High School, a school within the Poway Unified School District. Defendant Poway Unified School District is a public school entity established pursuant to California law. Defendant Kastner is the Principal of Westview High School. Defendants Phillips and Chiment are the Superintendent and Assistant Superintendent, respectively, of the Poway Unified School District. The remaining Defendants, Mangum, Vanderveen, Patapow, Gutschow, and Ranftle, are members of the Board of Education for the Poway Unified School District.
At Westview High School, Johnson is assigned a particular classroom for his math classes. He uses the same classroom for extra-curricular and non-curricular activities. Over the last two decades, Johnson has continuously hung banners on the wall of his assigned classrooms. Johnson purchased and displayed the banners using his own money. Throughout the many years that the banners hung on the wall of Johnson’s assigned classroom, there were no objections to the presence or messages of the banners from students, parents, or school administrators—until January 23, 2007. See Exhibit D, Defendants’ Exhibit List in Support of Motion for Summary Judgment (hereinafter “Defs’ Ex. List”) (letter from school district to Johnson regarding reasons for removal of banners).
Each banner is approximately seven feet wide and two feet tall. The banners have no pictures or symbols but are striped in red, white, and blue and set forth famous national phrases. One banner contains the following four phrases: “In God We Trust,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace On Thee.” This banner has hung in Johnson’s assigned classrooms for 25 years.
The second banner quotes from the Declaration of Independence, “All Men Are Created Equal, They Are Endowed By Their Creator.” “Creator” is in all uppercase letters. This banner has hung in Johnson’s classroom for 17 years. The banners occupy wall space with numerous

photographs of nature scenes, national parks, and posters of calculus solutions.
It is undisputed that Johnson did not hang the banners as part of the curriculum he teaches, nor did he use the banners during any classroom sessions or periods of instruction. Rather, Johnson hung his banners pursuant to a long-standing Poway Unified School District policy, practice, and custom of permitting teachers to display personal messages on their classroom walls.
*3 For at least the three decades Johnson has taught, Poway Unified School District has maintained a policy, practice, and custom of giving teachers discretion and control over the messages displayed on their assigned classroom walls. Teachers are permitted to display in their classrooms various messages and items that reflect the individual teacher’s personality, opinions, and values, as well as messages relating to matters of political, social, and religious concerns so long as these displays do not materially disrupt school work or cause substantial disorder or interference in the classroom. Because of this policy, practice, and custom, teachers have used their classroom walls as an expressive vehicle to convey non-curriculum related messages.
Other teachers at the four high schools in the Poway Unified School District, including Westview High School, display in their classrooms non-educational and non-curricular messages such as:
-a 35 to 40–foot long string of Tibetan prayer flags with writings in Sanskrit and images of Buddha. Ex. 24–26, Plaintiff’s Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (hereinafter “Ex. ___, PUMF”); Dep. of Brickley at 87:8–18, Ex. 5, PUMF.
-a large poster of John Lennon and the lyrics to the song “Imagine”:
Imagine there’s no Heaven, It’s easy if you try
No hell below us, Above us only sky
Imagine all the people, Living for today
Imagine there’s no countries, It isn’t hard to do
Nothing to kill or die for, And no religion, too
Imagine all the people, Living life in peace
You may say that I’m a dreamer, But I’m not the only one
I hope that someday you’ll join us, And the world will be as one ...
2

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

Ex. 24, PUMF (emphasis added).
-a poster of Hindu leader, Mahatma Gandhi. Ex. 47, PUMF.
-a poster of Hindu leader, Mahatma Gandhi’s “7 Social Sins”:
Politics without principle
Wealth without work
Commerce without morality
Pleasure without conscience
Education without character
Science without humanity
Worship without sacrifice. Ex. 48, PUMF.
-a poster of Buddhist leader, the Dali Lama. Ex. 49, PUMF.
-a poster that says: “The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality.” Ex. 151, PUMF.
-posters of Muslim minister, Malcolm X. Ex. 50–51, PUMF.
-a Greenpeace poster that says: “Stop Global Warming.” Ex. 64, PUMF.
-posters of rock bands Nirvana, Bruce Springsteen, and the Beatles. Ex. 52–56, PUMF.
-posters of professional athletes and sports teams. Ex. 74–80, PUMF.
-a poster of the movie “Monty Python’s Quest for the Holy Grail.” Ex. 86, PUMF.
-“Day of Silence” posters. Ex. 15, PUMF.
-bumper stickers that say: “Equal Rights Are Not Special Rights,” “Dare to Think for Yourself,” and “Celebrate Diversity.”1 Ex. 16, PUMF.

1

Ironically, while teachers in the Poway Unified School

District encourage students to celebrate diversity and

value thinking for one’s self, Defendants apparently

fear their students are incapable of dealing with diverse

viewpoints that include God’s place in American

history and culture.

-a Libertarian Party poster. Ex. 35, PUMF.
*4 -a poster with a large peace sign and the word “peace” in several languages. Ex. 37, PUMF.
-a mock American flag with a peace sign replacing the 50 stars and appearing to be six feet wide and four feet tall. Ex. 39, PUMF.
-an anti-war poster that asks: “How many Iraqi children did we kill today?” Ex. 41, PUMF.
-a pro-defense poster of a Navy aircraft carrier that says: “Life, Liberty and the Pursuit of All Who Threaten it” and appearing to be seven feet wide and four feet tall. Ex. 42, PUMF.
-posters of civil rights advocate Martin Luther King, Jr. Ex. 45 & 47, PUMF.
-a large poster that says: “Zero Population Growth.” Ex. 152, PUMF.
-a large poster of an American flag with the motto: “United We Stand.” Ex. 57, PUMF.
-a large poster of an American flag that says: “... life, liberty, and the pursuit of happiness.” Ex. 58, PUMF.
-flags with the historical political motto: “Don’t tread on me.” Ex. 62 & 63, PUMF.
-non-student artwork. Ex. 81, PUMF.
-life-sized cartoon characters. Ex. 89 & 93, PUMF.
-photographs and inspirational sayings. Ex. 69–73, PUMF.
Teachers control the messages conveyed by their classroom displays. Johnson’s banners have caused no disruption or interference in his classroom or elsewhere in the school. Likewise, the banners have not interfered with the basic educational mission of the school district.
In fact, over the years Johnson has taught in the Poway Unified School District, Johnson received no complaints about the banners from the many individuals who have been inside his classroom including: seven different principals, numerous school board members, superintendents, and assistant superintendents, over 4,000 students and several thousand parents of students.
Sometime in the fall of 2006, another math teacher, who may have disagreed with Johnson over pedagogy, asked Westview High School Principal Kastner why the banners were permitted. Kastner took time considering the matter and sought direction from district administrators.
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Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

Assistant Superintendent Chiment was assigned the task of investigating the banners and reporting to the school board. The full school board approved the decision to order Johnson to remove his classroom banners. Chiment testified that none of the individual phrases on the banners would be a problem, rather it was the combined influence that “over-emphasized” God. Chiment also testified that the problem was that the phrases were taken out of their original contexts. Chiment directed that a full copy of the Declaration of Independence and pictures of U.S. coins be delivered to Johnson so that Johnson could place them on the wall instead of his banners. Johnson declined. Johnson offered to post for display the full texts from which each of the banner phrases came, around the banners. Chiment disapproved. Dep. of Chiment at 134:24 to 135:6, Ex. E, and Dep. of Johnson at 128:7 to 133:21, Ex. F, Defs’ Ex. List.
*5 On January 23, 2007, Kastner ordered Johnson to remove the banners, telling Johnson the banners were impermissible because they conveyed a Judeo–Christian viewpoint. Dep. of Kastner at 137:13–21, Ex. 4, PUMF; Dep. of Chiment at 278:10–13, Ex. 3, PUMF. Defendants singled out Johnson for discriminatory treatment because of the viewpoint of his message. Deputy Superintendent, Dr. John P. Collins, testified about the policy permitting high school teachers to display personal messages. Dep. of Collins, Ex. 2, PUMF. Collins stated that neither the display of Tibetan prayer flags nor the display of the lyrics of Lennon’s “Imagine” appeared to violate the Poway Unified School District’s policy on posting controversial issues. Id. at 90:1 to 95:25. Posters of the Dalai Lama, Mahatma Ghandi, and Ghandi’s “Seven Deadly Sins” are also permissible under the policy. Dep. of Chiment at 205:11 to 208:7, Ex. 3, PUMF. Defendants did not claim that Johnson’s banners caused disruption or disorder in the school, or that they interfered with the curriculum. Dep. of Chiment at 49:23 to 51:14 & 276:12–25, Ex. 3, PUMF; Dep. of Kastner at 85:2 to 86:11, Ex. 4, PUMF.
Johnson wants to display the banners in his classroom; however, Defendants have prohibited him from doing so. Had Johnson not complied with Defendants’ order to remove the banners, Johnson would have suffered adverse employment consequences. Johnson continues to teach his assigned mathematics curriculum.
III. ANALYSIS
“The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection.” Tinker v. Des

Moines Indep. Cmty. School Dist., 393 U.S. 503, 512, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
Johnson asserts six claims for relief seeking declaratory and injunctive relief as well as nominal damages. Three of the claims rest on federal constitutional rights; three rest on similar state constitutional rights.
A. THE FREE SPEECH CLAIMS Johnson moves for summary judgment on his First Claim for Relief, that the Defendants violated his First Amendment free speech rights protected by the United States Constitution. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. Similarly, Johnson’s Fourth Claim for Relief is that Defendants violated his free speech rights protected by the California Constitution. Article 1, Section 2(a) of the California Constitution reads: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Cal. Const. art. 1, § 2.
*6 Before discussing these contentions it is worth noting that Johnson’s two banners clearly constitute speech. Hill v. Colorado, 530 F.3d 703, 715 (2000) (sign displays are protected by the First Amendment). Moreover, there is no dispute that Johnson’s speech has been squelched by the Defendants in that Johnson was ordered to remove the banners and that Johnson has complied with that directive. Defendants agree that public school teachers have First Amendment rights and that the banners constitute speech for purposes of the First Amendment. On the other hand, Defendants do not agree about when or where a high school teacher may exercise his or her First Amendment rights.
1. The Constitution Permits Latitude in Recognizing Religion That God places prominently in our Nation’s history does not create an Establishment Clause violation requiring curettage and disinfectant for Johnson’s public high school classroom walls. It is a matter of historical fact that our institutions and government actors have in past and present times given place to a supreme God. “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952). As the Supreme Court has acknowledged, “[t]here is an unbroken history of official acknowledgment by all three branches of government of
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Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

the role of religion in American life from at least 1789.” Van Orden v. Perry, 545 U.S. 677, 686, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (quoting Lynch v. Donnelly, 465 U.S. 668, 674, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).
The incidental government advancement of religion is permissible. Government speech “[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Van Orden, 545 U.S. 690. “Our precedents plainly contemplate that on occasion some advancement of religion will result from government action.” Lynch, 465 U.S. at 683 (American history is replete with official invocation of Divine guidance in pronouncements of Founding Fathers and government leaders). “It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths. Eradicating such references would sever ties to a history that sustains this Nation even today.” Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 35–36, 124 S.Ct. 2301, 159 L.Ed.2d 98 (O’Connor, J., concurring). The Constitution “permits government some latitude in recognizing and accommodating the central role religion plays in our society.... Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious.” County of Allegheny v. ACLU, 492 U.S. 573, 657, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring and dissenting).
In the case at bar, according to the undisputed evidence presented, the Poway Unified School District ran afoul of the First Amendment. One justification was that the district feared violating the Establishment Clause. The fear was not justified. There is no realistic danger that an observer would think that the Poway Unified School District was endorsing a particular religion or a particular church or creed by permitting Johnson’s personal patriotic banners to remain on his classroom wall. Any perceived endorsement of a single religion is dispelled by the fact that other teachers are also permitted to display other religious messages and anti-religious messages on classroom walls.
*7 Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), is applicable here: “[w]e have no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an Establishment Clause violation are unfounded ... there would have been no realistic danger that the community would think that the [school] District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental.”

2. Public School Teacher Speech Public school teachers are unique speakers.2 Teachers are hired for their expertise and ability to speak and convey knowledge to their students. Yet, not all of their time during the school day involves delivering curriculum. And sometimes, while delivering curriculum, they express opinions that are personal and not as speech transmitted from the government. In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court leaves open the question whether a government employee-speech paradigm applies to teaching, noting, “[w]e need not ... decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” 547 U.S. at 425. It may be that the selection of school curriculum is government speech. Downs v. Los Angeles Unified School Dist., 228 F.3d 1003, 1016 (9th Cir.2000), cert. denied, 532 U.S. 994, 121 S.Ct. 1653, 149 L.Ed.2d 636 (2001). But to assert that because Johnson was a teacher, he had no First Amendment protections in his classroom for his own speech would ignore a half-century of other Supreme Court precedent.

2

“To regard teachers—in our entire educational system,

from the primary grades to the university—as the

priests of our democracy is therefore not to indulge in

hyperbole. It is the special task of teachers to foster

those habits of open-mindedness and critical inquiry

which alone make for responsible citizens, who, in turn,

make possible an enlightened and effective public

opinion. Teachers must fulfill their function by precept

and practice, by the very atmosphere which they

generate; they must be exemplars of open-mindedness

and free inquiry. They cannot carry out their noble task

if the conditions for the practice of a responsible and

critical mind are denied to them. They must have the

freedom of responsible inquiry, by thought and action,

into the meaning of social and economic ideas, into the

checkered history of social and economic dogma. They

must be free to sift evanescent doctrine, qualified by

time and circumstance, from that restless, enduring

process of extending the bounds of understanding and

wisdom, to assure which the freedoms of thought, of

speech, of inquiry, of worship are guaranteed by the

Constitution of the United States against infraction by

national or State government.”

Wieman v. Updegraff, 344 U.S. 183, 196–97, 73

S.Ct. 215, 97 L.Ed. 216 (1952) (Frankfurter, J.,

concurring).

a. Teachers Maintain Free Speech Rights at School In 1969, the Supreme Court observed: “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at
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Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.” Tinker 393 U.S. at 506 (emphasis added). In the forty years since Tinker, the Supreme Court has neither diminished the force of Tinker’s observation, nor in any other way cabined the First Amendment speech of public school teachers. In fact, the Court recently reaffirmed Tinker ‘s pronouncement. See Morse v. Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (“In Tinker, this Court made clear that ‘First Amendment rights applied in light of the special characteristics of the school environment’ are available to teachers and students.”) (emphasis added).
b. Student Speech Has Required Some Restrictions The Court has permitted limits on student speech. For example, it is permissible to restrict student speech that “materially and substantially interfere[s]” with the requirements of appropriate discipline. Tinker, 393 U.S. at 509. Student speech has been proscribed where it consists of an “elaborate, graphic, and explicit sexual metaphor.” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 678, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). It may be banned where it “incite[s] to imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Student speech that promotes illegal drug use may be silenced. Morse, 551 U.S. at 410. And student speech in an official school newspaper may be regulated, so long as it is regulated on viewpoint neutral terms. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988).

four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.” Tinker, 393 U.S. at 513.
The decisions upon which Defendants rely do not undercut Tinker ‘s robust observation that teachers do not forfeit their constitutional free speech rights while at school. Since Johnson retains First Amendment speech rights as a public school teacher, a First Amendment forum analysis is the next step.
3. First Amendment Forum Analysis To determine the extent that free speech rights may be exercised on government property at Westview High School, this Court engages in a First Amendment forum analysis. Arizona Life Coalition, Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 56, 172 L.Ed.2d 24 (2008) (“The first step in assessing a First Amendment claim relating to private speech on government property is to identify the nature of the forum.”). “The Court has adopted a forum analysis as a means of determining when the Government’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. ., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Hills v. Scottsdale Unified School Dist. No. 48, 329 F.3d 1044, 1048 (9th Cir.2003), cert. denied, 540 U.S. 1149, 124 S.Ct. 1146, 157 L.Ed.2d 1042 (2004) (To analyze First Amendment free speech claim, courts first consider what type of forum the school District has created).

c. Teachers Enjoy Greater Freedom of Speech *8 However, the speech silenced by Defendants in this case is speech by Johnson, a teacher. In the school setting there is a qualitative lop-sided difference between the two classes of speakers (students vs. teachers). Bethel School Dist., 478 U.S. at 682 (“[T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”); Morse, 551 U.S. at 410–11 (Thomas, J., concurring) (describing history of American education where teachers had wide discretion to make rules and ensure student silence). Four decades ago, the Supreme Court brushed aside the thought that teachers lose free speech rights. “It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees.” Epperson, 393 U.S. at 107 (citation omitted) (holding public school teacher maintained First Amendment right to communicate in the classroom his disagreement with state’s required curriculum on evolution). “[W]e do not confine the permissible exercise of First Amendment rights to a telephone booth or the

Contrary to Defendants’ assertions, the Pickering balancing test for government employee speech is the wrong test to apply in the present context.3 Applying a balancing test departs from the First Amendment forum analysis described in Hazelwood and typically applied by the Ninth Circuit in school speech cases. See e.g., Truth v. Kent School Dist., 542 F.3d 634, 648–49 (9th Cir.2008) (applying forum analysis), cert. denied, ––– U.S. ––––, 129 S.Ct. 2889, ––– L.Ed.2d –––– (2009); Flint v. Dennison, 488 F.3d 816, 830 (9th Cir.2007), cert. denied, ––– U.S. ––––, 128 S.Ct. 882, 169 L.Ed.2d 726 (2007) (applying forum analysis); Hills, 329 F.3d at 1048–50 (applying forum analysis); but see Downs, 228 F.3d at 1009–11 (declining to apply forum analysis because curricular speech at issue belonged to the school district).

3

See also Pleasant Grove City, Utah v. Summum,

–––U.S. ––––, ––––, 129 S.Ct. 1125, 1139, 172

L.Ed.2d 853 (2009) (Stevens, J., concurring) (“To date,

our decisions relying on the recently minted

government speech doctrine to uphold government

action have been few and, in my view, of doubtful

merit.”).

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Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

a. Three Forum Categories *9 “Forum analysis has traditionally divided government property into three categories: public fora, designated public fora, and nonpublic fora.” Flint, 488 F.3d at 830 (citation omitted). “Once the forum is identified, we determine whether restrictions on speech are justified by the requisite standard.” Id. “On one end of the fora spectrum lies the traditional public forum, ‘places which by long tradition ... have been devoted to assembly and debate.’ Next on the spectrum is the so-called designated public forum, which exists ‘when the government intentionally dedicates its property to expressive conduct.’ ” Id. (citations omitted). In a public or designated public forum, restrictions on speech are subject to strict scrutiny. Id.
“At the opposite end of the fora spectrum is the non-public forum. The non-public forum is ‘any public property that is not by tradition or designation a forum for public communication.’ ” Id . (citations omitted). In a non-public forum government restrictions are subjected to less-exacting judicial scrutiny. There, a government may restrict free speech if it acts reasonably and does not suppress expression merely because public officials oppose one speaker’s view. Id. (citations omitted).
b. The Classroom Walls of Poway’s Westview High School Constitute a Limited Public Forum for Faculty Speech To determine the type of forum applicable to Johnson’s classroom wall, the nature of the government property involved must be examined. Judging from the undisputed facts presented, Johnson’s classroom walls constitute what is best described as a limited public forum (a sub-category of a designated public forum) because the Poway Unified School District has intentionally opened its high schools to expressive conduct by its faculty on non-curricular subjects. Flint, 488 F.3d at 831. “[A] government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects.” Pleasant Grove, 129 S.Ct. at 1132. This conclusion is based upon undisputed facts that Defendants have a long-standing policy of permitting its teachers to express ideas on their classroom walls. Defendants’ policy grants its teachers discretion and control over the messages displayed on their classroom walls. Defendants’ policy permits teachers to display on their classroom walls messages and other items that reflect the teacher’s personality, opinions, and values, as well as political and social concerns. Defendants’ policy permits teacher speech so long as the wall display does

not materially disrupt school work or cause substantial disorder or interference in the classroom. As a result of the Defendants’ long-standing policy, a teacher’s classroom walls serve as a limited public forum for a teacher to convey non-curriculum messages.
c. Speech Restrictions Must be Viewpoint Neutral When a forum for speech is created, such as at Poway’s Westview High School, government regulation of speech must be viewpoint neutral. “[O]nce a government has opened a limited forum, it must respect the lawful boundaries it has itself set.” Flint, 488 F.3d at 831 (quoting Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1993)). A school district “may not exclude speech where its distinction is not reasonable in light of the purposes served by the forum, nor may the government discriminate against speech on the basis of its viewpoint.” Id. (citations omitted); see also Pleasant Grove, 129 S.Ct. at 1132 (“In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint-neutral”). Viewpoint neutrality requires that a school administration not favor one speaker’s message over another. When “government has excluded perspectives on a subject matter otherwise permitted by the forum,” the government is discriminating on the basis of viewpoint. Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 912 (9th Cir.2007), cert. denied, 552 U.S. 822, 128 S.Ct. 143, 169 L.Ed.2d 30 (2007).
*10 Here, the Poway Unified School District opened a limited public forum in which its teachers were permitted to exercise free speech. According to Deputy Superintendent, John P. Collins, teachers are allowed to express themselves through the posting of banners and posters and flags and other items on the classroom walls. Dep. of Collins at 38–40, Ex. 2, PUMF. By designing, buying, hanging, and maintaining the two banners, Johnson was engaged in First Amendment expression—speech otherwise permitted by the district policy. When Defendant Westview High School Principal Kastner ordered Johnson to remove the banners, she and the school district were silencing speech. When Principal Kastner ordered Johnson to remove the banners “because they conveyed a Judeo–Christian viewpoint,” Kastner was impermissibly squelching speech based upon the viewpoint of the speaker. The undisputed facts show that Kastner’s decision was not made pursuant to a content-neutral reason nor within the boundaries the school district had set for itself in opening the forum. If certain speech “fall[s] within an acceptable subject matter otherwise included in the forum, the State may not legitimately exclude it from the forum based on the viewpoint of the speaker.” Cogswell v. City of Seattle, 347 F.3d 809, 815 (9th Cir.2003), cert. denied, 541 U.S. 1043, 124 S.Ct. 2175, 158 L.Ed.2d 732 (2004). The Supreme
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Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

Court has been clear that viewpoint discrimination occurs when the government “denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Cornelius, 473 U.S. at 806. Judge Fletcher distills Cornelius as recognizing that, “where the government is plainly motivated by the nature of the message rather than the limitations of the forum or a specific risk within that forum, it is regulating a viewpoint.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 971 (9th Cir.2002).
Teachers other than Johnson have been permitted to use the classroom wall forum to speak on a wide variety of secular and religious topics. Topics permitted on classroom walls have included religious speech from a Buddhist viewpoint in the form of Tibetan prayer flags with writings in Sanskrit and an image of Buddha. Other permitted religious speech includes the Hindu viewpoint in the form of posters of Gandhi and the Hindu “seven social sins.” Anti-religious speech is also permitted on classroom walls in the form of a poster with lyrics of John Lennon’s song “Imagine” (“Imagine there’s no Heaven, it’s easy if you try, no hell below us, above us only sky ... nothing to kill or die for, and no religion, too....”). Pro-war and anti-war topics have been permitted on classroom walls. Nationalistic and global messages find room on walls. Other patriotic posters remain in place. Some of the speech in the form of posters are small. Many of the posters are large. The display of Tibetan prayer flags spans the 35–40 foot width of a classroom. Faculty speech is not confined to a particular physical space such as on a bulletin board or file cabinet.
d. Johnson’s Speech Was Squelched Because of its Viewpoint *11 Only Johnson’s speech has been singled out for suppression because of its message. “In cases where restriction to the forum is based solely on the group’s religious viewpoint, the restriction is invalid.” Truth, 542 F.3d at 650. School Principal Kastner told Johnson the banners had to be removed because they conveyed a “Judeo–Christian viewpoint.” School District Assistant Superintendent Chiment followed up Kastner’s order with a letter explaining that the banners had to be removed from the classroom because they conveyed “a particular sectarian viewpoint.” Deputy Superintendent Collins testified that Chiment’s decision and letter to Johnson were discussed with the school district Superintendent at a school district cabinet meeting and that all school officials in attendance agreed with the decision. Dep. of Collins at 58:3–59:3, Ex. 2, PUMF.
The banners communicate the existence of God in our nation’s history and culture. The banners communicate fundamental national historical messages. They celebrate important shared American historical experiences. One

banner contains an excerpt from the Declaration of Independence, this Nation’s most cherished symbol of liberty, observing: “All men are created equal, they are endowed by their Creator” with unalienable rights. Another banner repeats the official motto adopted by the Congress of the United States: “In God We Trust.” The phrase, “God Bless America,” is often spoken by Presidents of the United States, as was the case recently on January 27, 2010 where President Barack H. Obama concluded his State of the Nation address with “God bless you, and God Bless America.” “God Bless America” is also a well known popular American song title of the twentieth century, written by Irving Berlin and performed most famously by Kate Smith. It is routinely sung by sports fans during the seventh inning stretch at New York Yankees baseball games since the attacks of September 11, 2001. See also, Seidman v. Paradise Valley Unified School Dist., 327 F.Supp.2d 1098, 1112 (D.Ariz.2004) (“The phrase ‘God Bless America,’ has historic and patriotic significance.”). “God shed His grace on thee” comes from the popular patriotic song and century-old poem by Katharine Lee Bates: “America, the Beautiful,” a piece most recently sung at the Super Bowl football game on February 7, 2010. The phrase, “One Nation Under God,” is part of the Pledge of Allegiance. The Pledge is recited every morning in the Poway Unified School District. Dep. of Collins at 28:8–16, Ex. 2, PUMF.

Each phrase, by itself, is an acceptable message for Johnson’s classroom, according to Principal Kastner. In fact, each individual phrase was not only permitted as a message, each individual phrase was an encouraged message, in the Principal’s view. Kastner testified in her deposition that: “[t]he issue was never these phrases in isolation, and these phrases were all not only permitted but encouraged.... It’s taking them out of context that was the issue.” Dep. of Kastner at page 91:7–11, Ex. N, Defendants’ Supplemental Exhibits in Support of Opposition to Plaintiff’s Motion for Summary Judgment.

*12 Whether correctly understood as simply historic and patriotic expressions4 or non-proselytizing religious sayings, Defendants acted based upon their perception that the message conveyed a Judeo–Christian viewpoint. By squelching Johnson’s patriotic and religious viewpoint while permitting speech promoting Buddhist, Hindu, and anti-religious viewpoints, Defendants clearly abridged Johnson’s constitutional free speech rights. “Discrimination against speech because of its message is presumed to be unconstitutional.” Rosenberger, 515 U.S. at 828; R.A. V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (Even when the government may forbid a category of speech outright, it may not discriminate on account of the speaker’s viewpoint.).

4

While invalidating a state-prescribed official prayer for

8

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

students, the Supreme Court saw no First Amendment problem with requiring public school children to recite the Declaration of Independence with its references to God or sing anthems which include professions of faith in a Supreme Being-describing recitations as “patriotic or ceremonial occasions.” See Engel v. Vitale, 370 U.S. 421, 435 n. 21, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (“There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Diety or by singing officially espoused anthems which include the composer’s professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions....”).
In this sense, Johnson’s case is similar to the decisions of Rosenberger, Lamb’s Chapel, and Good News Club v. Milford Central School, 533 U.S. 98, 107–08, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). Each case involved viewpoint discrimination in a limited public forum. In Rosenberger, the Supreme Court found that by excluding funding to a student religious group solely because the religious group promoted a particular religious perspective, the university was discriminating in a limited public forum on the basis of that group’s viewpoint. Rosenberger, 515 U.S. at 829–37. In Lamb’s Chapel, a group desired to speak at a school facility on the issue of child rearing from a religious perspective. The school district denied access to the school rooms for religious purposes. The Supreme Court unanimously held that the school district discriminated on the basis of viewpoint, and that the school district should have permitted speech from a religious perspective on a subject permitted by the forum. Lamb’s Chapel, 508 U.S. at 393. Similarly, in Good News Club, the Supreme Court found viewpoint discrimination where a public school excluded a Christian club from meeting on the school’s grounds while at the same time permitting non-religious groups to meet. Good News Club, 533 U.S. at 107–09. The Christian club simply sought to address a subject otherwise permitted in the limited public forum Id. at 109. In Faith Center, the Ninth Circuit reviewed these cases and drew a line between speech from a religious perspective (which was constitutionally protected in each of the limited public forums) and pure religious worship (which exceeded the boundaries of the forums). Faith Center, 480 F.3d at 913.
Whether described as speech from a religious perspective or speech about American history and culture, through display of his classroom banners, Johnson was exercising his free speech rights on subjects that were otherwise permitted in the limited public forum created by Defendants. “Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference

with schoolwork or discipline, is not constitutionally permissible.” Tinker, 393 U.S. at 511. Consequently, Johnson has proved a clear ongoing violation of his First Amendment free speech and free exercise rights. See, e.g., Truth, 542 F.3d at 650 (observing that in a public high school limited public forum “where restriction to the forum is based solely on ... religious viewpoint, the restriction is invalid.”).
4. Fear of Future Establishment Clause Entanglement *13 In the case at bar, according to the undisputed evidence presented, the Poway Unified School District ran afoul of the First Amendment. One justification was that the district feared violating the Establishment Clause. The fear was not justified. There is no realistic danger that an observer would think the Poway Unified School District was endorsing a particular religion or a particular church or creed by permitting Johnson’s personal patriotic banners to remain on his classroom wall. Any perceived endorsement of a single religion is dispelled by the fact that other teachers are also permitted to display other religious messages and anti-religious messages on classroom walls. “Widmar v. Vincent, Board of Education v. Mergens, and Lamb’s Chapel, all reject arguments that, in order to avoid the appearance of sponsorship, a school may restrict religious speech.” Hedges v. Wauconda Cmty. Utd. School Dist. No. 118, 9 F.3d 1295, 1298 (7th Cir.1993) (citations omitted).
Defendants then posit that the cumulative effect of the references to God on the banners might be seen as the school advancing one religion. Defendants argument is both speculative and imprecise. The messages on Johnson’s banners do not describe or advance any particular religion. The banners do not quote from the Christian Bible, or books of other particular religions such as the Jewish Torah, the Islamic Koran, the Latter Day Saints Book of Mormon, the Buddhist Diamond Sutra, or the Hindu Bhagavad–Gita. To argue that the banners advance an encompassing undifferentiated religion with God as the figurehead makes sense only in a citizenry where there are only two beliefs: one acknowledging God; one denying God. Such is not the case. See Arizona Life Coalition, 515 F.3d at 971 (It is an “insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech. Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas.”) (quoting Rosenberger, 515 U.S. at 831).
Through the Establishment Clause lens, the banners do not evangelistically advocate for the existence of God. Instead, they highlight historic and patriotic themes that in themselves have acknowledged God’s existence. Elk Grove, 542 U.S. at 34 (O’Connor, J., concurring) (“It is
9

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths. Eradicating such references would sever ties to a history that sustains this Nation even today.”); Aronow v. U.S., 432 F.2d 242, 243 (9th Cir.1970) (“It is quite obvious that the national motto and the slogan on coinage and currency ‘In God We Trust’ has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.”). One teacher’s banners that direct attention to the multiple places God may be found in our country’s history, does not evidence an Establishment Clause violation. Consequently, the Defendants’ explanation and justification for removing Plaintiff’s speech for fear of violating the Establishment Clause is unconvincing—especially among the cacophony of other First Amendment speech which remains in the high school classrooms.5 Cf. Hills, 329 F.3d at 1053 (school district failed to demonstrate that the Establishment Clause would be violated). Ultimately, “the school district here can dispel any ‘mistaken inference of endorsement’ by making it clear to students that ... private speech is not the speech of the school.” Prince v. Jacoby, 303 F.3d 1074, 1094 (9th Cir.2002) (quoting Bd. of Educ. v. Mergens, 496 U.S. 226, 251, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion) (school’s fear of endorsing private religious speech is largely self-imposed because school has control over impressions its gives to secondary school students).

5

Our diversity is one of our strengths. It is laudable that

the Defendants have created a forum for faculty speech.

Our high school students are well served by

encouraging them to enter the marketplace of ideas and

become wise consumers. A democratic society must “of

course, include tolerance of divergent political and

religious views.” Bethel School Dist., 478 U.S. at 681.

One way a school district can be confident that it is not

endorsing religion is to permit speech and then educate

students about the dangers of restricting speech. The

Seventh Circuit noted:

What means do schools have at their disposal to

fulfil this obligation? The principal method is for

administrators to avoid endorsing religious views

by their own words or deeds; a prudent

administrator also might disclaim endorsement of

private views expressed in the schools. This

combination discharges the school’s obligation to

be neutral toward religious sentiment. Just as a

school may remain politically neutral by

reminding pupils and parents that it does not adopt

the views of students who wear political buttons in

the halls or public officials who tout their party’s

achievements in the auditorium, so a school may

remain religiously neutral by reminding pupils and

parents that it does not adopt the views of students

who pass out religious literature before school. It

must refrain from promoting the distribution of

such literature but can remain neutral by treating religious speech the same way it treats political speech. Wauconda Cmty. Utd. School Dist., 9 F.3d at 1299. The Ninth Circuit agrees. “We agree with the Seventh Circuit that the desirable approach is not for schools to throw up their hands because of the possible misconception about endorsement of religion, but that instead it is ‘far better to teach students about the first amendment, about the difference between private and public action, about why we tolerate divergent views. The school’s proper response is to educate the audience rather than squelch the speaker.’ ” Hills, 329 F.3d at 1055 (quoting Wauconda Cmty. Utd. School Dist., 9 F.3d at 1299).
5. Pickering or Tinker—Government Speech or Individual Speech? *14 Defendants adopt the alternate argument that Johnson gave up his free speech rights by virtue of his employment as a public high school teacher. The argument is at odds with Epperson, Tinker and Morse. Nevertheless, Defendants argue that Johnson’s free speech rights may be abridged because he is a government employee, and because a teacher is also a government employee, a government speech test from Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), should be used rather than Tinker’s First Amendment forum analysis. It is true that the Free Speech Clause does not apply to the government’s own speech. Pleasant Grove, 129 S.Ct. at 1131. Where a government employee is speaking while doing his or her government job, it is sometimes characterized as the government’s own speech. Garcetti, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689. But not all speech by a government employee is government speech. A government employee may be engaged in his or her own private speech while on government property. Consequently, while “government speech is not restricted by the Free Speech Clause, the government does not have a free hand to regulate private speech on government property.” Pleasant Grove, 129 S.Ct. at 1132. Thus, “[t]here may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech.” Id.
Defendants argue that the balancing test from Pickering should be applied, and if applied, would leave Johnson’s speech unprotected by the First Amendment. Pickering addressed a public school teacher’s speech that criticized his government employer. In that situation, the Court sought to balance the employee’s interests as a citizen against the government interest as employer in promoting efficiency of providing governmental services. It is significant that, in the end, Pickering reinforces the
10

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

understanding that a teacher’s speech enjoys constitutional protection. Pickering, 391 U.S. at 568 (“To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court.”). All of the decisions of the Supreme Court touching on the subject acknowledge a teacher’s right to engage in protected speech. No Supreme court decision holds to the contrary. Therefore, Defendants’ position that the Pickering balancing test applies and justifies silencing Johnson’s speech, finds no traction in Supreme Court case law.

dealing with these directions.”) The second factor asks about the performance of daily duties in the classroom. Here the evidence clearly demonstrates that the banners had no effect on the performance of Johnson’s daily duties in the classroom. In fact, Johnson has been held in high regard for his performance of daily duties teaching math while his banners were displayed. The final factor looks at whether the speech in question interfered with the regular operation of the school generally. Again, there was no evidence offered to suggest the banners negatively affected the regular operation of the schools where Johnson taught. To the contrary, the undisputed evidence demonstrated that the school administration had no issue with the display of Johnson’s banners for two decades. Thus, even applying the Pickering test, as understood by Nicholson, the Court would find Johnson’s banner display to be constitutionally protected.

a. Even Pickering Balancing Tips in Favor of Plaintif’s Banners
i. The Ninth Circuit Nicholson Case Though Defendants do not cite it, the Ninth Circuit did look to Pickering in a teacher’s wrongful discharge suit. See Nicholson v. Bd. of Educ. Torrance Unified School Dist., 682 F.2d 858 (9th Cir.1982). In that case, Nicholson was hired as a probationary high school journalism teacher. The probationary period was filled with disputes with the administration over articles published in the school newspaper, failures to comply with record-keeping requirements, and instances where he permitted students to violate school rules. The school did not rehire Nicholson and he sued. Id. at 861–62. Nicholson claimed that he was not rehired because of his exercise of free speech rights. In that context, the court of appeals looked to Pickering, writing, “[t]he question whether a school teacher’s speech is constitutionally protected expression requires balancing. Id. at 865 (quoting Pickering, 391 U.S. at 568). The court of appeals focused on three factors drawn from Pickering. One factor was whether the speech affected the teacher’s working relationships with the school board and his immediate superiors. Id. A second factor was whether the teacher’s expression “impeded the teacher’s proper performance of his daily duties in the classroom.” Id. The third factor looked at whether the teacher’s expression “interfered with the regular operation of the school generally.” Id.
*15 Johnson’s banners easily pass this three-factor test. Concerning the first factor, there is no evidence that working relationships with the school board or the principal deteriorated. In fact, testimony indicated that his superiors were favorably impressed with the professional manner in which Johnson responded to administration concerns over the banners. See Chiment Letter dated Jan. 23, 2007, Ex. D, Defs’ Ex. List (“Let me first say that I am pleased with the professional manner in which you are

ii. The Ninth Circuit Berry Case Defendants also assert that Berry v. Dept. of Social Servs., 447 F.3d 642 (9th Cir.2006), provides the better roadmap. Berry is not a teacher case. Berry dealt with a worker who would speak with unemployed citizens making the transition out of welfare. At issue was an agency restriction on discussing religion with citizens served by the agency and displaying religious items in worker cubicles. Id. at 646. Mr. Berry desired to speak with citizens at the agency, to share his faith and pray. Id. The court applied a modified Pickering balancing test. Berry balanced the employee’s right to engage in First Amendment religious speech against the government employer’s need to avoid a violation of the Establishment Clause. Id. at 650–51. In that speech context, the Ninth Circuit found that the balance tipped in the government agency’s favor. The potential for an Establishment Clause issue was greater there, than here, as the employee in Berry, unlike Johnson, said he would share his faith and pray with agency customers. Id. In contrast, the classroom banners do not contain Johnson’s own prayers or a statement of his own religious faith. Nor does the record indicate that Johnson prays with students during class time.
Berry also addressed the government-employer’s right to restrict the employee’s right to decorate his cubicle with religious items. Mr. Berry wanted to display a Bible and a “Happy Birthday Jesus” sign at his cubicle. Relying on its earlier decision in Tucker v. California Dept. of Educ., 97 F.3d 1204 (9th Cir.1996), Berry again found the balance tipped in favor of the agency and its ban on religious decorations. 447 F.3d at 651–52.
iii. The Ninth Circuit Tucker Case *16 In contrast to Berry, in Tucker the Ninth Circuit used
11

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

a forum analysis, rather than a balancing test, in analyzing a First Amendment challenge to a complete ban on the display of religious materials. The issue involved the display of religious messages on the walls of the offices and employee cubicles at the California state department of education. Tucker, 97 F.3d at 1214–15. Tucker struck down the government ban on displays. As Judge Reinhardt said, “[w]e conclude that it is not reasonable to allow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and materials.” Id. at 1215. The prohibition was an impermissible restriction on speech because “its sole target” was religious speech. Id. Even otherwise reasonable restrictions on speech in a non-public forum must be viewpoint neutral. Id.
In language equally applicable to the classrooms of Westview High School, Tucker observed, “[r]easonable persons are not likely to consider all of the information posted on bulletin boards or walls in government buildings to be government-sponsored or endorsed. Certainly a total ban on posting religious information of any kind is an unreasonable means of obviating such a concern.” Id.
In the case at hand, the ban on Johnson’s banners is an unreasonable restriction on constitutionally protected teacher speech because, as was the case in Tucker, the school district ban is not viewpoint neutral. Principal Kastner did not ban all teacher classroom wall displays. Kastner did not ban only religious displays—a restriction that by itself would be suspect under Tucker. Instead, Kastner banned Johnson’s banner display because of its particular religious perspective. At the same time, Kastner permitted on other classroom walls: (1) the 35–40 foot long Tibetan prayer flag display and its representation of Buddha; (2) the Gandhi seven social sins poster; and (3) the Lennon “Imagine” anti-religious song poster. These types of viewpoint and content-based restrictions on First Amendment speech do not pass even minimal Constitutional screening.
iv. The Ninth Circuit Peloza Case Defendants argue that a public school district may prevent a teacher from engaging in evangelical speech on a school campus if necessary to avoid an Establishment Clause violation, relying on Peloza v. Capistrano Unified School Dist., 37 F.3d 517 (9th Cir.1994). The argument does not apply to the facts here. Unlike in Peloza, there is no evidence Johnson was evangelizing during instructional time. Peloza recognized a permissible limit on free speech where a school district directed a teacher “to refrain from any attempt to convert students to Christianity or initiating conversations about [his] religious beliefs during instructional time.” Peloza, 37 F.3d at 522. The Peloza context is significantly different than the silent

display of banners context. The difference is further amplified by the milieu of teacher expression on classroom walls found in Johnson’s school. The Plaintiff’s banners are not patently evangelical. They do not contain scripture from any holy text. There is no proselytizing language. Although the word “God” appears several times, it is in its historically employed context. In view of the much different context, Peloza sheds little light for the First Amendment issues at play here.
b. Johnson’s Speech is Not Curricular *17 Defendants also argue that Johnson’s classroom wall banners are curricular speech. From this Defendants argue that if the banners are curricular speech, then the Poway Unified School District has absolute control over the curriculum and may dictate the content of what its teachers may or may not speak. Any support for this argument would come from the Ninth Circuit decision in Downs. But Downs also arises from a much different context. In that case, a school district decided to set up bulletin boards in its schools upon which to post materials with the aim of “Educating for Diversity.” 228 F.3d at 1012. The bulletin boards were supplied by the school district and erected in the school hallways. The materials to be posted on the bulletin boards were supplied by the school district, and because the school district had final authority over the content of the boards, all speech that occurred on the bulletin boards belonged to the school board and the school district. Downs involved only government speech in a nonpublic forum. Id. at 1013. “We do not face an example of the government opening up a forum for either unlimited or limited public discussion. Instead, we face an example of the government opening up its own mouth.” Id. at 1012. In that particular context, Downs held that a teacher’s free speech rights did not extend to postings on the diversity bulletin boards. Id. at 1014.
That is a different case than the one presented here. Unlike the teacher in Downs, Johnson supplied the banners—not the school district. Johnson selected the content of the banners—not the school district. Johnson hung the banners inside his assigned classroom. The Poway Unified School District created a limited public forum for teacher expression. Johnson was expressing his ideas in that forum in a manner that remarkably brought no complaints from students or parents or other teachers and school administrators for two decades. This was not a case of the school district electing to speak for itself on a topic as part of its selected curriculum. Downs is inapposite.
To sum up, it is axiomatic that the school district may not regulate speech based on the message it conveys. Rosenberger, 515 U.S. at 828 (citations omitted). From this principle follows the precept that for private speech
12

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

or expression, government regulation may not favor one speaker over another. Id. Where there has been discrimination against private speech because of its message, it is presumed to be unconstitutional. Id. In cases where a school targets the particular views taken by a speaker on a subject, the First Amendment violation is all the more blatant. Id. at 829. “Viewpoint discrimination is thus an egregious form of content discrimination.” Id. These principles forbid a school district from exercising viewpoint discrimination, even when the limited public forum is one of its own creation. Id. Here, the Poway Unified School District engaged in viewpoint discrimination when it required Johnson to remove his banners, and thus violated his First Amendment free speech rights.
*18 In conclusion, there being no genuine issues of material fact, Plaintiff is entitled to summary judgment on his First Claim for Relief under the federal First Amendment to the United States Constitution.
Johnson’s Fourth Claim for Relief under the California Constitution is likewise determined by First Amendment jurisprudence. Therefore, Plaintiff’s motion for summary judgment on the Fourth Claim for Relief is also granted. San Leandro Teachers Ass’n v. Governing Bd. of the San Leandro Unified School Dist., 46 Cal.4th 822, 95 Cal.Rptr.3d 164, 209 P.3d 73 (Cal.2009) (applying both federal First Amendment analysis to interpret state’s liberty of speech clause in public school speech forum, and alternatively observing that protections granted by California’s Constitution are broader).
B. THE ESTABLISHMENT CLAUSE CLAIMS Johnson’s Second and Sixth Claims for relief assert Defendants violated the Establishment Clause of the First Amendment and the California Constitution. Johnson’s claim is simple: by squelching his classroom banners because they conveyed a Judeo–Christian viewpoint, while at the same time permitting the classroom displays of other teachers about Buddhist and Hindu religions, Defendants are using the weight of government to prefer other religions while expressing hostility toward his own religion. This, of course, the Establishment Clause forbids.
“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Likewise, silencing religious speech while permitting speech that is anti-religious (i.e., the lyrics to Lennon’s “Imagine”) also violates the Establishment Clause. School Dist. of Abington Twp., v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (“We agree of course that the State may not establish a ‘religion of secularism’ in

the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’ ”).
Defendants suggest that they were maintaining religious neutrality. The undisputed facts paint a different picture. To recap, other teachers are permitted to display Buddhist messages and an image of Buddha, large Tibetan prayer flags displays, Hindu messages, and anti-religious messages. Such speech is obviously religious. At the same time, Johnson’s banners, with their Judeo–Christian viewpoint, are no longer permitted. The undisputed evidence demonstrates an absence of government neutrality: disfavor towards Johnson’s Judeo–Christian viewpoint and favor toward other religious viewpoints and viewpoints hostile towards religion.
The given reason was the sectarian viewpoint expressed by Johnson’s banners. At oral argument, counsel for defendants offered different explanations for ordering the banners to be taken down. It was argued that it was the large size of the banners that is the problem. Yet, there are other large displays on classroom walls. The Tibetan prayer flags reach 35–40 feet across another classroom. It was then argued that it is the repetitive inclusion of the word “God” in the phrases on the banners that might make an Islamic student uncomfortable. Principal Kastner said that she asked Johnson, “[i]f an Islamic student walks into your classroom and sees all of these phrases ... they may feel like, Wow, I’m not welcome, or, I’m not gonna fit in this classroom. And they may feel bad.” Dep. of Kastner at 44:4–11, Ex. F, Defs’ Ex. List.
*19 Of course, student comfort is not a Constitutional test. “After all, much political and religious speech might be perceived as offensive to some.” Morse, 551 U.S. at 409. “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509. More to the point, an imaginary Islamic student6 is not entitled to a heckler’s veto on a teacher’s passive, popular or unpopular expression about God’s place in the history of the United States. See Morse, 551 U.S. at 402–404 (a school’s desire to avoid controversy, which might result from unpopular viewpoints is not enough to justify banning, “silent, passive expression of opinion, unaccompanied by any disorder or disturbance.”).

6

There was no actual complaint from an Islamic student

or any other student.

Even if the Defendants were applying some sort of student-discomfort test, they would have to apply the test
13

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

equally. Yet, school district administrators did not ask, for example, whether a Muslim student might feel uncomfortable sitting in a classroom with the anti-religious lyrics from “Imagine”7 on a classroom wall poster. Did the principal ask whether a Jewish or Christian student might feel uncomfortable sitting under a string of Tibetan prayer flags inscribed with Sanskrit and an image of Buddha? The undisputed evidence supports a finding of unconstitutional selective protectionism: “protecting” students from Johnson’s “Judeo–Christian” viewpoint while tolerating, if not endorsing, other religious and anti-religious viewpoints.

7

See Pleasant Grove, 129 S.Ct. at 1135 & n. 2.

It was also argued that no district administrator noticed Johnson’s banners until 2006–07. Yet, the undisputed evidence is that Johnson’s banners were large and on display in his classrooms for two decades. The assertion is patently untenable.
Finally, defense counsel argued that the Tibetan prayer flags are just “decorative.” They are not a religious display because the Sanskrit was not translated, the image of Buddha was small, and Buddhism is not a religion but a philosophy of life. The argument is a transparent pretext. For example, the U.S. State Department estimates that in China alone there are more than 100 million Buddhists, making Buddhism one of the largest organized religions.8 The image of Buddha may be small, but it is a recognizable religious image, nonetheless. Finally, the fact that a student may not know how to translate from Sanskrit to English, does not change the inferential religious significance of the prayer flags.

8

U.S. Department of State, International Religion

Freedom Report 2006, China, available at

www.state.gov/g/drl/rls/irf/2006/71338.htm last viewed

on February 25, 2010.

The teacher with the Tibetan prayer flag display said

that she did not “have any idea” what the Sanskrit

writing meant, but admitted that she would not be

surprised to learn that the prayer flags contain sacred

text and prayers of Buddhists. Dep. of Brickley at

89:4 to 90:20, Ex. J, Defs’ Ex. List.

attempts to convey a message that religion or a particular religious belief is favored or preferred.”). Here, Johnson has successfully proven an Establishment Clause claim by demonstrating that Defendants are not neutral toward teachers’ religious displays. Defendants’ endorsement of Buddhist, Hindu, and anti-religious speech by some teachers while silencing the Judeo–Christian speech of Johnson, violates the Establishment Clause.
*20 Therefore, Plaintiff’s motion for summary judgment is granted on the Second Claim for Relief for violation of the federal Establishment Clause of the United States Constitution. Because Johnson’s Sixth Claim for Relief under the California Constitution is determined by federal First Amendment jurisprudence, Plaintiff’s motion for summary judgment on the Sixth Claim for Relief is also granted. Paulson v. Abdelnour, 145 Cal.App.4th 400, 420, 51 Cal.Rptr.3d 575 (2006) (“The construction given by California courts to the establishment clause of article I, section 4, is guided by decisions of the United States Supreme Court.”).
C. THE STATE “NO PREFERENCE” CLAUSE CLAIM Johnson’s Fifth Claim for Relief asserts a claim solely under the California Constitution’s No Preference Clause. The No Preference Clause reads: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed.” Cal. Const. art. I, § 4. “The California courts have interpreted the no preference clause to require that not only may a governmental body not prefer one religion over another, it also may not appear to be acting preferentially.” Tucker, 97 F.3d at 1214 (citations omitted). While, the California Supreme Court has not definitively construed the reach of the clause, (see Barnes–Wallace v. City of San Diego, 530 F.3d 776, 788 (9th Cir.2008), reh’g en banc denied, 551 F.3d 891 (2008)), since Johnson has adequately demonstrated through undisputed facts that Defendants acted in a way that either prefers, or appears to prefer, Buddhist, Hindu, and anti-religious viewpoints over Johnson’s Judeo–Christian viewpoint, he has successfully proven the claimed violation of California’s No Preference Clause. Thus, Plaintiff’s motion for summary judgment on the Fifth Claim for Relief is granted.

As the Ninth Circuit explained in another public school setting where the Establishment Clause was violated, “[t]he message of an open-forum policy is one of neutrality.” Ceniceros v. Bd. of Trustees of the San Diego Unified School Dist., 106 F.3d 878, 882 (9th Cir.1997). “[D]iscriminating against religious groups would demonstrate hostility, not neutrality, toward religion.” Id.; County of Allegheny, 492 U.S. at 593 (Establishment Clause inquiry is whether the government “conveys or

D. THE EQUAL PROTECTION CLAUSE CLAIM Johnson’s remaining claim for relief is the Third Claim asserting a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court teaches that “[w]hen government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the
14

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)

justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 461–62, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). In Police Department v. Mosley, 408 U.S. 92, 95–96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), the Court explains:
Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an “equality of status in the field of ideas,” and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.
*21 As to the Third Claim for Relief, there are no genuine issues of material fact. Plaintiff has proven his claim that Defendants violated his rights under the Equal Protection Clause. Defendants opened up a forum for teacher expression. Having maintained the forum for decades, Defendants violated Johnson’s rights when they acted to prohibit his speech and order his banners removed based on the content and viewpoint of what he was expressing—while at the same time permitting other teacher speech from a variety of other viewpoints to continue unfettered. Thus, on the Equal Protection claim, Plaintiff is entitled to summary judgment.

inside the schoolhouse gates. Morse, 551 U.S. at 396. It is also clearly established law that where free speech is permitted, the government may not discriminate based on the speaker’s viewpoint. Rosenberger, 515 U.S. at 828–29 (citations omitted); see also Citizens United v. Fed. Election Comm’n, No. 08–205, ––– U.S. ––––, 2010 WL 183856, *19 (Jan. 21, 2010) (“[T]he First Amendment stands against attempts to disfavor certain subjects or viewpoints.”). Finally, as Justice Souter wrote, it is clearly established that in matters of religion, “the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion.” McCreary County v. ACLU, 545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (citations omitted).
The school district and its administration apparently acted in conformity with these established principles for two decades. When Defendants suddenly changed course in 2007, a course they continue on today, they did so in violation of clearly established federal and state constitutional law and with fair warning that their conduct was unlawful. The individual Defendants are not entitled to qualified immunity from suit.
IV. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Because the undisputed material facts demonstrate that Plaintiff is entitled to judgment of each of his claims for relief, Defendants’ cross-motion for summary judgment is denied.

E. QUALIFIED IMMUNITY The individual Defendants argue that they are entitled to qualified immunity. A school official is entitled to qualified immunity where clearly established law does not show that the action taken violates federal Constitutional rights. Safford Unified School Dist. No. 1 v. Redding, ––– U.S. ––––, ––––, 129 S.Ct. 2633, 2643, 174 L.Ed.2d 354 (2009). “To be established clearly, however, there is no need that the very action in question [has] previously been held unlawful.” Id. (citation omitted). In fact, “the easiest cases don’t even arise.” Id. (citation omitted). School officials “can still be on notice that their conduct violates established law in novel factual circumstances.” Id. (citation omitted). The task is determining whether the preexisting law provided the defendants with “fair warning” that their conduct was unlawful. Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
In this case, the law has been clearly established since Tinker that school teachers enjoy First Amendment rights

V. CONCLUSION
*22 Plaintiff’s motion for summary judgment is granted as to all claims for relief; Defendants’ motion for summary judgment is denied as to all claims for relief. Plaintiff is entitled to a declaration that Defendants have violated Plaintiff’s individual rights protected by the First and Fourteenth Amendments to the United States Constitution, and Article I, §§ 2 and 4 of the California Constitution.
Plaintiff is entitled to nominal damages in the amount of $10 per individual Defendant. Plaintiff is entitled to an award of reasonable attorney’s fees and costs.
Defendants are ordered to permit Johnson to immediately re-display, in his assigned classroom, the two banners at issue in this case.
15

Johnson v. Poway Unified School Dist., Not Reported in F.Supp.2d (2010)
	  
16

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRADLEY R. J OHNSON,



Plaintiff-Appellee,

v.

POWAY UNIFIED SCHOOL DISTRICT;

JEFF MANGUM, individually and in

his official capacity as a Member

of the Board of Education for the

Poway Unified School District;

LINDA VANDERVEEN, individually

and in her official capacity as a

Member of the Board of

Education for the Poway Unified

School District; A NDREW PATAPOW,

individually and in his official

capacity as a Member of the



Board of Education for the Poway

Unified School District; T ODD

GUTSCHOW, individually and in his

official capacity as a Member of

the Board of Education for the

Poway Unified School District;

PENNY RANFTLE, individually and

in her official capacity as a

Member of the Board of

Education for the Poway Unified

School District; D ONALD A.

PHILLIPS, individually and in his

official capacity as Superintendent

of the Poway Unified School

District;



17321

17322

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

 DAWN KASTNER, individually and
in her official capacity as Principal, Westview High School, Poway Unified School District;
 WILLIAM R. CHIMENT, individually
and in his official capacity as Assistant Superintendent of the Poway Unified School District,
 Defendants-Appellants.

No. 10-55445
D.C. No. 3:07-cv-00783-
BEN-WVG
OPINION

Appeal from the United States District Court for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Argued and Submitted May 5, 2011—Pasadena, California

Filed September 13, 2011

Before: Barry G. Silverman, Richard C. Tallman, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Tallman

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

17325

COUNSEL
Daniel R. Shinoff, Jack M. Sleeth, Jr. (argued), Paul V. Carelli, IV, Stutz Artiano Shinoff & Holtz, APC, San Diego, California, for defendants-appellants Poway Unified School District, et al.

17326

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

Robert J. Muise (argued), Thomas More Law Center, Ann Arbor, Michigan, and Charles S. LiMandri, Law Offices of Charles S. LiMandri, Rancho Santa Fe, California, for plaintiff-appellee Bradley R. Johnson.

Francisco M. Negron, Jr., National School Boards Association, Alexandria, Virginia, and Thomas E.M. Hutton, Patterson Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle, Washington, for Amicus Curiae National School Boards Association and California School Boards Association in Support of defendants-appellants Request for Reversal.

Ayesha N. Khan, Michael A. Blank, Americans United for Separation of Church and State, Washington, D.C., for Amicus Curiae Americans United for Separation of Church and State in Support of appellants.

David Blair-Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, California, for Amicus Curiae American Civil Liberties Union of San Diego and Imperial Counties in Support of plaintiff-appellee and Affirmance with Modification of Judgment.

Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for Amici Curiae Christian Educators Association International and WallBuilders, Inc., in Support of plaintiff-appellee Urging Affirmance.

OPINION

TALLMAN, Circuit Judge:

We consider whether a public school district infringes the

First Amendment liberties of one of its teachers when

it

orders him not to use his public position as a pulpit from

which to preach his own views on the role of God in our

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

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Nation’s history to the captive students in his mathematics classroom. The answer is clear: it does not.

When Bradley Johnson, a high school calculus teacher, goes to work and performs the duties he is paid to perform, he speaks not as an individual, but as a public employee, and the school district is free to “take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995). Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.

Because we further conclude that the school district did not violate Johnson’s rights under either the Establishment or Equal Protection clauses of the United States Constitution, as applied by the Fourteenth Amendment, 1 we reverse the district court’s award of summary judgment to Johnson and remand with instructions to enter summary judgment in favor

1The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Section 1 of the Fourteenth Amendment provides, in relevant detail:
No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336 n.1 (1995).

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of the Poway Unified School District and its officials on all federal and state claims. 2

I

Bradley Johnson has spent more than 30 years teaching math to the students of the Poway Unified School District of San Diego County, California. In August 2003, he moved to the newly opened Westview High School to teach calculus and algebra. He teaches there still and is the faculty sponsor of the school’s student Christian club.

In late 2006, a fellow teacher at Westview set this action in motion when he questioned Dawn Kastner, the newly hired principal of Westview, about two large banners prominently displayed in Johnson’s classroom. Kastner, who had also heard about Johnson’s banners from a student and another teacher, went to Johnson’s classroom to see the banners for herself. What she found surprised her. In Johnson’s classroom, two large banners, each about seven-feet wide and twofeet tall, hung on the wall. See Appendix. One had red, white, and blue stripes and stated in large block type: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and, “GOD SHED HIS GRACE ON THEE.”3 The other stated: “All men are created equal, they are endowed by their CREATOR.” On that banner, the word “creator” occupied its own line, and each letter of “creator” was capitalized and nearly double the size of the other text.

Kastner recalled being overwhelmed by the size of the banners. She remembered walking into Johnson’s class “and

2We resolve these state law claims against Johnson and reverse the district court in a separate memorandum disposition filed concurrently with this opinion.
3Each of these phrases appears in official and historical texts. For example, “In God We Trust” is the official motto of the United States, and “One Nation Under God” is a line from the Pledge of Allegiance.

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

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going, ‘Wow, these are really big.’ ” She was more concerned, though, about the message. “It was a math class,” she later explained. “There were a lot of phrases that individually or in context were not problematic at all. But because they were taken out of context and very large, they became a promotion of a particular viewpoint”—a religious viewpoint “that might make students who didn’t share that viewpoint uncomfortable.” The “common thread in all of those were the words ‘God, Creator.’ Those were all sort of pulled out of the context of their original [meaning] — and the signs were, like, 10 feet, 7 feet, something like that. There were two very large signs.”

Unsure as to what she should do, Kastner called Melavel Robertson, one of Poway’s assistant superintendents. She described the banners to Robertson and told her that “some people [had] mention[ed] that they don’t know why these signs are allowed in the classroom, and I just saw what they’re talking about.” At Robertson’s request, she had pictures taken of Johnson’s banners and sent to Robertson, who forwarded them to Bill Chiment, the assistant superintendent tasked with “legal issues.”

While waiting for further direction from the superintendent’s office, Kastner met with Johnson to talk about his banners. She told him that she felt the signs might inappropriately emphasize the words “God” and “Creator” and suggested that his displays might be more appropriate if the passages were each displayed in the context of the historical artifact or document from which they were pulled. “We talked about the possibility of putting the entire thing up in context so if a phrase was from the Declaration [of Independence], put the entire Declaration up.” Also, “we talked about taking a smaller version of that and having smaller — smaller expressions of his personal beliefs around his desk area.”

Kastner asked Johnson to consider how a student of a different faith might feel if they walked into his classroom and

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saw his banners. “[T]hey may feel like, ‘Wow, I’m not welcome,’ or ‘I’m not gonna fit in this classroom.’ And they may feel bad. And I can’t imagine that that would ever be your intent.” Johnson was not convinced. According to Kastner, he told her, “Dawn, sometimes that’s necessary,” and refused to either remove his banners or display the more contextual versions the school offered to provide. 4 He explained that he had displayed the banners in some form or another since 1982, that they simply contained patriotic phrases, and that he considered it his “right to have them up.”

After the meeting with Johnson, Kastner spoke with Chiment and informed him of their discussion. Eventually, the full school board approved the decision to order Johnson to remove the banners. On January 19, 2007, Chiment phoned Johnson and told him that he would need to remove his banners. Four days later, Chiment followed up his phone call with a letter directing Johnson to review Poway Unified School District Administrative Procedure 3.11.2, “The Teaching of Controversial Issues,” as well as California Education Code § 51511.5 He told Johnson to pay particular care to Poway’s requirement that teachers “[f]ollow the requirements on prohibited instruction as contained in the California Education Code” and “[d]istinguish between teaching and advocating, and refrain from using classroom teacher influence to promote partisan or sectarian viewpoints.”

4For example, the school offered to provide, and did provide, Johnson with a large poster of a quarter that displayed the phrase “In God We Trust” in context.
5That section provides:
Nothing in this code shall be construed to prevent, or exclude from the public schools, references to religion or references to or the use of religious literature, dance, music, theatre, and visual arts or other things having a religious significance when such references or uses do not constitute instruction in religious principles or aid to any religious sect, church, creed, or sectarian purpose and when such references or uses are incidental to or illustrative of matters properly included in the course of study.

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

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Chiment explained that the “prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all of which include the word ‘God’ or ‘Creator’ has the effect of using your influence as a teacher to promote a sectarian viewpoint.” He added that these uses also constituted “aid to a particular religious sect, creed, or sectarian purpose” because they were “not incidental or illustrative of matters properly included in your course of study as a teacher of mathematics.”

Johnson complied with the district’s order and removed his banners. Shortly thereafter, he filed suit in federal court, alleging that Poway had violated his rights under the First and Fourteenth amendments of the United States Constitution, and article I, sections 2 and 4, of the California Constitution. He sought declaratory and injunctive relief.

After the lawsuit was filed, Johnson conducted site inspections at all four high schools in the school district. He identified and photographed a lengthy list of items he believed displayed sectarian viewpoints, including Tibetan prayer flags; a John Lennon poster with “Imagine” lyrics; a Mahatma Gandhi poster; a poster of Gandhi’s “7 Social Sins”; a Dalai Lama poster; a poster that says, “The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality”; and a poster of Malcolm X. 6 Both parties also deposed school officials, including Kastner and Chiment, and some teachers, including Johnson. In his deposition, Johnson initially maintained that his banners were purely patriotic with no religious purpose. When pressed, however, he stated:

My purpose was to celebrate our national heritage of — and the national motto saying the Pledge of Allegiance. I know that there’s — you know, is it God

6We identify only those materials that could possibly be construed as religious. The remaining displays are ultimately immaterial to our inquiry.

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JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

or is it — or is there no God. If that’s the choice, then this is espousing God as opposed to no God, I’ll say that, but not any particular God.

He later added, in regard to his selections, “I’m not intending to highlight or promote any of that kind of religious background because I don’t know what it was. I’m trying to highlight the religious heritage and nature of our nation, that we have that as a foundation.”

On August 14, 2009, cross-motions for summary judgment were filed. On February 25, 2010, the district court granted Johnson summary judgment on each of his claims. It concluded that Poway had created a limited public forum for teacher speech in its classrooms and had impermissibly limited Johnson’s speech based upon his viewpoint. It granted Johnson declaratory relief and ordered Poway not to interfere with Johnson’s future display. It also found that the school officials were not entitled to qualified immunity and ordered each to pay nominal damages. Johnson later moved for attorney’s fees in the amount of $240,563.15. That motion has been stayed pending the outcome of Poway’s timely appeal.

II

We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the district court’s grant of summary judgment to “determine, viewing the evidence in the light most favorable to the nonmoving party and drawing all justifiable inferences in its favor, whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). Because the parties filed cross-motions for summary judgment, we consider each party’s evidence to evaluate whether summary judgment was appropriate. Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT III

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We consider the district court’s determination that Poway violated Johnson’s rights under the Free Speech and Establishment clauses of the First Amendment, as well as his equal protection rights under the Fourteenth Amendment.

A

We address first whether the district court erred in holding that Poway violated Johnson’s federal free speech rights when it ordered that he no longer display his banners in his classroom.

In undertaking this inquiry, we consider whether the court erred in applying a pure forum-based analysis rather than the Pickering-based inquiry crafted by the Supreme Court to measure the constitutionality of the government’s curtailment of government-employee speech. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill. , 391 U.S. 563, 568 (1968) (“[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”). Because we hold that Pickering’s employee-speech analysis controls, we further consider whether Poway’s actions ran afoul of the sequential five-step Pickering-based test we adopted in Eng v. Cooley , 552 F.3d 1062, 1070-72 (9th Cir. 2009). As we can conceive of no basis for concluding that Johnson’s speech was protected, we reverse the district court’s award of summary judgment on this issue and remand with instructions to enter judgment in favor of Poway.

1

[1] To some degree, we can understand the district court’s mistake. An analysis of the government’s regulation of speech ordinarily hinges on the context, or forum, in which the

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JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

speech takes place. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 44-46 (1983). Under that traditional rubric, the government’s power is at its least when speech takes place in a public forum, is greater when it is regulating speech in a limited public forum, and is at its greatest when regulating speech in a non-public forum. Id.

[2] However, the Supreme Court has held that where the government acts as both sovereign and employer, this general forum-based analysis does not apply. Pickering, 391 U.S. at 568; accord Garcetti v. Ceballos , 547 U.S. 410, 417-19 (2006); City of San Diego, Cal. v. Roe, 543 U.S. 77, 80 (2004) (“[A] governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.”). Instead, the Court applies a distinct Pickering-based analysis that “reconcile[s] the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission.” Roe, 543 U.S. at 82.

As initially described in Pickering, this analysis required only that courts balance “ ‘the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Eng, 552 F.3d at 1070 (alteration in original) (quoting Pickering, 391 U.S. at 568). Since Pickering, however, the test has evolved. See, e.g., Ceballos, 547 U.S. at 423-24, 426 (speech must not be made pursuant to duties as employee); Roe, 543 U.S. at 82-83 (“speech must touch on a matter of ‘public concern’ ” (citing Connick v. Myers, 461 U.S. 138, 143 (1983)); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 285-86 (1977) (causation). We have distilled this evolution into a “sequential fivestep” inquiry:

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private

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citizen or public employee; (3) whether the plaintiff ’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.

Eng, 552 F.3d at 1070. Notably, “because these are sequential steps,” a plaintiff ’s failure to satisfy a single one “necessarily concludes our inquiry.” Huppert v. City of Pittsburg, 574 F.3d 696, 703 (9th Cir. 2009).

Despite Pickering and its progeny, the district court concluded that “the Pickering balancing test for government employee speech is the wrong test to apply” to measure the legality of Poway’s actions. Johnson v. Poway Unified Sch. Dist., No. 3:07-cv-783-BEN-WVG, 2010 WL 768856, at *8 (S.D. Cal. Feb. 25, 2010). It rested this conclusion on a single fact—that Johnson’s speech occurred in school, noting “ ‘[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ ” Id. at *7 (alteration in original) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 506 (1969) (emphasis added)). On appeal, Johnson urges us to follow suit. We decline his invitation.

[3] Contrary to Johnson’s belief and the district court’s determination, no justifiable cause exists for refusing to apply our Pickering-based analysis to Johnson’s claim. See Tucker v. Cal. Dep’t of Educ ., 97 F.3d 1204, 1210 (9th Cir. 1996) (applying Pickering) (“Casting these red herrings aside, we look instead to applicable doctrine, which is found in the case law governing employee speech in the workplace.”); see also Berry v. Dep’t of Soc. Servs. , 447 F.3d 642, 649-50 (9th Cir. 2006) (rejecting an employee’s contention that a “stricter test” than our Pickering-based analysis should apply when the

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underlying speech is religious); Downs v. L.A. Unified Sch.

Dist., 228 F.3d 1003, 1016 (9th Cir. 2000).7 First, our “school

speech” precedent in no way suggests that Pickering does not

control in cases of in-school teacher speech. Not one of those

cases relied upon by the district court applied a Pickering-

based analysis because not one involved a

government

employee—a fact that renders Pickering’s absence not only

unsurprising, but necessary. Compare Johnson, 2010 WL

768856, at *8 (citing cases), with Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 266 (1988) (student journalists);

Truth v. Kent Sch. Dist., 542 F.3d 634, 648-49 (9th Cir. 2008)

(student Bible club), overruled on other grounds by L.A.

Cnty., Cal. v. Humphries, 131 S. Ct. 447 (2010); Flint v. Den-

nison, 488 F.3d 816, 830 (9th Cir. 2007) (student); and Hills

v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044,

1048-50 (9th Cir. 2003) (per curiam) (religious non-profit

corporation).

Pickering and Tinker are not mutually exclusive concepts. Tinker, 393 U.S. at 506 (“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.” (emphasis added)). The very basis for undertaking a Pickering-based analysis of teacher speech, whether in-class or out, is the Court’s recognition that teachers do not “relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.” Pickering, 391 U.S. at 568. That much should be evident from the test itself,

7Johnson argues that Downs is immaterial to a Pickering-based inquiry. We disagree. Downs recognized that the threshold inquiry in employeespeech cases is whether the citizen or the government was speaking. Downs, 228 F.3d at 1011-12 (“Rather than focusing on what members of the public might perceive Downs’s speech to be, in this case we find it more helpful to focus on who actually was responsible for the speech . . . .”). Six years later, the Court did the same in Ceballos. 547 U.S. at 421. Because we now undertake that very inquiry under step two of Eng, see 552 F.3d at 1070, Downs is not only relevant, it largely controls.

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which requires that we “balance between the interests of the teacher, as a citizen, . . . and the interest of the State.” Id. (emphasis added); accord Ceballos, 547 U.S. at 418 (noting that absent a First Amendment right there can be no First Amendment claim).

Thus, to do as Johnson suggests would require us to ignore that Pickering itself concerned a school district’s attempt to curtail the out-of-school speech of a high school teacher. 391 U.S. at 564, 568. It would require us to forget the very rationale undergirding the Court’s creation of the Pickering doctrine: that “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom,” or else “there would be little chance for the efficient provision of public services.” Ceballos, 547 U.S. at 418 (citing Connick, 461 U.S. at 143 (“[G]overnment offices could not function if every employment decision became a constitutional matter.”)). It would require that we somehow conclude that a teacher’s in-school speech warrants greater protection than his or her out-of-school speech—a proposition directly at odds with the common understanding of Pickering and its progeny. Id. at 423-24 (explaining that “public statements” made “outside the course of performing . . . official duties” engender the greatest “First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government”); see Downs, 228 F.3d at 1016.

Moreover, addressing similar claims in similar contexts, we have refused to unnecessarily narrow Pickering’s application. Berry, 447 F.3d at 649 (declining to apply a forum-based analysis to evaluate the government’s curtailment of an employee’s religious speech “because [the forum analysis] does not take into consideration the employer’s interests that led the Supreme Court to adopt the Pickering balancing test in the first place.”); id. at 650 (“Here, Mr. Berry contends that his speech is protected under the First Amendment as religious speech, rather than as comments upon matters of public

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JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

concern. Nonetheless, we conclude that the Pickering balancing approach applies regardless of the reason an employee believes his or her speech is constitutionally protected.”); Tucker, 97 F.3d at 1210.

So too have our sister circuits. When addressing claims concerning in-school teacher speech, each has applied Pickering to measure the constitutionality of the government’s conduct. E.g., Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist. , 624 F.3d 332, 340 (6th Cir. 2010); Borden v. Sch. Dist. of East Brunswick, 523 F.3d 153, 171 (3d Cir. 2008) (holding under Pickering-based analysis that school could prohibit faculty participation in student-initiated prayer); Lee v. York Cnty. Sch. Div. , 484 F.3d 687, 700 (4th Cir. 2007) (holding under a Pickering-based analysis that a school board did not infringe the rights of a teacher when it ordered him to remove religious material from a classroom bulletin board); Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1204 (10th Cir. 2007); Williams v. Dallas Indep. Sch. Dist. , 480 F.3d 689, 694 (5th Cir. 2007); Mayer v. Monroe Cnty. Cmty. Sch. Corp. , 474 F.3d 477, 479-80 (7th Cir. 2007) (applying Pickering-based test and holding that “the [F]irst [A]mendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system”). We see no reason to depart from their company.

[4] In sum, we think it plain that the appropriate guide for measuring the legality of the government’s curtailment of employee speech in the workplace, including that of teachers, would be that Supreme Court “case law governing employee speech in the workplace.” See Tucker, 97 F.3d at 1210 (citing Pickering); see also Downs, 228 F.3d at 1012, 1015. The district court erred by declining to apply the controlling Pickering-based analysis.

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Having identified the Pickering-based approach as the appropriate standard by which to measure Poway’s conduct, we apply our five-step Pickering-based analysis to determine whether Poway violated Johnson’s federal free speech rights when it ordered that he remove his banners from his classroom8.

Applying that standard, we conclude that there is no legitimate question as to whether the school violated Johnson’s rights—it did not. Downs, 228 F.3d at 1016; see EvansMarshall, 624 F.3d at 340; Mayer, 474 F.3d at 479-80; Edwards v. Cal. Univ. of Pa. , 156 F.3d 488, 491 (3d Cir. 1998) (“[A]lthough a teacher’s out-of-class conduct, including her advocacy of particular teaching methods, is protected, her in-class conduct is not.” (citation and internal quotation marks omitted)); see also Borden, 523 F.3d at 171; Lee, 484 F.3d at 700. Though we do not lightly conclude that Johnson surpasses Eng-step one, “(1) whether the plaintiff spoke on a matter of public concern,” 552 F.3d at 1070, we recognize that our hesitation is driven not by the nature of the speech itself but by the “in-school” setting and opportunity for that speech. These concerns underlie our inquiry under Eng-step two, “(2) whether the plaintiff spoke as a private citizen or public employee,” id. at 1071 (relying on Ceballos, 547 U.S. at 423-24), and lead us to conclude that Johnson spoke as an employee, not as a citizen. Accordingly, we climb no further. Huppert, 574 F.3d at 703 (“[F]ailure to meet one [step] necessarily concludes our inquiry.”).

8Ordinarily, we would remand the matter to allow the district court to first pass on the issue. However, because the record fails to establish any genuine issues of material fact that would preclude us from resolving the legal questions presented under our Eng analysis, and because the parties briefed and argued the issue, we are adequately informed and think it expedient to resolve the matter. See Thomas v. Or. Fruit Prods. Co., 228 F.3d 991, 995 (9th Cir. 2000).

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JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT a

[5] Under Eng, Johnson must first demonstrate that his banners “touched upon a matter of public concern.” Connick, 461 U.S. at 149; Eng, 552 F.3d at 1070.

This inquiry “is one of law, not fact.” Connick, 461 U.S. at 148 n.7. And our aim, at least in theory, is simple: to determine whether the content of the employee’s speech is sufficiently important to the public that its curtailment “warrant[s] judicial review.” Berry, 447 F.3d at 649; accord Roe, 543 U.S. at 82-83.

To put theory into practice, we undertake a “generalized analysis of the nature of the speech.” Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009); see Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001) (declining to adopt “rigid multi-part tests that would shoehorn communication into ill-fitting categories”). Under that analysis, we consider generally “the content, form, and context of a given statement, as revealed by the whole record,” id. (quoting Connick, 461 U.S. at 147-48), to ascertain whether speech “fairly can be said to relate to ‘any matter of political, social, or other concern to the community,’ ” Huppert, 574 F.3d at 703 (quoting Connick, 461 U.S. at 147-48).

Of the three concerns, content is king. Desrochers, 572
F.3d at 710. It is “the greatest single factor in the Connick
inquiry,” id., and our primary concern. See, e.g., Rankin v. McPherson, 483 U.S. 378, 386-87 (1987); Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414-16 (1979). 9 Form and

9In Rankin, for example, the Court concluded that the private form of an employee’s speech—that the employee had spoken to a co-worker during work hours in an informal and private manner—could not negate the inherently public character of her political speech. 483 U.S. at 386-87; accord Roe, 543 U.S. at 84 (“[C]ertain private remarks, such as negative comments about the President of the United States, touch on matters of

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context only truly inform our legal inquiry in those “close” cases where “the subject matter of a statement is only marginally related to issues of public concern.” Desrochers, 572 F.3d at 710 (quoting Johnson v. Multnomah Cnty., Or., 48 F.3d 420, 425 (9th Cir. 1995)). In those cases, “the fact that [a statement] was made because of a grudge or other private interest or to co-workers rather than to the press may lead the court to conclude that the statement does not substantially involve a matter of public concern.” Id. (quoting Multnomah Cnty., 48 F.3d at 425).

[6] In the present case, our crowning of content is disposi-

tive. Desrochers, 572 F.3d at 710; see Rankin, 483 U.S. at

386-87. Though Johnson maintains that his banners express

purely patriotic sentiments—that they concern “well-known

historical, patriotic phrases and slogans central to

our

Nation’s history”—it seems as plain to us as it was to school

officials that Johnson’s banners concern religion. As Johnson

conceded at his deposition, “[T]his is discussing God as

opposed to no God . . . . I’m trying to highlight the religious

heritage and nature of our nation, that we have that as a foun-

dation.” Moreover, his after-the-fact statements merely rein-

force the obvious. One would need

to be remarkably

unperceptive to see the statements “IN GOD WE TRUST,”

“ONE NATION UNDER GOD,” “GOD BLESS AMERI-

CA,” “GOD SHED HIS GRACE ON THEE,” and “All men

are created equal, they are endowed by their CREATOR,” as

public concern and should thus be subject to Pickering balancing” regardless of the manner in which they were conveyed. (discussing Rankin)). Similarly, in Givhan, the Court rejected the assertion that Mrs. Givhan, a public high school teacher, had forfeited her First Amendment interest in her speech protesting “racial discrimination—a matter inherently of public concern,” Connick, 461 U.S. at 148 n.8—simply because she “arrange[d] to communicate privately with h[er] employer rather than to spread h[er] views before the public.” 439 U.S. at 414-16.

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organized and displayed by Johnson and not understand them to convey a religious message. 10 See Appendix.

[7] Because speech concerning religion is unquestionably of inherent public concern, Tucker, 97 F.3d at 1212-13; see Connick, 461 U.S. at 144 (“[I]t [i]s already ‘too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.’ ” (quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963))), our inquiry under Eng step one is concluded, and we climb to the second step of Eng.11

10To be clear, we do not hold that these phrases necessarily equate to speech concerning religion in and of themselves. See, e.g., Newdow v. Rio Linda Union Sch. Dist. , 597 F.3d 1007, 1019-20 (9th Cir. 2010) (holding that the phrase, “under God,” did not render the Pledge of Allegiance unconstitutional because “[w]e must examine the Pledge as a whole” to take account of context). Organized differently, such as in the context of their historical significance, these terms may well lack any overt religious import, id.—a reality Poway itself recognized when it offered to provide Johnson substitute posters. However, the bare fact that Johnson pulled each phrase from a non-religious historical text does not categorically preclude us from concluding that he used these otherwise innocuous phrases to convey a religious message. Pleasant Grove City, Utah v. Summum , 555 U.S. 460, 129 S. Ct. 1125, 1136 (2009) . And it is his organization and his selected emphasis on the words “God” and “Creator” that drive our conclusion that the banners concerned religion. See Connick, 461 U.S. at 148 n.7.
11We decline Poway’s invitation to apply the curricular speech doctrine in this case. See generally Lee, 484 F.3d at 697 (explaining that the threshold inquiry for “curricular speech” is whether the speech “constitute[s] school-sponsored expression bearing the imprimatur of the school”). As we will explain shortly in greater detail, this “is not a case involving the risk that a private individual’s private speech might simply ‘bear the imprimatur’ of the school or be perceived by outside individuals as ‘school-sponsored.’ ” Downs, 228 F.3d at 1011. “Instead, we face an example of the government opening up its own mouth” to speak through the mouthpiece of one of its employees—a categorically different situation because, as Downs explains, we “review [a school’s] actions through a viewpoint neutrality microscope” in imprimatur cases, id. at 1012, but not “ ‘when the State is the speaker,’ ” id. at 1013 (quoting Rosenberger, 515 U.S. at 833).

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[8] The second Eng step requires Johnson to show that he
“spoke as a private citizen,” not as a “public employee.” Eng, 552 F.3d at 1070-71. 12

Two inquiries are necessary to resolve this mixed question of law and fact. Posey v. Lake Pend Oreille Sch. Dist. No. 84 , 546 F.3d 1121, 1129 (9th Cir. 2008). First, a factual determination must be made as to the “scope and content of a plaintiff ’s job responsibilities.” Eng, 552 F.3d at 1071. In undertaking this inquiry, courts are not to rely mechanically on formal or written job descriptions, which “often bear little resemblance to the duties an employee actually is expected to perform.” Ceballos, 547 U.S. at 424-25. “The proper inquiry is a practical one.” Id. at 424.

Second, the “ultimate constitutional significance” of those

facts must be determined as a matter of law. Eng, 552 F.3d

at 1071 (citations and internal quotation marks omitted). If

Johnson spoke as any ordinary citizen might, then our inquiry

continues. Ceballos, 547 U.S. at 419. But if Johnson’s speech

“owes its existence” to his position as a teacher, then Johnson

spoke as a public employee, not as a citizen, and our inquiry

is at an end. Id. at 421-22 (The First Amendment “does not

invest [government employees] with a right to perform their

jobs however they see fit.”); Evans-Marshall, 624 F.3d at 340

(concluding that when teacher speaks as a

government

employee “the school board that hires that speech . . . can

surely ‘regulate the content of what is or is not expressed’ ”

(quoting Rosenberger, 515 U.S. at 833 (The government

12We reject the contention that Eng step two, which is derived from Ceballos, does not apply to inquiries regarding teacher speech. As the Sixth Circuit recognized in Evans-Marshall, Ceballos’s “academic freedom” carve-out, 547 U.S. at 425, applied to teachers at “public colleges and universities,” id. at 438 (Souter, J., dissenting), not primary and secondary school teachers. 624 F.3d at 342-44; see Edwards v. Aguillard, 482 U.S. 578, 584 n.5 (1987).

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retains the power to “regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message.”))); see Downs, 228 F.3d at 1013 (“Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist.”).

Our factual issue is not in dispute. Johnson does not hold a unique or exotic government position. As found by the district court, he is a math teacher who performs the ordinary duties of a math teacher. Johnson, 2010 WL 768856, at *2. In addition, Johnson did not make his speech while performing a function not squarely within the scope of his position. 13 He was not running errands for the school in a car adorned with sectarian bumper stickers or praying with people sheltering in the school after an earthquake. “Rather, Johnson hung his banners pursuant to a long-standing Poway Unified School District policy, practice, and custom,” id., of permitting teachers to decorate their classrooms subject to specific limitations and the satisfaction of the principal or a District administrator.

[9] More importantly, we recognize that “[e]xpression is a

teacher’s stock in trade, the commodity she sells

to her

employer in exchange for a salary.” Mayer, 474 F.3d at 479;

Evans-Marshall, 624 F.3d at 340. Thus, as a practical matter,

we think it beyond possibility for fairminded dispute that the

“scope and content of [Johnson’s] job responsibilities” did not

include speaking to his class in his classroom during class

hours. Cf. Ceballos, 547 U.S. at 424.

13We acknowledge that the district court determined that the banners were not part of Johnson’s curriculum. This finding is irrelevant, however, to the question of whether Johnson spoke as a citizen or as an employee. Downs, 228 F.3d at 1015 (“Whether or not the bulletin boards by themselves may be characterized as part of the school district’s ‘curriculum’ is unimportant, because curriculum is only one outlet of a school district’s expression of its policy.”); Peloza v. Capistrano Unified Sch. Dist. , 37 F.3d 517, 522-23 (9th Cir. 1994).

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[10] We consider next our legal inquiry: whether Johnson’s speech owes its existence to his position, or whether he spoke just as any non-employee citizen could have. The answer is clear; he spoke as an employee. Downs, 228 F.3d at 1015; see also Peloza, 37 F.3d at 522-23. Certainly, Johnson did not act as a citizen when he went to school and taught class, took attendance, supervised students, or regulated their comings-and-goings; he acted as a teacher—a government employee. Cf. Ceballos, 547 U.S. at 422 (“Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. . . . When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee.”). Similarly, Johnson did not act as an ordinary citizen when “espousing God as opposed to no God” in his classroom. Peloza, 37 F.3d at 522-23; Mayer, 474 F.3d at 479-80 (“The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.”); see Lee, 484 F.3d at 695.

As we recognized in Peloza,14 teachers do not cease acting as teachers each time the bell rings or the conversation moves beyond the narrow topic of curricular instruction. Peloza, 37 F.3d at 522; see Downs, 228 F.3d at 1015. Rather, because of the position of trust and authority they hold and the impressionable young minds with which they interact, teachers necessarily act as teachers for purposes of a Pickering inquiry when at school or a school function, in the general presence

14We are not persuaded by the district court’s attempt to distinguish Peloza. Though it is true that Peloza only barred religious speech during “instructional time,” Johnson, 2010 WL 768856, at *16, the court accepted the school district’s expansive definition of “instructional time,” i.e., “any time students are required to be on campus as well as the time students immediately arrive for the purposes of attending school for instruction, lunch time, and the time immediately prior to students’ departure after the instructional day.” Peloza, 37 F.3d at 522. The setting for Johnson’s speech fell well within that expansive definition.

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of students, in a capacity one might reasonably view as officia15l. Peloza, 37 F.3d at 522; Tucker, 97 F.3d at 1210, 1212-13 (“A teacher appears to speak for the state when he or she teaches; therefore, the department may permissibly restrict such religious advocacy.”)16; see Aguillard , 482 U.S. at 584 (“The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure.”); Downs, 228 F.3d at 1015; see also Berry, 447 F.3d at 651-52 (discussing displays in public areas of government offices).

[11] An ordinary citizen could not have walked into John-

son’s classroom and decorated the walls as he or she saw fit,

anymore than an ordinary citizen could demand that students

remain in their seats and listen to whatever idiosyncratic per-

spective or sectarian viewpoints he or she wished to share.

See Peloza, 37 F.3d at 522-23; Mayer, 474 F.3d at 479-80;

Lee, 484 F.3d at 695. Unlike Pickering, who wrote a letter to

his local newspaper as any citizen might, 391 U.S. at 564, or

Givhan, who met with her school’s principal, a

fellow

employee who willingly “opened his office door to” her

speech, 439 U.S. at 415, Johnson took advantage of his posi-

tion to press his particular views upon the impressionable and

“captive” minds before him. See Aguillard, 482 U.S. at

583-84; Tucker, 97 F.3d at 1203.

15We emphasize that teachers may still speak as government employees if fewer than all three conditions are met.
16In Tucker, we concluded that the California Department of Education had impermissibly curtailed the First Amendment rights of one of its computer analysts, an employee with “no educational function whatsoever” or any interaction with the public, when it precluded him from discussing his religious beliefs at work. 97 F.3d at 1208, 1212-13. We concluded, however, that the result of our Pickering-based analysis would have been wholly different had the department’s decision “applied to teachers acting in their role as teachers, or to department employees addressing the public in their official capacities.” Id. at 1213; see Berry, 447 F.3d at 650, 652.

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Finally, as Downs demonstrates, we need not reach a different conclusion simply because Poway allows its teachers some freedom in decorating their classrooms. 228 F.3d at 1011-12. In Downs, high school teachers and other staff members created a bulletin board in a school hallway on which staff could post, pursuant to a school board policy, materials related to “Gay and Lesbian Awareness Month.” Id. at 1006. Like Poway’s policy for classroom decoration, “[m]aterials did not need approval before posting on the Gay and Lesbian Awareness bulletin boards, but were subject to the oversight of the school principal, who had ultimate authority within the school over the content of the boards.” Id. Also like Poway’s policy, the school policy at issue in Downs permitted only faculty and staff to post materials, but allowed “[m]aterials . . . cover[ing] a wide range of topics” to be posted. Id.

Dissatisfied with the materials being posted by his coworkers, Downs decided to counteract their message by hanging a competing bulletin board on which he posted his own anti-homosexual materials. Id. at 1006-07. After his coworkers complained, the school district ordered that he remove his board and materials. Id. at 1007. Like Johnson, Downs sued. Id. at 1008.

[12] On appeal, we quickly cast aside Downs’s contention, echoed by Johnson today, that the school had created a limited public forum either by allowing teachers to post materials of their choosing or by not “strictly policing” those materials posted and had thus relinquished its right to restrict the viewpoints expressed.17 Id. at 1011-12; Tucker, 97 F.3d at 1209. 18

17This contention is also repudiated by the fact that Johnson and his coworkers are all employees of the school and therefore not members of the “public.” Perry, 460 U.S. at 47 (rejecting the argument that a limitedpublic forum had been created because the school had not “opened its mail system for indiscriminate use by the general public” but rather had permitted only entities “affiliated with the schools” to use the system).
18In Tucker, the Court flatly rejected the contention that a public forum could be created through mere inaction:

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We concluded that it would be better “to focus on who actually was responsible for the speech on Leichman High’s . . . bulletin boards”: the government. Downs, 228 F.3d at 1011-12.

Only school faculty and staff had access to post materials on these boards. While these faculty and staff members may have received materials from outside organizations, the faculty and staff members alone posted material on the bulletin boards, and at all times their postings were subject to the oversight of the school principals. Although much, if not all, of what Downs posted appeared on the bulletin board directly across the hall from his assigned classroom, the proximity of the board to his classroom detracts in no way from the conclusion that the bulletin board, like all others in Leichman High’s halls, were the property and responsibility of Leichman High and LAUSD. That Leichman High’s principals do not spend the majority of their days roaming the school’s halls strictly policing—or, in Downs’s point of view, censoring—the school’s bulletin boards does not weaken our conclusion that there is no genuine issue of material fact concerning whether [the principals] had the authority to enforce and give voice to school district and school board

In Cornelius v. NAACP Legal Defense Fund , 473 U.S. 788, 802 . . . (1985), the Court stated, “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” (emphasis added). Assuming that Tucker and his coworkers talked about whatever they wanted to at work (before the passage of the challenged order), and that they posted all sorts of materials on the walls, that still would not show that the government had intentionally opened up the workplace for public discourse.
97 F.3d at 1209.

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policy. Inaction does not necessarily demonstrate a lack of ability or authority to act.

* **

We do not face an example of the government opening up a forum for either unlimited or limited public discussion. Instead, we face an example of the government opening up its own mouth . . . .

Id. at 1011-12. Accordingly, the board could “ ‘take legitimate and appropriate steps to ensure that its message [wa]s neither garbled nor distorted’ by its individual messengers,” including ordering Downs to curtail his speech. Id. at 1011, 1013 (quoting Rosenberger, 515 U.S. at 833 (“[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.”)). We see no reason why the logic of Downs should not apply in the present case.19 Johnson spoke as an employee, not as a citizen.

[13] In sum, nothing in our holding today prevents Johnson from himself propounding his own opinion on “the religious heritage and nature of our nation” or how “God places prominently in our Nation’s history.” “Subject to any applicable forum analysis, he may [generally] do so on the sidewalks,

19We again disagree with the district court’s treatment of our controlling case law. Not all the materials posted on the bulletin boards in Downs “were supplied by the school district,” and Downs did not post his materials on boards provided and erected by the school. 228 F.3d at 1006, 1011 (“Downs created his own bulletin board”). Contra Johnson, 2010 WL 768856, at *17.
Moreover, even if true, these forced distinctions are immaterial. So long as it is still the school’s walls being adorned and the school’s charges being indoctrinated, the school acts well within its power. Berry, 447 F.3d at 651 (“[T]he government ‘has a greater interest in controlling what materials are posted on its property than it does in controlling the speech of the people who work for it.’ ” (quoting Tucker, 97 F.3d at 1214)); Peloza, 37 F.3d at 522; Lee, 484 F.3d at 695.

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in the parks, through the chat-rooms, at his dinner table, and in countless other locations.” Id. at 1016 (citing Rust v. Sullivan, 500 U.S. 191, 198 (1991)). “He may not do so, however, when he is speaking as the government, unless the government allows him to be its voice.” Id.; see Pleasant Grove, 129 S. Ct. at 1131 (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”). Because the speech at issue owes its existence to Johnson’s position as a teacher, Poway acted well within constitutional limits in ordering Johnson not to speak in a manner it did not desire. Ceballos, 547 U.S. at 421-22; Downs, 228 F.3d at 1013 (citing Rosenberger , 515 U.S. at 833); Peloza, 37 F.3d at 522-23.

B

If the displays at issue in this case did not concern religion, our identification of the speech as the government’s would end our inquiry. Ceballos, 547 U.S. at 421-22. As we have discussed, the Free Speech Clause “has no application” to government speech, Pleasant Grove, 129 S. Ct. at 1131, and, as we will discuss, individuals like Johnson have no personal interest in government speech on which to base an equal protection claim, Downs, 228 F.3d at 1017; see Ceballos, 547 U.S. at 421-22. In regard to those claims, the bare fact that the speech belongs to the government is dispositive.

The same cannot be said for the Establishment Clause, however. That Clause does apply to government speech. E.g., Pleasant Grove, 129 S. Ct. at 1131-32 (noting that the “involvement of public officials in advocacy may be limited by law, regulation, or practice,” including the Establishment Clause). And thus the government could run afoul of the Clause either through its speech, id., or, as argued by Johnson, through its act to curtail its speech—in this case, the display of the banners, 20 see Vasquez v. L.A. Cnty. , 487 F.3d 1246,

20To be clear, Johnson and amici err in asserting that Poway could only curtail Johnson’s display if the banners violated the Establishment Clause. In fact, the opposite is true. Poway may freely curtail its own speech unless that curtailment runs afoul of the Establishment Clause.

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1247-48, 1254-58 (9th Cir. 2007) (evaluating whether the
removal of a cross from the Los Angeles County seal “con-
veyed a state-sponsored message of hostility toward Chris-
tians” in contravention of the Establishment Clause). In short,
as Johnson complains, that Poway’s “policy, practice, and/or
custom, of prohibiting [the] banners,” while permitting other displays,21 “conveys an impermissible, government-sponsored
message of disapproval of and hostility toward the Christian religion . . . and our Nation’s Judeo-Christian heritage.” 22

The district court found that the government had done just that; it ruled that Poway had violated the Establishment Clause by endorsing “Buddhist, Hindu, and anti-religious speech . . . while silencing the Judeo-Christian speech of Johnson.” Johnson, 2010 WL 768856, at *19. We review that conclusion de novo, Vasquez, 487 F.3d at 1254, and believe the claim involves two distinct but related contentions. First, that Poway evidenced a hostility toward Judeo-Christianity in curtailing the display of the banners, and second, that it displayed a hostility toward Judeo-Christianity and an endorsement of other religious beliefs via its presentation of the “other displays.”

[14] We start with the basics. The Establishment Clause does not wholly preclude the government from referencing religion. Grove v. Mead Sch. Dist. No. 354 , 753 F.2d 1528, 1534 (9th Cir. 1985) (“Not all mention of religion is prohibited in public schools.”); see also Stone v. Graham , 449 U.S. 39, 42 (1980) (per curiam) (“[T]he Bible may constitutionally

21To recap, we refer to the Tibetan prayer flags; a John Lennon poster with “Imagine” lyrics; a Mahatma Gandhi poster; a poster of Gandhi’s “7 Social Sins”; a Dalai Lama poster; a poster that says, “The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality”; and a poster of Malcolm X.
22We think it worthwhile to note the inherent inconsistency of Johnson’s claims. If Johnson’s speech does not contain some religious import, then we would be hard-pressed to see how the cessation of that speech evidences a “hostility toward the Christian religion.”

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be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.”). Not only would such a drastic and draconian requirement raise substantial difficulties as to what might be left to talk about, but, as the district court took great pains to point out, it would require that we ignore much of our own history and that of the world in general.23 Cf. Grove, 753 F.2d at 1534 (noting Stone).

[15] Rather, what the Clause requires is “governmental neutrality”—“neutrality between religion and religion, and between religion and nonreligion.” McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)) (other citations omitted). It requires that the government “not be overtly hostile to religion but also that it may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general, compelling nonadherents to support the practices or proselytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community.” Tex. Monthly, Inc. v. Bullock , 489 U.S. 1, 9 (1989) (plurality opinion); see Lemon v. Kurtzman , 403 U.S. 602, 612 (1971). In essence, the Clause serves not as a closed door, but as a judicious chaperone; it permits a certain degree of impartial and friendly dialogue, but is swift to step in once that dialogue turns stigmatic or coercive. Tex. Monthly, 489 U.S. at 9; Trunk v. City of San Diego , 629 F.3d 1099, 1109 (9th Cir. 2011); see McCreary Cnty., 545 U.S. at 876 (“‘The constitutional obligation of “neutrality” . . . is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation.’ ” (quoting Sherbert, 374 U.S. at 422 (Harlan, J., dissenting), with approval)).

23For instance, one could not discuss Egyptian pyramids, Greek philoso-

phers, the Crusades, or the Mayflower if even incidental or colloquial ref-

erences to objects or individuals

of religious significance were

constitutionally taboo.

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[16] To determine whether the government has strayed too far from the straight course, we continue to apply the threefactor test set forth in Lemon. “Under Lemon, a government act is consistent with the Establishment Clause if it: (1) has a secular purpose; (2) has a principal or primary effect that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.” Vasquez, 487 F.3d at 1255 (citing Lemon, 403 U.S. at 612-13); accord McCreary Cnty., 545 U.S. at 859, 875. We have noted, however, that “[i]n recent years, the Supreme Court essentially has collapsed these last two prongs to ask ‘whether the challenged governmental practice has the effect of endorsing religion.’ ” Trunk, 629 F.3d at 1106 (quoting Access Fund v. U.S. Dep’t of Agric., 499 F.3d 1036, 1043 (9th Cir. 2007) (reviewing cases)). We also note that these factors are not to be applied in a vacuum. Pleasant Grove, 129 S. Ct. at 1136. Context is critical when evaluating the government’s conduct. Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 598 (1989) (“Under the Court’s holding in Lynch, the effect of a crèche display turns on its setting. Here, unlike in Lynch, nothing in the context of the display detracts from the crèche’s religious message.”); accord Trunk, 629 F.3d at 1102; Grove, 753 F.2d at 1534.

[17] Applying Lemon to the undisputed facts before us, we find no violation. First, Poway did not contravene the Clause when it ordered that Johnson’s banners be removed. “The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” Aguillard, 482 U.S. at 583-84 (“Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.”). For that reason, “[w]e have made it clear that ‘[g]overnmental actions taken to avoid potential Establishment Clause violations have a valid secular purpose under Lemon.’ ” Nurre v. Whitehead, 580 F.3d 1087, 1096 (9th Cir.

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2009) (quoting Vasquez, 487 F.3d at 1255), cert. denied 130 S. Ct. 1937 (2010); Peloza, 37 F.3d at 522.

[18] Moreover, action taken to “avoid conflict with the Establishment Clause” and maintain the very neutrality the Clause requires neither has a primary effect of advancing or inhibiting religion nor excessively entangles government with religion. Nurre, 580 F.3d at 1097-98; Vasquez, 487 F.3d at 1257-58; see Sch. Dist. of Abington Twp., Pa. v. Schempp , 374 U.S. 203, 225-26 (1963) (rejecting the contention that the absence of religion equates to “affirmatively opposing or showing hostility to religion”). Notably, as in Nurre and Vasquez, we do not, and need not, “adjudge the constitutionality of the” display in question in order to resolve the government’s ability to curtail that bit of its own speech. Vasquez, 487 F.3d at 1257; accord Nurre, 580 F.3d at 1097-98. It is enough to note that our precedent and that of our sister circuits demonstrate that the government’s ongoing display of the banners would raise at least the possibility of an Establishment Clause claim. 24 Cf. Tucker, 97 F.3d at 1213; Lee, 484 F.3d at 695; see Berry, 447 F.3d at 650-51. Poway was entitled to summary judgment on this aspect of Johnson’s claim.

24We would not be the first to recognize the difficult position government offices often find themselves in when trying to “run the gauntlet” between not being sued under the Establishment Clause for speaking in a manner some might perceive as unconstitutionally “pro-religious” and not being sued under the very same Clause for ceasing that speech—an action that, as this case demonstrates, may be equally offensive to others. See, e.g., Nurre, 580 F.3d at 1097; cf. Berry, 447 F.3d at 650. As our precedent demonstrates, government action—especially the curtailment of its own speech—taken on account of an honest interest in ensuring neutrality generally passes constitutional muster. Nurre, 580 F.3d at 1097-98; Vasquez, 487 F.3d at 1255-57. However, we also recognize that this is not always the case. See Widmar v. Vincent , 454 U.S. 263, 270-71 (1981) (applying Lemon to conclude that a university’s refusal to allow religious groups access to its facilities was not justified by its fear of an Establishment Clause issue because no tenable Clause issue would exist).

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In evaluating the constitutionality of the other displays, we think the court neglected its own admonishment that government speech “ ‘[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.’ ” Johnson, 2010 WL 768856, at *6 (alteration in original) (quoting Van Orden v. Perry, 545 U.S. 677, 690 (2005) (plurality opinion)). Admittedly, Gandhi, the Dalai Lama, and Malcolm X each have some religious connotation. However, as the district court noted, simple connotation does not run afoul of Lemon. Van Orden, 545 U.S. at 691-92. The same is true of the other posters. See Pleasant Grove , 129 S. Ct. at 1135 (describing John Lennon’s song “Imagine” in its discussion of speech that may have different meanings to different people); Grove, 753 F.2d at 1534 (discussing The Learning Tree). Each would be violative only if used to endorse or inhibit religion, and nothing in the record suggests such use here.

The Tibetan prayer flags are no different. Though some amici suggest that the flags are so recognizably religious that their use “as an instrument of religion cannot be gainsaid,” Schempp, 374 U.S. at 224 (discussing the Bible); see Stone, 449 U.S. at 41 (Bible and Ten Commandments), the record contains only evidence to the contrary. Lori Brickley, the science teacher who provided the flags, testified that she had no idea as to whether the flags had any particular or significant religious import, only that she had been told they represented “the basic elements” Tibetan people believe “necessary for their life.” She also noted that though one of the flags contains a small picture of Buddha not one of her students had ever identified the flags as religious.

Furthermore, Brickley testified that the flags were neither hung nor used for any religious purpose. She explained that she uses the flags as part of her discussion of fossils found on and near Mount Everest because the flags are authentic— bought in Nepal near Mount Everest—and are typically purchased by climbers to put “at the top of Mount Everest when

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they reach the peak.” She described how she typically shows a video of scientists taking cores samples on Everest and uses the flags to further stimulate the interest of her students. She said that the flags “represent climbing a mountain” and accomplishing “an amazing goal.”

Limited to these facts, we would not think that an objective observer could conclude that the flags were displayed for a religious purpose. McCreary Cnty., 545 U.S. at 862 (“The eyes that look to purpose belong to an ‘objective observer,’ one who takes account of the traditional external signs that show up in the . . . official act.” (citations and internal quotation marks omitted)); id. at 859 (noting the rarity of finding a religious purpose). Rather, the undisputed evidence supports a common-sense conclusion that the flags are intended to stimulate scientific interest, not religious pressure (or even permissible religious discussion). Id. at 863; cf. Stone, 449 U.S. at 42.

[19] Of course, because the speech is the government’s, Brickley’s purpose is not dispositive. Pleasant Grove, 129 S. Ct. at 1136 (“Contrary to respondent’s apparent belief, it frequently is not possible to identify a single ‘message’ that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor.”). Poway’s policy prohibiting sectarian and religious displays only further supports a conclusion of secular purpose. McCreary Cnty., 545 U.S. at 863 (“[T]he government’s action was held unconstitutional only because openly available data supported a commonsense conclusion that a religious objective permeated the government’s action.”).

In regard to “endorsement”— Lemon factors two and three —the evidence again suggests the absence of a violation. Though the flags may very well represent the Buddhist faith, their use by Poway has nothing to do with their religious con-

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

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notation. Instead, the evidence in this case demonstrates that the district uses the flags to stimulate interest in science and scientific discovery without any mention of religion. Thus, while the flags might themselves contain “religious content,” Van Orden, 545 U.S. at 690, the primary effect of the school’s use was entirely secular and fostered no entanglement with religion. Cf. Lemon, 403 U.S. at 612-13. Unlike in Allegheny, the “context of the display” here sufficiently “detracts” from any religious message the flags might otherwise convey. See 492 U.S. at 598. Any residual religious effect was therefore anodyne, not stigmatic. Trunk, 629 F.3d at 1109 (“By ‘endorsement,’ we are not concerned with all forms of government approval of religion—many of which are anodyne— but rather those acts that send the stigmatic message to nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members . . . .’ ” (alteration in original) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309-10 (2000)) (citation and internal quotation marks omitted)).

[20] Because neither Poway’s removal of Johnson’s banners nor its display of other materials violated the Clause, the district court should have granted summary judgment to Poway, not Johnson. We reverse the court’s judgment as to Johnson’s Establishment Clause claim and remand with instructions that it enter summary judgment in favor of Poway.

C

Finally, we reach Poway’s claim that the district court erred in granting Johnson summary judgment on his claim that the district court denied him equal protection of the law when it ordered that he remove his banners but continued to permit the display of other posters and materials that Johnson believes exhibit sectarian viewpoints. We again agree with Poway that the court erred.

17358

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

Our resolution of Johnson’s freedom of speech and Establishment Clause claims leaves little room for discussion. All the speech of which Johnson complains belongs to the government, and the government has the right to “speak for itself.” Pleasant Grove, 129 S. Ct. at 1131 (citation and internal quotation marks omitted). When it does, “it is entitled to say what it wishes,” Rosenberger, 515 U.S. at 833, “and to select the views that it wants to express.” Pleasant Grove, 129 S. Ct. at 1131 (citing Nat’l Endowment for Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring) (“It is the very business of government to favor and disfavor points of view . . . .”)).

[21] Because Johnson had no individual right to speak for the government, he could not have suffered an equal protection violation. Downs, 228 F.3d at 1017 (“Because we determine that Downs has no First Amendment right to speak for the government, his equal protection claim based upon the deprivation of this asserted right also fails to withstand summary judgment.”); see Ceballos, 547 U.S. at 421-22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”).

[22] We reverse and remand to the district court with instructions to enter judgment in favor of Poway on this issue.

IV

In conclusion, we agree with the district court that no genuine issue of material fact remains in the present case. However, the district court made a critical error when it determined that Poway had created a limited public forum for teacher speech and evaluated Poway’s actions under a traditional forum-based analysis rather than the controlling Pickering-based inquiry. Applying the correct legal principles

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

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to the undisputed facts before us, we conclude that Poway was entitled to judgment as a matter of law on each of the claims raised by Johnson.

We thus reverse and remand with instructions that the district court vacate its grant of injunctive and declaratory relief, as well as its award of damages, and enter summary judgment in favor of Poway and its officials on all claims. Johnson shall bear all costs. Fed. R. App. P. 39(a)(3).

REVERSED and REMANDED with instructions.

17360

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT APPENDIX

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

17361

17362

JOHNSON v. P OWAY UNIFIED SCHOOL DISTRICT

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••

 
 Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 1 of 9
APPEAL, CLOSED
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:07−cv−00783−BEN −WVG

Johnson v. Poway Unified School District et al Assigned to: Judge Roger T. Benitez Referred to: Magistrate Judge William V. Gallo Case in other court: USCA, 10−55445 Cause: 42:1983 Civil Rights Act
Plaintiff
Bradley Johnson

Date Filed: 04/30/2007 Date Terminated: 02/26/2010 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Charles Salvatore LiMandri Law Offices of Charles S LiMandri P O Box 9120 Rancho Santa Fe, CA 92067−4120 (858)759−9930 Fax: (858)759−9938 Email: climandri@limandri.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert J Muise Thomas More Law Center 24 Frank Lloyd Wright Drive Ann Arbor, MI 48105 (734)827−2001 Email: rmuise@thomasmore.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Poway Unified School District
Defendant Jeff Mangum individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District

represented by Jack M Sleeth , Jr Stutz Artiano Shinoff and Holtz 2488 Historic Decatur Road Suite 200 San Diego, CA 92106 (619)232−3122 Fax: (619)232−3264 Email: jsleeth@stutzartiano.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Vincent Carelli , IV Stutz Artiano Shinoff and Holtz 2488 Historic Decatur Road Suite 200 San Diego, CA 92106 (619)232−3122 Fax: (619)232−3264 Email: pcarelli@stutzartiano.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jack M Sleeth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 2 of 9

Defendant Linda Vanderveen individually and in her official capacity as a Member of the Board of Education for the Poway Unified School District
Defendant Andrew Patapow individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District
Defendant Todd Gutschow individually and in his official capacity as a Member of the Board of Education for the Poway Unified School District
Defendant Penny Ranftle individually and in her official capacity as a Member of the Board of Education for the Poway Unified School District
Defendant Dr Donald A Phillips individually and in his official capacity as Superintendent of the Poway Unified School District
Defendant

Paul Vincent Carelli , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jack M Sleeth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Vincent Carelli , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jack M Sleeth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Vincent Carelli , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jack M Sleeth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Vincent Carelli , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jack M Sleeth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Vincent Carelli , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jack M Sleeth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Vincent Carelli , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 3 of 9

Dawn Kastner individually and in her official capacity as Principal, Westview High School, Poway Unified School District

represented by Jack M Sleeth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Vincent Carelli , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
William R Chiment individually and in his official capacity as Assistant Superintendent of the Poway Unified School District

represented by Jack M Sleeth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Vincent Carelli , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/30/2007
05/01/2007 05/01/2007 07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/02/2007

# Docket Text
1 COMPLAINT against Donald A Phillips, Dawn Kastner, William R Chiment, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle (Filing fee $ 350, Receipt #137674) , filed by Bradley Johnson.(pdc)(bar). Modified on 5/2/2007 to add defendant Chiment(pdc). (Entered: 05/01/2007)
2 Summons Issued (joeh, ) (Entered: 05/03/2007)
3 PRO HAC VICE APPOINTED: Charles Salvatore LiMandri, Robert J Muise appearing for Plaintiff Bradley Johnson (joeh, ) (Entered: 05/03/2007)
4 WAIVER OF SERVICE Returned Executed by Bradley Johnson. Poway Unified School District waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)
5 WAIVER OF SERVICE Returned Executed by Bradley Johnson. Jeff Mangum waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)
6 WAIVER OF SERVICE Returned Executed by Bradley Johnson. Linda Vanderveen waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)
7 WAIVER OF SERVICE Returned Executed by Bradley Johnson. Andrew Patapow waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)
8 WAIVER OF SERVICE Returned Executed by Bradley Johnson. Todd Gutschow waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)
9 WAIVER OF SERVICE Returned Executed by Bradley Johnson. Penny Ranftle waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)
10 WAIVER OF SERVICE Returned Executed by Bradley Johnson. Donald A Phillips waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)
11 WAIVER OF SERVICE Returned Executed by Bradley Johnson. William R Chiment waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)

Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 4 of 9

07/02/2007 07/26/2007 07/27/2007 08/21/2007
09/21/2007 09/21/2007 10/05/2007
10/05/2007
10/05/2007
11/09/2007 11/15/2007 11/15/2007 11/15/2007

12 WAIVER OF SERVICE Returned Executed by Bradley Johnson. Dawn Kastner waiver sent on 6/1/2007, answer due 7/31/2007. (Muise, Robert) (Entered: 07/02/2007)
13 Joint MOTION for Extension of Time to File Answer or Otherwise Respond to Complaint by Donald A Phillips, Dawn Kastner, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Penny Ranftle. (Attachments: # 1 Proof of Service)(Carelli, Paul) (Entered: 07/26/2007)
14 ORDER, the Court grants 13 Joint MOTION and extends time for Dft's to answer or otherwise respond to complaint to 08/21/07. Signed by Judge Roger T. Benitez on 07/27/07. (joeh) Modified on 8/23/2007 edit text(joeh, ). (Entered: 07/27/2007)
15 MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] by Donald A Phillips, Dawn Kastner, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Penny Ranftle. (Attachments: # 1 Memo of Points and Authorities Points &Authorities in Support of Defendants' Motion to Dismiss Complaint# 2 Request for Judicial Notice Defendants' request for Judicial Notice of Documents in Support Motion to Dismiss Complaint# 3 Proof of Service)(Carelli, Paul) (Entered: 08/21/2007)
16 NOTICE by Bradley Johnson of Filing First Amended Complaint (Muise, Robert)(joeh, ). (Entered: 09/21/2007)
17 AMENDED COMPLAINT against all defendants, filed by Bradley Johnson. (Attachments: # 1 Proof of Service)(Muise, Robert)(joeh, ). (Entered: 09/21/2007)
18 MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] by Donald A Phillips, Dawn Kastner, William R Chiment, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle. (Attachments: # 1 Memo of Points and Authorities Points and Authorities in Support of Defendants' Motion to Dismiss First Amended Complaint# 2 Request for Judicial Notice Defendants' Request for Judicial Notice of Documents in Support of Motion to Dismiss First Amended Complaint# 3 Proof of Service)(Carelli, Paul) (mkz). (Entered: 10/05/2007)
19 NOTICE OF WITHDRAWAL OF DOCUMENT by Donald A Phillips, Dawn Kastner, William R Chiment, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle Defendants' Ex Parte Application to Withdraw Motion to Dismiss (Docket #15) Scheduled for October 15, 2007. (Attachments: # 1 Proof of Service)(Carelli, Paul) Modified on 10/9/2007, atty contacted, motion filed, see doc. 20 (mkz). (Entered: 10/05/2007)
20 Ex Parte MOTION to Withdraw 15 MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)], filed to reflect doc. 19 , by Donald A Phillips, Dawn Kastner, William R Chiment, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle. (mkz)(mam). (Entered: 10/09/2007)
21 RESPONSE in Opposition re 18 MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] filed by Bradley Johnson. (Attachments: # 1 Plaintiff's Opposition to Request for Judicial Notice# 2 Proof of Service)(Muise, Robert)(joeh, ). (Entered: 11/09/2007)
22 MINUTE ORDER issued by the Honorable Roger T. Benitez granting [20−1] Motion to Withdraw Motion to Dismiss {15−1]; withdrawing [15−1] Motion to Dismiss. (gxr) (Entered: 11/15/2007)
23 MINUTE ORDER issued by the Honorable Roger T. Benitez submitting [18−1] Motion to Dismiss. Motion Hearing date of 11/26/2007 10:30AM is hereby vacated. (gxr) (Entered: 11/15/2007)
24 REPLY re 18 MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] MOTION to Dismiss Complaint [FRCP 12(b)(1), 12(b)(6); 12(f)] Defendants' Reply to Plaintiff's Opposition to Motion to Dismiss First Amended Complaint filed by

Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 5 of 9

09/04/2008 09/19/2008 09/22/2008 10/14/2008 10/30/2008 12/19/2008
12/19/2008 12/24/2008
02/26/2009 03/27/2009
04/02/2009 04/16/2009 06/01/2009 06/01/2009

Donald A Phillips, Dawn Kastner, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Penny Ranftle. (Attachments: # 1 Proof of Service)(Carelli, Paul) (Entered: 11/15/2007)
25 ORDER denying 18 Motion to Dismiss Complaint. Signed by Judge Roger T. Benitez on 9/4/08. (asw) (kaj). (Entered: 09/05/2008)
26 DEFENDANTS' ANSWER to 17 Amended Complaint by Donald A Phillips, Dawn Kastner, William R Chiment, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle. (Attachments: # 1 Proof of Service)(Carelli, Paul) (asw). (Entered: 09/19/2008)
27 Notice and ORDER for Early Neutral Evaluation Conference: An Early Neutral Evaluation will be held on 12/9/08, at 2:00 PM before Magistrate Judge Leo S. Papas. Signed by Magistrate Judge Leo S. Papas on 9/22/08. (asw) (av1). (Entered: 09/22/2008)
28 Minute ORDER: The Early Neutral Evaluation Conference on 12/9/08 is vacated and reset for 12/15/08 at 2:00 PM. Signed by Magistrate Judge Leo S. Papas on 10/14/08. (asw) (av1). (Entered: 10/14/2008)
29 Minute ORDER: The Early Neutral Evaluation Conference on 12/15/08 is vacated and reset for 12/19/08 at 10:00 AM. Signed by Magistrate Judge Leo S. Papas on 10/30/08. (asw) (kaj). (Entered: 10/30/2008)
30 ORDER Following ENE. ENE Conference was held on 12/19/2008. Rule 26(f) Conference shall be completed by 1/12/2009. Discovery Plan shall be lodged w/ Chambers by 1/22/2009. Case Management Conference set for 1/27/2009 08:30 AM in Courtroom G before Magistrate Judge Leo S. Papas. Signed by Magistrate Judge Leo S. Papas on 12/19/2008. (jah) (Entered: 12/19/2008)
31 Minute Entry for proceedings held before Magistrate Judge Leo S. Papas:Early Neutral Evaluation Conference held on 12/19/2008(jmy) (Entered: 12/19/2008)
32 SCHEDULING ORDER:Case Management Conference set for 1/27/09 at 8:30am is vacated. Mandatory Settlement Conference set for 4/28/2009 02:00 PM in Courtroom G before Magistrate Judge Leo S. Papas. Final Pretrial Conference set for 11/9/2009 10:30 AM in Courtroom 03 before Judge Roger T. Benitez. Memorandum of Contentions of Fact and Law due by 10/19/2009. Proposed Pretrial Order due by 11/2/2009. Signed by Magistrate Judge Leo S. Papas on 12/24/08. (kaj) (Entered: 12/24/2008)
33 Minute ORDER. The date and time of the Settlement Conference on April 28, 2009 at 2:00 PM is vacated and reset for May 6, 2009 at 9:00 AM. Signed by Magistrate Judge Leo S. Papas on 2/26/09. (asw) (kaj). (Entered: 02/26/2009)
34 Minute Order for proceedings held before Magistrate Judge Leo S. Papas:Discovery Conference held on 3/26/2009. Defendants counsel shall arrange for Plaintiffs counsel to have access to three high schools for site inspections. Counsel shall submit an Order regarding the protocol of the site inspections and the details thereof. (Plaintiff Attorney Robert Muse).(Defendant Attorney Paul Carelli). Signed by Magistrate Judge Leo S. Papas on 3/26/09.(asw) (kaj). (Entered: 03/27/2009)
35 ORDER Regarding Site Inspection. Signed by Magistrate Judge Leo S. Papas on 4/2/09. (asw) (kaj). (Entered: 04/02/2009)
36 Minute ORDER: The date and time of the Settlement Conference on May 6, 2009 at9:00 AM is vacated and reset for June 1, 2009 at 2:00 PM. Signed by Magistrate Judge Leo S. Papas on 4/16/09. (asw) (Entered: 04/16/2009)
37 Minute Entry for proceedings held before Magistrate Judge Leo S. Papas: Settlement Conference held on 6/1/2009 (Plaintiff Attorney Robert Muise). (Defendant Attorney Jack Sleeth). (asw) (jrl). (Entered: 06/02/2009)
38 Amended Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings: The Case Management Conference Order dated 12/24/08 is hereby amended. Final Pretrial Conference set for 12/7/2009 10:30 AM before

Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 6 of 9

07/01/2009
07/09/2009 07/29/2009 07/29/2009
08/14/2009 08/14/2009 08/14/2009 08/14/2009 08/14/2009 08/14/2009 08/14/2009

Judge Roger T. Benitez. Memorandum of Contentions of Fact and Law due by 11/16/2009. Proposed Pretrial Order due by 11/30/2009. Signed by Magistrate Judge Leo S. Papas on 6/1/09. (asw) (jrl). (Entered: 06/02/2009)
39 Transfer ORDER: IT IS HEREBY ORDERED that the following case is transferred from the calendar of the Honorable Leo S. Papas, to the calendar of the Honorable Nita L. Stormes for all further proceedings. All conference or hearing dates set before Magistrate Judge Papas are vacated and will be rescheduled before Magistrate Judge Stormes. Any dates set before any district judge remain unchanged. The new case number is 07cv783−BEN (NLS). Signed by Magistrate Judge Leo S. Papas on 7/1/09. (asw) (jrl). (Entered: 07/02/2009)
40 ORDER Setting Telephonic Status Conference: Status Conference set for 7/29/2009 at 10:30 AM before Magistrate Judge Nita L. Stormes. Signed by Magistrate Judge Nita L. Stormes on 7/9/09. (asw) (jrl). (Entered: 07/09/2009)
41 Minute Entry for proceedings held before Magistrate Judge Nita L. Stormes: Status Conference held on 7/29/2009. (Plaintiff Attorney Robert Miuse). (Defendant Attorney Paul Carelli). Order to issue. (ecp) (Entered: 07/29/2009)
42 ORDER Setting Briefing Dates for Cross Summary Judgment Motions and Resetting Pretrial Dates: The court held a status conference on 7/29/09. The parties shall file any cross motions for summary judgment by 8/14/09, Oppositions to cross motions by 9/28/09 and replies by 10/19/09. The hearing for the cross motions for summary judgment shall be SET on the calendar of Judge Benitez for 11/16/09 at 10:30 AM. The final pretrial conference currently set for 12/7/09 is VACATED and RESET for 4/5/2010 10:30 AM before Judge Roger T. Benitez. Memorandum of Contentions of Fact and Law due by 3/15/2010. Proposed Pretrial Order due by 3/29/2010. All non−conflicting provisions of the courts Amended Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings dated 6/1/09 shall remain in full force and effect. Signed by Magistrate Judge Nita L. Stormes on 7/29/09. (asw)(jrl). (Entered: 07/29/2009)
43 MOTION for Summary Judgment by Bradley Johnson. (Attachments: # 1 Memo of Points and Authorities, # 2 Statement of Facts, # 3 Proof of Service)(Muise, Robert)(asw). (Entered: 08/14/2009)
44 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A part 1), # 2 Exhibit 1 (Ex A part 2), # 3 Exhibit 1 (Ex A part 3), # 4 Exhibit 1 (Ex A part 4), # 5 Exhibit 1 (Ex A part 5))(Muise, Robert)(asw). (Entered: 08/14/2009)
45 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A), # 2 Exhibit 1 (Ex A), # 3 Exhibit 1 (Ex A), # 4 Exhibit 1 (Ex A))(Muise, Robert)(asw). (Entered: 08/14/2009)
46 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A), # 2 Exhibit 1 (Ex A), # 3 Exhibit 1 (Ex A), # 4 Exhibit 1 (Ex A))(Muise, Robert)(asw). (Entered: 08/14/2009)
47 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A), # 2 Exhibit 1 (Ex A), # 3 Exhibit 1 (Ex A), # 4 Exhibit 1 (Ex A))(Muise, Robert)(asw). (Entered: 08/14/2009)
48 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A), # 2 Exhibit 1 (Ex A), # 3 Exhibit 1 (Ex A), # 4 Exhibit 1 (Ex A))(Muise, Robert)(asw). (Entered: 08/14/2009)
49 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A), # 2 Exhibit 1 (Ex A), # 3 Exhibit 1 (Ex A), # 4 Exhibit 1 (Ex A))(Muise, Robert)(asw). (Entered: 08/14/2009)

Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 7 of 9

08/14/2009 08/14/2009 08/14/2009 08/14/2009 08/14/2009 08/14/2009
09/28/2009 09/28/2009
10/19/2009 10/19/2009 10/19/2009 10/19/2009

50 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A), # 2 Exhibit 1 (Ex A), # 3 Exhibit 1 (Ex A), # 4 Exhibit 1 (Ex A))(Muise, Robert) (asw). (Entered: 08/14/2009)
51 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A), # 2 Exhibit 1 (Ex A), # 3 Exhibit 1 (Ex A), # 4 Exhibit 1 (Ex A))(Muise, Robert)(asw). (Entered: 08/14/2009)
52 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex A), # 2 Exhibit 1 (Ex B), # 3 Exhibit 1 (Ex B), # 4 Exhibit 1 (Ex B), # 5 Exhibit 1 (Ex B))(Muise, Robert)(asw). (Entered: 08/14/2009)
53 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 (Ex C), # 2 Exhibit 1 (Ex C))(Muise, Robert)(asw). (Entered: 08/14/2009)
54 NOTICE Regarding Exhibit Attachment by Bradley Johnson re 43 MOTION for Summary Judgment (Attachments: # 1 Exhibit 3 (Deposition Excerpts for William Chiment), # 2 Exhibit 4 (Deposition Excerpts for Dawn Kastner), # 3 Exhibit 5 (Deposition Exceprts for Lori Brickley))(Muise, Robert)(asw). (Entered: 08/14/2009)
55 MOTION for Summary Judgment by Donald A Phillips, Dawn Kastner, William R Chiment, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle. (Attachments: # 1 Memo of Points and Authorities Points and Aughorities in Support of Defendants' Motion for Summary Judgment, # 2 Statement of Facts Separate Statement of Undisputed Material Facts, # 3 Exhibit Defendants' Exhibit List, # 4Exhibits A−F, # 5 Exhibit G−L, # 6 Declaration of Steven Salvati, # 7 Declaration of Tina McDowell, # 8 Declaration of Paul V. Carelli IV in Support of Motion for Summary Judgment, # 9 Proof of Service Proof of Service)(Carelli, Paul)(asw). (Entered: 08/14/2009)
56 RESPONSE in Opposition re 55 MOTION for Summary Judgment filed by Bradley Johnson. (Attachments: # 1 Statement of Facts Plaintiff's Response to Defendants' Statement of Undisputed Material Facts, # 2 Exhibit − 1 Declaration of Bradley Johnson (with Table of Contents), # 3 Exhibit −2 Deposition Excerpts of Lori Brickley, # 4 Certificate of Service)(Muise, Robert)(asw). (Entered: 09/28/2009)
57 RESPONSE in Opposition re 43 MOTION for Summary Judgment filed by Donald A Phillips, Dawn Kastner, William R Chiment, Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle. (Attachments: # 1 Exhibit Supplemental Exhibit List, # 2 Exhibit Supplemental Exhibits M−O, # 3 Declaration Paul V. Carelli IV, # 4 Statement of Facts Responses and Objections, # 5 Objections to Evidence, # 6 Proof of Service)(Carelli, Paul)(asw). (Entered: 09/28/2009)
58 REPLY to Response to Motion re 43 MOTION for Summary Judgment filed by Bradley Johnson. (Attachments: # 1 Proof of Service)(Muise, Robert)(asw). (Entered: 10/19/2009)
59 TRANSFER ORDER: Magistrate Judge Nita L. Stormes is no longer assigned to the case and Magistrate Judge William V. Gallo is now assigned to the case. The new case number is 07cv0783−BEN(WVG). All hearing dates set before Magistrate Judge Nita L. Stormes, if any, are vacated and will be rescheduled before Magistrate Judge William V. Gallo. Signed by Magistrate Judge Nita L. Stormes on 10/16/09.(kaj) (Entered: 10/19/2009)
60 REPLY to Response to Motion re 55 MOTION for Summary Judgment filed by William R Chiment, Todd Gutschow, Dawn Kastner, Jeff Mangum, Andrew Patapow, Donald A Phillips, Poway Unified School District, Penny Ranftle, Linda Vanderveen. (Sleeth, Jack)(asw). (Entered: 10/19/2009)
61 NOTICE of Appearance by Jack M Sleeth, Jr on behalf of William R Chiment, Todd Gutschow, Dawn Kastner, Jeff Mangum, Andrew Patapow, Donald A

Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 8 of 9

11/16/2009
12/16/2009 01/05/2010 01/06/2010 02/25/2010 02/26/2010
03/03/2010 03/03/2010 03/05/2010

Phillips, Poway Unified School District, Penny Ranftle, Linda Vanderveen (Sleeth, Jack)(asw). (Entered: 10/19/2009)
62 Minute Entry for proceedings held before Judge Roger T. Benitez: Motion Hearing held on 11/16/2009 re: [43−1] MOTION for Summary Judgment filed by Bradley Johnson, [55−1] MOTION for Summary Judgment filed by Andrew Patapow, William R Chiment, Donald A Phillips, Jeff Mangum, Poway Unified School District, Linda Vanderveen, Todd Gutschow, Penny Ranftle, Dawn Kastner. Motions taken under submission. Court to issue Order. The Court also refers any further settlement conferences to Magistrate Judge Anthony J. Battaglia. Counsel to contact Magistrate Judge Battaglia's chambers to schedule any further settlement conferences.(Court Reporter Deborah O'Connell). (Plaintiff Attorney Robert J. Muise). (Defendant Attorney Jack M. Sleeth, Jr., Paul V. Carelli, IV). (gxr) (Entered: 11/17/2009)
63 ORDER Setting Settlement Conference: Settlement Conference set for 1/5/2010 10:00 AM before Magistrate Judge Anthony J. Battaglia. Signed by Magistrate Judge Anthony J. Battaglia on 12/16/09.(asw) (jrl). (Entered: 12/16/2009)
65 Minute Entry for proceedings held before Magistrate Judge Anthony J. Battaglia: Settlement Conference held on 1/5/2010. Order to follow.(Tape #(n/a)). (ymm) (Entered: 01/06/2010)
64 ORDER Following Settlement Conference: On 1/5/10 the court convened a Settlement Conference. Settlement could not be reached in the case. All dates pending before Judge Benitez are herewith confirmed. Signed by Magistrate Judge Anthony J. Battaglia on 1/6/10.(asw) (jrl). (Entered: 01/06/2010)
66 ORDER granting Plaintiff's 43 Motion for Summary Judgment; denying Defendants' 55 Motion for Summary Judgment: Plaintiff is entitled to a declaration that Defendants have violated Plaintiffs individual rights, entitled to nominal damages in the amount of $10 per individual Defendant, and an award of reasonable attorneys fees and costs. Defendants are ordered to permit Johnson to immediately re−display, in his assigned classroom, the two banners. Signed by Judge Roger T. Benitez on 2/25/10. (asw) (jcj). (Entered: 02/26/2010)
67 CLERK'S JUDGMENT IT IS SO ORDERED AND ADJUDGED that judgment is in favor of Bradley Johnson against Poway Unified School District, Andrew Patapow, Dawn Kastner, Donald A Phillips, Jeff Mangum, Linda Vanderveen, Penny Ranftle, Todd Gutschow, William R Chiment. Plaintiff's Motion for Summary Judgment granted; Defendants' Motion for Summary Judgment denied: Plaintiff is entitled to a declaration that Defendants have violated Plaintiffs individual rights, entitled to nominal damages in the amount of $10 per individual Defendant, and an award of reasonable attorneys fees and costs. Defendants are ordered to permit Johnson to immediately re−display, in his assigned classroom, the two banners.(asw) (Entered: 02/26/2010)
68 BILL OF COSTS submitted by Plaintiff Bradley Johnson in the amount of $ 8,279.86. Hearing set for 3/23/2010 at 10:00AM. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A−−Fees of the Clerk, # 3 Exhibit B−−Fees of the Court Reporter, # 4 Exhibit C−−Fees for Printing Exhibits, # 5 Proof of Service)(Muise, Robert)(asw). (Entered: 03/03/2010)
69 NOTICE: A Bill of Costs 68 was filed by plaintiff Bradley Johnson scheduling a hearing for March 23, 2010 at 10:00 am. Any opposition or responsive pleading to this Bill of Costs is to be filed by close of business on Friday, March 19, 2010. All parties requesting to appear telephonically for this hearing are directed to join on a conference call then contact N. Prewitt (619) 557−6415 at the time of the hearing. (nsp) (Entered: 03/03/2010)
70 MOTION for Attorney Fees , Costs, and Expenses by Bradley Johnson. (Attachments: # 1 Exhibit 1−−Declaration of Attorney Muise, # 2 Exhibit A−−Fees, Costs, and Expenses Documentation (part 1 of 2), # 3 Exhibit A−−Fees, Costs, and Expenses Documentation (part 2 of 2), # 4 Exhibit 2−−Declaration of Attorney LiMandri, # 5 Proof of Service)(Muise, Robert)(asw). (Entered: 03/05/2010)

Case: 3:07-cv-00783-BEN -WVG As of: 09/20/2011 04:35 PM PDT 9 of 9

03/18/2010 03/22/2010 03/24/2010 03/25/2010 03/25/2010 04/26/2010 04/29/2010 05/05/2010 05/13/2010
08/03/2010

71 NOTICE of Hearing on [70−1] MOTION for Attorney Fees , Costs, and Expenses: Motion Hearing set for 5/10/2010 10:30 AM in Courtroom 03 before Judge Roger T. Benitez. (gxr) (Entered: 03/18/2010)
72 Costs Taxed in amount of $8,099.86 against defendants (nsp) (Entered: 03/22/2010)
73 NOTICE OF APPEAL t/w Representation Statement as to 67 Clerk's Judgment, by Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle, Donald A Phillips, William R Chiment, Dawn Kastner. (Filing Fee: Paid, Receipt No. CAS011491). (Notice of Appeal electronically transmitted to US Court of Appeals.) (akr) (Entered: 03/25/2010)
74 USCA Case Number 10−55445 for 73 Notice of Appeal, filed by Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle, Donald A Phillips, William R Chiment, Dawn Kastner. (akr) (Entered: 03/25/2010)
75 USCA Time Schedule Order as to 73 Notice of Appeal. (NOTICE TO PARTIES of deadlines regarding appellate transcripts: Appellant shall file transcript designation and ordering form with the US District Court, provide a copy of the form to the court reporter, and make payment arrangements with the court reporter on or by 4/23/2010 (see Ninth Circuit Rule 10−3.1); Due date for filing of transcripts in US District Court is 5/24/2010.) (cc: Court Reporter). (akr) (Entered: 03/25/2010)
76 RESPONSE in Opposition re 70 MOTION for Attorney Fees , Costs, and Expenses filed by William R Chiment, Todd Gutschow, Dawn Kastner, Jeff Mangum, Andrew Patapow, Donald A Phillips, Poway Unified School District, Penny Ranftle, Linda Vanderveen. (Attachments: # 1 Declaration of Paul V. Carelli IV in Support, # 2 Exhibit A to Declaration of Paul V. Carelli IV, # 3 Proof of Service)(Carelli, Paul) (knh). (Entered: 04/26/2010)
77 REPLY to Response to Motion re 70 MOTION for Attorney Fees , Costs, and Expenses filed by Bradley Johnson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−Supplemental Declaration of Attorney Muise, # 3 Proof of Service)(Muise, Robert) (knh). (Entered: 04/29/2010)
78 Minute Order issued by the Honorable Roger T. Benitez: Submitting 70 MOTION for Attorney Fees , Costs, and Expenses. Court to issue Order. Motion Hearing date of 5/10/2010 10:30AM is hereby vacated. (gxr) (Entered: 05/05/2010)
79 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Motion Hearing) held on 11/16/2009, before Judge Roger T. Benitez. Court Reporter/Transcriber: Deborah M. O'Connell. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 6/3/2010. Redacted Transcript Deadline set for 6/14/2010. Release of Transcript Restriction set for 8/11/2010. (akr) (Entered: 05/14/2010)
80 ORDER Staying 70 MOTION for Attorney Fees , Costs, and Expenses filed by Bradley Johnson: The motion is stayed pending appeal of the underlying decision in Ninth Circuit Case No. 10−55445. Signed by Judge Roger T. Benitez on 8/2/10.(lmt) (mam). (Entered: 08/03/2010)

 
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View U.S. District Court Opinion
View Original Source Image of This Document
BRADLEY JOHNSON, Plaintiff, v. POWAY UNIFIED SCHOOL DISTRICT; JEFF MANGUM, LINDA VANDERVEEN, ANDREW PATAPOW, TODD GUTSCHOW, and PENNY RANFTLE, all individually and in his or her official capacity as a Member
of the Board of Education for the Poway Unified School District; DR. DONALD A. PHILLIPS, individually and in his official capacity as Superintendent of the Poway Unified School District; WILLIAM R. CHIMENT, individually and in his official capacity as Assistant Superintendent of the Poway Unified School District; and DAWN KASTNER, individually and in her official capacity as Principal, Westview High School,
Poway Unified School District, Defendants.
CASE NO. 07cv783 BEN (NLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75418
October 19, 2009
Motion for Summary Judgment
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s)
COUNSEL: [*1] Charles S. LiMandri, Esq. (California State Bar No. 110841), LAW OFFICES OF CHARLES S. LiMANDRI WEST COAST REGIONAL OFFICE OF THE THOMAS MORE LAW CENTER, Rancho Santa Fe, California, Robert J. Muise, Esq. * (Michigan State Bar No. P62849), THOMAS MORE LAW CENTER, Ann Arbor, Michigan, * Admitted pro hac vice, Counsel for Plaintiff.
JUDGES: Hon. Roger T. Benitez
TITLE: Plaintiff's Reply Memorandum In Support Of Motion For Summary Judgment
TEXT: Defendants' opposition invites this court to ignore the undisputed material facts and controlling law, to assume that certain inconvenient facts do not exist, and to accept their facile (and patently erroneous) conclusion that their undifferentiated fear of an Establishment Clause violation permits them to engage in viewpoint discrimination. By silencing Plaintiff's personal, non-curricular patriotic expression on account of Plaintiff's viewpoint, while approving the prominent display of personal, non-curricular Buddhist religious items, among other teacher displays, Defendants have violated clearly established constitutional rights.

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In their opposition, Defendants complain that "[Plaintiff] misses the bigger picture by setting the parameters [*2] too broadly." (Defs.' Opp'n at 4). To the contrary, it is Defendants who miss the picture altogether. Accepting Defendants' arguments removes all "parameters"-including those that are required by the United States and California Constitutions-thereby effectively negating the constitutional rights of Plaintiff. Indeed, it is Defendants who have created the forum for the personal, non-curricular speech at issue here. If Defendants want to close the forum, they could. The fact that they refuse to do so and instead seek to retain the power to permit the expression of viewpoints they favor and censor those they do not is disturbing-and it is unconstitutional. n1 In the final analysis, Defendants are inviting this court to rewrite First Amendment law to allow government officials to discriminate based on a speaker's view. This court should decline the invitation.

n1 Defendant Chiment testified on behalf of the School District as follows: "You could make the argument that if the District were to say no one can put up anything up (sic) unless it's absolutely curriculum related and these [Plaintiff's banners] were up, then they would violate it. But our District has chosen - and that would be permissible, I think, for a School District to do so, but our District has chosen not to do that, to allow noncurricular and personal as well as curricular. And so when that decision's been made, I think that these at least meet that test. The test they don't meet is the advocacy of a particular sectarian viewpoint." (Chiment Dep. at 128-29 at Ex. 3) (emphasis added).
[*3]
ARGUMENT
I. Defendants' Viewpoint-Based Restriction Is Unconstitutional.
A. Plaintiff's Banners Constitute Personal, Non-Curricular Speech.
There is no dispute that Plaintiff's banners constitute speech. And Defendants do not argue that Plaintiff's banners are "government speech," nor could they in light of the undisputed facts. n2 Defendants admit that Plaintiff's banners constitute "non-curricular personal" speech. n3 They admit that "Plaintiff's banners do not belong to the School District; they are his personal items." (Defs.' Resp. to Stmt. of Facts at P 23). And they admit that Plaintiff's banners "were not used to teach math[,] and they were not used as part of any of [Plaintiff's] extracurricular activities." n4 (Defs.' Resp. to Stmt. of Facts at P 26).

n2 At most, Defendants claim that "the banners contained speech made by [Plaintiff] which carries the imprimatur of the School." (Defs.' Resp. to Stmt. of Facts at P 62). This assertion, however, is flatly contradicted by their testimony. (See Pl.'s Stmt. of Facts at PP 55, 56, 62). Nonetheless, even accepting this claim, Defendants' viewpoint-based restriction cannot withstand constitutional scrutiny. See Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1010 (9th Cir. 2000) (stating that the Ninth Circuit has "incorporated 'viewpoint neutrality' analysis into nonpublic forum, school-sponsored speech cases") (citing Planned Parenthood v. Clark County Sch. Dist., 941 F.2d 817, 828 n. 19, 829-30 (9th Cir. 1991)). [*4]
n3 Defendants admit the following: "The [Tibetan prayer] flags, like Johnson's banners, are non-curricular personal items in nature." (Defs.' P & A in Supp. of Mot. for Summ. J. at 19) (Doc. No. 55) (emphasis added). n4 Defendant Chiment testified on behalf of the School District as follows:

2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75418, *4

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Q: [D]o you have any information that [Plaintiff] actually used those in teaching his math class, those banners? A: I have no information that he used those banners in the teaching of his math class. * * * Q: Are you aware of those banner being part of any aspect of the math curriculum as far as you understand the math curriculum in the high schools at Poway School District? A: I do not believe they are. * * * Q: * * * Prior to . . . directing [Plaintiff] to remove those banners, did you have any information that students were studying these banners or their slogans as part of [Plaintiff's] math classes? A: No.
Q: And, again, prior to . . . directing [Plaintiff] to remove those banners, did you have any information that the students were discussing any aspects of those slogans depicted in [Plaintiff's] banners during his math classes? A: No. Q: [Prior to directing Plaintiff to remove his banners], did you have any information that those banners were being used in any way for any extracurricular activities that [Plaintiff] might be involved with? A: No. Q: So was it your understanding in January of 2007 that those banners weren't part of the math curriculum for [Plaintiff]? * * * A: It was my understanding that these were not part of the math curriculum. (Chiment Dep. at 93-95 at Ex. 3) (emphasis added).
[*5]
Consequently, the restriction on Plaintiff's personal speech plainly implicates Plaintiff's constitutional rights. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) ("First Amendment rights . . . are available to teachers and students."); Morse v. Frederick, 551 U.S. 393, 403 (2007) ("In Tinker, this Court made clear that 'First Amendment rights applied in light of the special characteristics of the school environment, are available to teachers and students.'"); Perry Educ. Ass'n v. Perry Local Educators, 460 U.S. 37, 44 (1983) ("The First Amendment's guarantee of free speech applies to teacher's mailboxes as surely as it does elsewhere within the school . . . . "); see also id. at 44 ("[C]onstitutional interests are implicated by denying [appellee] use of the interschool mail system.").
B. A Forum Analysis Applies Because Defendants Created the Forum at Issue.
The overwhelming evidence demonstrates: (1) that Defendants created a forum for the personal, non-curricular speech of its teachers; (2) that this policy or practice has been in place for more than 30 years; (3) that the [*6] district's teachers express a wide array of personal, non-curricular messages in their classrooms as a result of this policy or practice, including messages addressing controversial social and political issues as well as religious messages; (4) and that Plaintiff's banners were displayed in this forum for approximately 25 years pursuant to this policy or practice without complaint. Consequently, this case does not involve some vague description or identification of a forum. Compare Tucker v. State of Cal. Dep't of Educ., 97 F.3d 1204, 1209 (9th Cir. 1996) (rejecting the creation of "a limited purpose public forum in [the defendant's] offices by allowing its employees both to discuss 'public questions when they assemble informally at their desks, drinking fountains, lunch rooms, copy machines, etc.' and to display written materials in and around their offices and cubicles"). Rather, the School District has knowingly, purposefully, and intentionally opened the classroom walls for the personal, non-curricular speech of its teachers. See Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800, 802 (1985) (applying a forum analysis for restrictions [*7] on the use of government property for expressive purposes). Defendants cannot refute this evidence by simply closing their eyes and wishing it weren't so. Indeed, in their response to Plaintiff's undisputed statement of facts, Defendants "dispute" the creation of the forum only "to the extent that there are limits on what personal items teachers are permitted

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to display under the law, and by the District's own policies and practices." (Defs.' Resp. to Stmt. of Facts at PP 35-42) (emphasis added). Thus, they do not deny the existence of the forum, n5 and Plaintiff does not deny that there is certain speech that can be restricted by government officials in this forum under the law. n6 The question remains, however, whether the application of the "District's own policies and practices"-their viewpoint-based restriction-in this case is unconstitutional. And the answer to that question based on controlling law is an unequivocal yes. Moreover, in order to analyze this question under the facts of this case, the court must engage in a forum analysis because the case involves the use of government property (classroom walls) for expressive purposes (Plaintiff's banners). [*8] Cornelius, 473 U.S. at 802 (adopting "a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for [expressive] purposes"). Thus, in light of the forum created by Defendants for the personal, non-curricular speech of the district's teachers, what limitations does the law permit the government to make? Clearly, whether the forum is a public forum, a designated public forum, a limited public forum, or even a nonpublic forum, there is no disputing that the law does not permit government officials to make viewpoint-based restrictions. See Section C, below. As a result, Defendants' viewpoint-based restriction under the facts of this case is unconstitutional.

n5 Defendant Chiment testified on behalf of the School District as follows: Q: Sir, would you agree that the School District opens its classroom walls to certain expression by its teachers? A: In a limited way we open the walls, yes. Q: And that would be for messages that - and ideas that may not necessarily be curriculum related; is that right, sir? A: That's correct.
(Chiment Dep. at 273 at Ex. 3). [*9]
n6 For example, the School District could prohibit speech that promotes illegal drug use or underage alcohol consumption, see Morse, 551 U.S. at 408-09, that "materially and substantially disrupt[s] the work and discipline of the school," Tinker, 393 U.S. at 513, or that is sexually suggestive, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 678 (1986). The School District could also restrict speech that "incite[s] to imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444, 449 (1969). None of these constitutional limitations apply here.
C. Defendants' Viewpoint-Based Restriction Violates the First Amendment.
Defendants did not censor Plaintiff's speech because the banners "caused a material disruption or substantial disorder in the school or . . . interfered with the curriculum." (Defs.' Resp. to Stmt. of Facts at PP 98, 99). The decision to order Plaintiff to remove his banners was based on the "viewpoint" of the message expressed. (Defs.' Resp. to Stmt. of Facts at PP 93-96). Consequently, Defendants' [*10] speech restriction cannot withstand scrutiny under the United States or California Constitutions, which prohibit viewpoint discrimination even in nonpublic forums. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107-08 (2001); Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007); Truth v. Kent Sch. Dist., 524 F.3d 957, 973 (9th Cir. 2008) (observing that in a limited public forum "where restriction to the forum is based solely on . . . religious viewpoint, the restriction is invalid"); Cogswell v. City of Seattle, 347 F.3d 809, 815 (9th Cir. 2003) ("[If speech] fall[s] within an acceptable subject matter otherwise included in the forum, the State may not legitimately exclude it from the forum based on the viewpoint of the speaker."); Brown v. California Dep't of Transp., 321 F.3d 1217, 1222 (9th Cir. 2003) (stating that "[r]estrictions on free expression in a nonpublic forum [*11] are constitutional only if the distinctions drawn are . . . 'viewpoint neutral.'" (quoting Cornelius, 473 U.S. at 806); Perry, 460 U.S. at 46 (stating that

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speech restrictions in a nonpublic forum must be reasonable and viewpoint neutral); California Teachers Ass'n v. Governing Bd. of San Diego Unified Sch. Dist., 45 Cal. App. 4th 1383, 1391 (1996) (applying First Amendment principles to claims arising under California Constitution).
In sum, it is evident why Defendants want to avoid a forum analysis at all costs: the case law overwhelmingly demonstrates that their speech restriction is unconstitutional.
II. Undifferentiated Fear of an Establishment Clause Violation Does Not Justify Defendants' Viewpoint-Based Restriction of Plaintiff's Speech.
Defendants claim that their "interest in avoiding an Establishment Clause violation trump's [Plaintiff's] right to free speech." (Defs.' Opp'n at 3). This assertion cannot withstand even modest scrutiny. Indeed, the Supreme Court has made plain that the undifferentiated fear of an Establishment Clause violation does not justify a viewpoint-based restriction on speech. Widmar v. Vincent, 454 U.S. 263, 273 (1981); [*12] Rosenberger, 515 U.S. at 841-42; see also Tucker v. California Dep't of Educ., 97 F.3d 1204, 1212-13 (9th Cir. 1996) (rejecting Establishment Clause defense in "employee" speech case).
Moreover, the cases cited by Defendants, which Defendants acknowledge involve proselytizing and prayer in public schools, are not remotely analogous to the facts of this case. See, e.g., Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994) (restricting a teacher from evangelizing students about his Christian faith and beliefs); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000) (restricting a sectarian, proselytizing valedictory speech and a sectarian invocation at graduation); Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002) (restricting the use of the public address system for prayer and proselytizing); Lassonde v. Pleasanton Unified Sch. Dist, 320 F.3d 979 (9th Cir. 2003) (prohibiting proselytizing in high school graduation speech).
Here, there is no dispute as to the following facts:
. "Plaintiff's banners contain the following historical phrases: [*13] "In God We Trust," the official motto of the United States; "One Nation Under God," the 1954 amendment to the Pledge of Allegiance; "God Bless America," a patriotic song; "God Shed His Grace On Thee," a line from "America the Beautiful," a patriotic song; and "All Men Are Created Equal, They Are Endowed By Their Creator," an excerpt from the preamble to the Declaration of Independence." (Defs.' Resp. to Stmt. of Facts at P 68) (emphasis added).
. "Religious people founded this Nation; as a result, references to God are common in our songs, mottoes, and slogans." (Defs.' Resp. to Stmt. of Facts at P 75).
. "The phrases included in Plaintiff's banners were not taken from any religious documents or religious texts." (Defs.' Resp. to Stmt. of Facts at P 76).
. "Plaintiff's banners do not contain quotes or passages from Sacred Scripture or any other religious text." (Defs.' Resp. to Stmt. of Facts at P 77).
. "'In God We Trust' is the official motto of the United States." (Defs.' Resp. to Stmt. of Facts at P 79).
. "In 1942, Congress enacted the Pledge of Allegiance, which was amended in 1954 to officially include the phrase 'under [*14] God.'" (Defs.' Resp. to Stmt. of Facts at P 80).
. "'God Bless America' is an American patriotic song written by Irving Berlin in 1918 and later revised by him in 1938." (Defs.' Resp. to Stmt. of Facts at P 85). .
. "'God Bless America' is a phrase that is also commonly used in speeches by the President of the United States." (Defs.' Resp. to Stmt. of Facts at P 86).

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. "The song 'God Bless America' is often played at public events, including at sporting events, such as the seventh inning stretch at Yankee Stadium, since the terrorist attacks of September 11, 2001." (Defs.' Resp. to Stmt. of Facts at P 87).
. "'God Shed His Grace on Thee' is a verse from 'America the Beautiful,' an American patriotic song that is often played at public events." (Defs.' Resp. to Stmt. of Facts at P 88).
. "During his 30 plus years of teaching in the School District, Plaintiff has had 7 different school principals, numerous school board members, superintendents, assistant superintendents, over 4,000 students and several thousand parents in his classrooms where the banners were displayed. Prior to January 2007, Plaintiff had not received one complaint from any School District administrator, parent, [*15] or student about the banners." (Defs.' Resp. to Stmt. of Facts at P 89).
. "Plaintiff's banners never prohibited or interfered with his ability to educate the students in his math class." (Defs.' Resp. to Stmt. of Facts at P 90).
Moreover, Defendant Chiment testified on behalf of the School District as follows:
Q: Have you had any information of any negative connotations or comments about [Plaintiff's] teaching ability? A: None. Q: How about anything from a personal perspective? A: None. Q: Anyone ever make any complaints that you're aware of that he would proselytize students impermissibly? A: No.
(Chiment Dep. at 25 at Ex. 3) (emphasis added).
Combine these facts along with the fact that Defendants permit a science teacher to erect in her classroom a 35 to 40 foot personal, non-curricular display of Buddhist prayer flags and it is overwhelmingly evident that Defendants' alleged fear of an Establishment Clause violation is baseless. Indeed, this evidence demonstrates that Defendants' feigned Establishment Clause concern is little more than a pretext for their viewpoint-based restriction of Plaintiff's speech.
III. A "Balancing [*16] Test" Does Not Weigh in Favor of Restricting Plaintiff's Speech.
Defendants eschew any forum analysis in favor of a "balancing test"-albeit, a test in which Defendants predetermine the outcome in their favor based on their tendentious view of the law and facts. While a "balancing test" is not the proper way to analyze the constitutional issues in this case, even the fair application of such a test demonstrates that Defendants violated Plaintiff's constitutional rights.
The balancing test that Defendants favor was described in Pickering v. Board of Educ., 391 U.S. 563 (1968). See also Berry v. Department of Soc. Serv., 447 F.3d 642 (9th Cir. 2006). This test requires "a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568. Thus, an analysis under this test requires a true balancing of interests, not one in which the government has a finger on its side of the scale, as Defendants' analysis does.
Consequently, what [*17] evidence is there to demonstrate that Plaintiff's speech harmed the School District's "interest . . . in promoting the efficiency of the public services it performs through its employees" that is sufficient to

2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75418, *17

Page 7

trump Plaintiff's constitutional rights? The answer is simple: there is no such evidence. As Defendants admit, "Plaintiff's banners never prohibited or interfered with [Plaintiff's] ability to educate the students in his math class." (Defs.' Resp. to Stmt. of Facts at P 90). They admit that during the 30 plus years that Plaintiff has been officially evaluated, none of his "evaluators ever inform[ed] him that his banners were impermissible or that they disrupted or distracted from Plaintiff's teaching or the students' learning in any way." (Defs.' Resp. to Stmt. of Facts at P 31). They admit that "[d]uring his 30 plus years of teaching in the School District, Plaintiff has had 7 different school principals, numerous school board members, superintendents, assistant superintendents, over 4,000 students and several thousand parents in his classrooms where the banners were displayed[, and that p]rior to January 2007, Plaintiff had not received one complaint from any School [*18] District administrator, parent, or student about the banners." (Defs.' Resp. to Stmt. of Facts at P 89). And they admit that "[a]t the time they directed Plaintiff to remove his banners, [they] had no evidence that Plaintiff's banners caused any material disruption or disorder in the School District." (Defs.' Resp. to Stmt. of Facts at P 99). Thus, there is no evidence of harm to Defendants, let alone sufficient evidence to trump Plaintiff's constitutional rights. Moreover, Defendants admit that "[t]he School District believes that public schools play an important role educating and guiding our youth through the marketplace of ideas and instilling national values. [And o]ne method used by the School District to accomplish [this] task . . . is to permit students to be exposed to the rich diversity of backgrounds and opinions held by high school faculty." (Defs.' Resp. to Stmt. of Facts at PP 63, 64). Consequently, Plaintiff's banners actually "promot[e] the efficiency of the public services [the School District] performs through its employees." And as noted previously, Defendants' fear of an Establishment Clause violation is not plausible under the facts of this case. [*19]
In the final analysis, the balance weighs heavily in favor of protecting Plaintiff's speech.
CONCLUSION
Plaintiff respectfully requests that this court grant his motion for summary judgment.
Respectfully submitted,
THOMAS MORE LAW CENTER
By: /s/ Robert J. Muise Robert J. Muise, Esq. * Charles S. LiMandri, Esq. Counsel for Plaintiff Bradley Johnson

* Admitted pro hac vice
CERTIFICATE OF SERVICE
I am employed in the County of Washtenaw, State of Michigan. I am over the age of eighteen and not a party to the within action. My business address is Thomas More Law Center, 24 Frank Lloyd Wright Drive, P.O. Box 393, Ann Arbor, Michigan 48106.
On October 19, 2009, I served the following documents entitled: Plaintiff's Reply Memorandum in Support of Motion for Summary Judgment and this certificate of service on the parties in this action as follows: [see service list]
[X] (BY ELECTRONIC SERVICE) On the date executed below, I served the document(s) [*20] via CM/ECF described above on the designated recipients appearing on the service list through electronic transmission of said

2007 U.S. Dist. Ct. Motions 212047; 2009 U.S. Dist. Ct. Motions LEXIS 75418, *20

Page 8

document(s). A certified receipt is issued to the filing party acknowledging receipt by CM/ECF's system. Once CM/ECF has served all designated recipients, proof of electronic service is returned to the filing party.
[] (BY MAIL) I caused true copies of said document(s) to be enclosed in a sealed envelope(s) with postage thereon fully prepaid and the envelope(s) to be placed in the United States Mail at Ann Arbor, Michigan. I am readily familiar with the practice of the Thomas More Law Center for collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection.
[] (BY FACSIMILE) The above-referenced document(s) was transmitted by facsimile transmission to each recipient whose name and facsimile number appear on the service list. The transmission was reported as completed and without error. A true and correct copy of that transmission report is attached hereto and incorporated by reference.
[] [*21] (BY FEDERAL EXPRESS) I caused the above-described documents to be served on the interested parties noted on the service list by Federal Express.
[X] I declare under penalty of perjury under the laws of the United States that the above is true and correct.
Executed on October 19, 2009, at Ann Arbor, Michigan.
/s/ Robert J. Muise Robert J. Muise
Counsel for Plaintiff Bradley Johnson
SERVICE LIST
Stutz Artiano Shinoff & Holtz Daniel R. Shinoff, Esq. Jack M. Sleeth, Jr., Esq. Paul V. Carelli, IV, Esq. 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106-6113
Counsel for Defendants Poway Unified School District, Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, Penny Ranftle, Dr. Donald A. Phillips, William R. Chiment, and Dawn Kastner

 
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NO. 10-55445
____________________________________________
UNITED STATES COURT OF APPEALS
FOR THE
NINTH CIRCUIT
___________________________________________

BRADLEY R. JOHNSON,
Plaintiff/Appellee

vs.

POWAY UNIFIED SCHOOL DISTRICT, ET AL.,
Defendants/Appellants
_____________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA HON. ROGER T. BENITEZ Civil Case No. 3:07-cv-00783-BEN-WVG
_____________________________________________________________________________

APPELLEE’S ANSWERING BRIEF
_____________________________________________________________________________

ROBERT J. MUISE, ESQ.

CHARLES S. LIMANDRI, ESQ.

THOMAS MORE LAW CENTER

LAW OFFICES OF CHARLES S. LIMANDRI

24 FRANK LLOYD WRIGHT DRIVE

WEST COAST REGIONAL OFFICE OF THE

P.O. BOX 393

THOMAS MORE LAW CENTER

ANN ARBOR, MICHIGAN 48106

B

OX 9120

(734) 827-2001

R

ANCHO SANTA FE, CALIFORNIA 92067

(858)

759-9930

ATTORNEYS FOR PLAINTIFF/APPELLEE

____________________________________________________

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TABLE OF CONTENTS TABLE OF CONTENTS......................................................................................... i TABLE OF AUTHORITIES ................................................................................. iii INTRODUCTION .................................................................................................. 1 STATEMENT OF THE ISSUES............................................................................ 3 STATEMENT OF THE FACTS ............................................................................ 4 SUMMARY OF THE ARGUMENT ................................................................... 17 ARGUMENT ........................................................................................................ 18
I. Introduction ........................................................................................... 18 II. Defendants Violated Plaintiff’s First Amendment Right
to Freedom of Speech ............................................................................ 21 A. Plaintiff’s Speech Is Protected by the First Amendment ............ 21 B. Defendants Created a Forum for Plaintiff’s Speech ................... 23 C. Defendants’ Speech Restriction Violates the First
Amendment ................................................................................. 31 1. Defendants’ Speech Restriction Is Viewpoint-Based ......... 31 2. Defendants’ Speech Restriction Is Unreasonable ............... 32 III. Pickering/Berry/Garcetti/Eng Do Not Justify Defendants’ Speech Restriction ............................................................................................. 33 IV. Defendants’ Restriction Violates the Establishment Clause ................. 41 A. Defendants’ Restriction Disfavors Religion ............................... 43 B. Defendants’ Restriction Disfavors a Particular Religion............ 44
i

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C. Defendants’ Restriction Violates Lemon and Its Modifications .............................................................................. 45 1. The Purpose and Effect of Defendants’ Restriction............ 45 a. Impermissible Purpose ................................................... 46 b. Impermissible Effect ...................................................... 47 2. Defendants’ Restriction Fosters an Excessive Entanglement ....................................................................... 47
V. Defendants Violated the California Constitution .................................. 48 A. State Free Speech Claim ............................................................. 48 B. California Establishment Clause and No Preference Clause Violations .................................................................................... 49 1. California Establishment Clause ......................................... 49 2. California No Preference Clause ......................................... 49
VI. Defendants’ Viewpoint Restriction Violates the Equal Protection Clause .................................................................................................... 50
VII. The Individual Defendants Do Not Enjoy Qualified Immunity............ 50 CONCLUSION ..................................................................................................... 53 STATEMENT OF RELATED CASES ................................................................ 53 CERTIFICATE OF COMPLIANCE .................................................................... 55 CERTIFICATE OF SERVICE ............................................................................. 56
ii

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Cases

TABLE OF AUTHORITIES

A.C.L.U. v. Mercer County, 432 F.3d 624 (6th Cir. 2005) ............................................................................ 40
Anderson v. Creighton, 483 U.S. 635 (1987) ......................................................................................... 51
Arizona Life Coal., Inc. v. Stanton, 515 F.3d 956 (9th Cir. 2008) ............................................................................ 25
Berry v. Department of Soc. Serv., 447 F.3d 642 (9th Cir. 2006) ..................................................................... passim
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) ......................................................................................... 24
Board of Educ. v. Mergens, 496 U.S. 226 (1990) ......................................................................................... 39
Brandenburg v. Ohio, 395 U.S. 444 (1969) ......................................................................................... 24
Brown v. California Dep’t of Transp., 321 F.3d 1217 (9th Cir. 2003) .................................................................... 22, 32
California Teachers Ass’n v. Governing Bd. of San Diego Unified Sch. Dist., 45 Cal. App. 4th 1383 (1996) ........................................................................... 48
Carey v. Brown, 447 U.S. 455 (1980) ......................................................................................... 50
Carey v. Piphus, 435 U.S. 247 (1978) ......................................................................................... 53
Chaplinsky v. New Hampshire, 315 U.S. 568 (1941) ......................................................................................... 24

iii

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Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ................................................................................... 43, 44
Cogswell v. City of Seattle, 347 F.3d 809 (9th Cir 2003) ............................................................................. 31
Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) ......................................................................................... 43
Connick v. Myers, 461 U.S. 138 (1983) ......................................................................................... 34
Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985) .................................................................................. passim
County of Allegheny v. A.C.L.U., 492 U.S. 573 (1989) ............................................................................. 43, 44, 47
County of Sacramento v. Lewis, 523 U.S. 833 (1998) ......................................................................................... 50
Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000) .............................................................. 32, 34, 35
Edwards v. Aguillard, 482 U.S. 578 (1987) ................................................................................... 43, 46
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)........................................................................................ 42, 45
Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir. 1993) .......................................................................... 49
Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) .......................................................................... 34
Epperson v. Arkansas, 393 U.S. 97 (1968) ..................................................................................... 43, 44
iv

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Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007) ............................................................................ 31
Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007) ..................................................................... passim
Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991) .......................................................................... 53
Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) ........................................................................................... 31
Garcetti v. Ceballos, 547 U.S. 410 (2006) ................................................................................... 33, 36
Grayned v. City of Rockford, 408 U.S. 104 (1972) ......................................................................................... 23
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ......................................................................................... 51
Hazelwood Sch. Dist. v. Kulhmeier, 484 U.S. 260 (1988) ......................................................................................... 26
Hedges v. Wauconda Cmty. United Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993) .............................................................................. 41
Hill v. Colorado, 530 U.S. 703 (2000) ......................................................................................... 22
Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044 (9th Cir. 2003) .................................................................... 25, 40
Keyishian v. Board of Regents, 385 U.S. 589 (1967) ......................................................................................... 23
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) ......................................................................................... 31
v

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Larson v. Valente, 456 U.S. 228 (1982) ......................................................................................... 44
Lee v. York County Sch. Divs., 484 F.3d 687 (4th Cir. 2007) ............................................................................ 37
Lemon v. Kurtzman, 403 U.S. 602 (1971) ................................................................................... 45, 47
Lynch v. Donnelly, 465 U.S. 668 (1984) .................................................................................. passim
McCreary County v. A.C.L.U., 545 U.S. 844 (2005) ......................................................................................... 46
Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994) ............................................................................ 51
Morse v. Frederick, 551 U.S. 393 (2007) ................................................................................... 22, 24
New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123 (2d Cir. 1998) ............................................................................. 29
Nicholson v. Board of Educ. Torrance Unified Sch. Dist., 682 F.2d 858 (9th Cir. 1982) ............................................................................ 38
Osolinski v. Kane, 92 F.3d 934 (9th Cir. 1996) .............................................................................. 51
Paulson v. Abdelnour, 145 Cal. App. 4th 400 (2006) ........................................................................... 49
Perry Educ. Ass’n v. Perry Local Educators, 460 U.S. 37 (1983) .................................................................................... passim
Pickering v. Board of Educ., 391 U.S. 563 (1968) .................................................................................. passim
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Planned Parenthood v. Clark County Sch. Dist., 941 F.2d 817 (9th Cir. 1991) ............................................................................ 32
Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985) .......................................................................... 30
Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92 (1972) ........................................................................................... 50
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989) ............................................................................ 50
Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979) ....................................................................................... 48
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) ............................................................................. 29, 31, 39
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) ......................................................................................... 47
School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963) ......................................................................................... 43
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) .................................................................................. passim
Truth v. Kent Sch. Dist., 524 F.3d 957 (9th Cir. 2008) ............................................................................ 31
Tucker v. California Dep’t of Educ., 97 F.3d 1204 (9th Cir. 1996) ............................................................................ 39
United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth.,
163 F.3d 341 (6th Cir. 1998) ............................................................................ 30
United States v. Grace, 461 U.S. 171 (1983) ......................................................................................... 22
vii

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Van Orden v. Perry, 545 U.S. 677 (2005) ................................................................................... 38, 43
Wallace v. Jaffree, 472 U.S. 38 (1985) ........................................................................................... 46
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ........................................................................................... 1
Widmar v. Vincent, 454 U.S. 263 (1981) .................................................................................. passim
Zorach v. Clauson, 343 U.S. 306 (1952) ................................................................................... 41, 42
viii

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INTRODUCTION In its decision grant ing summary judgment in favor of Plaintiff/Appellee Bradley Johnson (“Plaintiff”), the dist rict court framed the ultimate question presented by this case as follows: “May a school district censor a high school teacher’s expression because it refers to Judeo-Chri stian views while allowing other teachers to express views on a num ber of controversi al subjects, including religion and anti-religion?” (R-66: Op. at 1; ER (Vol. 1) at 1). 1 The district court appropriately answered as follows: “On undi sputed evidence, this Court holds t hat it may not.” (R-66: Op. at 1; ER (Vol. 1) at 1). This court should affirm. In West Virginia State Bd. of Educ. v. Barnette , 319 U.S. 624 (1943), the U.S. Supreme Court stated, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, relig ion, or other matters of opinion.” Id. at 642 (emphasis added). In dir ect contravention, Defendants seek to prescribe what “shall be orthodox” in matt ers of op inion by permitting teach ers to express personal, non-curricular messa ges that prom ote certain favored ideologies, religions, and partisan viewpoints on controversial political and social issues, while censoring certain disfavored viewpoints, such as Plain tiff’s allegedly “Christian”
1 All record citations in this brief are to the four volume excerpts of record (“ER”) filed by Appellants. Appella nts’ ER contains the entire r ecord of the relevan t proceedings below.
1

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viewpoint. As a result of Defendants’ speech restriction, that “fixed star” in our
constitutional constellation has been obscured and an official orthodoxy
prescribed.
Indeed, it is undisputed that Defendants created the forum for the personal,
non-curricular speech at issue here . If Defendants wanted to close t he forum, they could.2 The fact that they refuse to do so and instead seek to retain the power
to permit the expression of viewpoints they favor and censor those they do not is
disturbing—and it is unconstitutional.
In the final analysi s, Defendants are inviting this court to rewrite First
Amendment law to allow government officials to discriminate based on a speaker’s
viewpoint. This court should decline the invitation and affirm the decision below.
2 This fact alone underm ines the hyperbolic claim s advanced by Amici Curiae National School Boards Association and California School Boards Association (“NSBA & CS BA”) in their brief filed in support of Defendants. The distric t court’s decision, which followed well-established First Amendment jurisprudence, does not “border on allowi ng teachers to determ ine the curriculum .” (NSBA & CSBA Br. at 10). And thi s is not a case where the governm ent “open[ed] a forum by accident.” (NSBA & CSBA Br. at 11). As noted above, if Defendants wanted to close the forum t omorrow, they could. The f act that De fendants refuse—and NSBA & CSBA support that decision—shows that this case is not about education or the students. Rather, it is about sch ool administrators (i.e., the government) wanting to retain the authority to prescr ibe what shall be ort hodox in matters of opinion. As the U.S. Supreme Court stat ed long ago, “state-operated schools may not be enclaves of totalitarianism.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969).
2

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STATEMENT OF THE ISSUES I. Whether Defendants violated Plai ntiff’s right to freedom of speech protected by the United States and California Constitutions by censoring Plaintiff’s personal, non-curricular speech in a forum they created for such speech based on Plaintiff’s viewpoint. II. Whether Defendants violated the Establishment Clause of the First Amendment to the United States Cons titution and the Establishm ent and N o Preference Clauses of the California C onstitution by offici ally preferring t he expression of certain relig ious and anti-religious views while censoring Plaintiff’s speech because it expressed a “Judeo-Christian” view. III. Whether Defendants violated th e Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by granting the use of a forum to teachers whose personal, non-curricular views Defendants find acceptable, but denying use of this forum to Plaintiff based on the viewpoint of hi s personal, non-curricular speech. IV. Whether Defendants were entitled to qualified imm unity in their individual capacities for violating Plain tiff’s clearly established constitutiona l rights.
3

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STATEMENT OF THE FACTS Plaintiff is a public school m ath teacher at Westview High School in the Poway Unified School Distri ct (hereinafter “School Distri ct”).3 He has taught math in the School District for m ore than 30 years. During these 30 plus years, he has taught at 3 diffe rent high schools in the di strict, including Mt. Carmel High School (1977 to 1989), Rancho Bernardo Hi gh School (1990 to 2002), and now Westview High School (2003 to present). (R-44: Johnson Decl. at ¶ 3; ER (Vol. 2) at 179-80). Plaintiff has a strong reputation as a teacher; he continues to be one of the highest rated math teachers at Westview High School. (R-44: Johnson Decl. at ¶¶ 4, 36; ER (Vol. 2) at 180, 192; R-54: Chiment Dep. at 24-25; ER (Vol. 3) at 333; Kastner Dep. at 33; ER (Vol. 3) at 384). The School District believes that publi c schools play an im portant role educating and guiding our yo uth through the mar ketplace of ideas and instilling national values. One m ethod the School Distri ct uses to acco mplish this task is to permit students to be exposed to the ric h diversity of backgr ounds and opini ons
3 At all relevant times, Defendants Jeff Mangum, Linda Vanderveen, Andrew Patapow, Todd Gutschow, and Penny Ranftle were mem bers of the Board of Education for the School District; De fendant Dr. Donald A. Phillips was the Superintendent; Defendant William Chiment was the Assistant/Associate Superintendent; and Defendant Dawn Kastner was the Principal of West view High School. All of the defendants approved the decision to remove Plaintiff’s banners. (R-26: Answer at 2; ER (Vol. 2) at 110; R-54: Chiment Dep. at 130, 137-38; ER (Vol. 3) at 351-53; Kastner Dep. at 101-02, 172; ER (Vol. 3) at 391, 394).
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held by its high school faculty. 4 (R-54: C himent Dep. at 271-72; ER (Vol. 3) at
366).
Accordingly, for the past 30 plus years, the School District has adopted a
policy, practice, and/or custom of permitting teachers to display in their classrooms
various non-curricular messages and other ite ms that reflect the indi vidual
teacher’s personality, opinions, and values regarding a wi de range of i nterests and
subject matter. Consequently, for the past 30 plus years, the classroom walls have
served and continue to serve as a foru m for teachers to convey personal, noncurricular messages on subjects that interest them .5 Indeed, Defendant Chim ent
testified on behalf of the School Dist rict as foll ows: “You could make the
argument that if the District were to say no one can put up anything up (sic) unless
it’s absolutely curriculum related and these [Plaintiff’s banners] were up, then they
would violate it. But our District has chos en - - a nd that would be perm issible, I
4 For exampl e, in addition to creating a forum for the personal, non-curricular speech of its teacher s, the School District permits its teachers to participate in the “day of si lence”—a pro-gay rights activ ity—on School Dist rict property, duri ng the school day, with the students so l ong as the teacher’s participation does not disrupt the teaching of his or her classes. (R-54: Collins Dep. at 124-26, 140; ER (Vol. 3) at 309-11). 5 (R-44-52: Johnson Decl. at ¶¶ 9, 11-15, Ex. A, Dep. Exs. 13-20, 24-26, 33, 35-36, 38-45, 47-69, 71-91, 93-96, 122, 135, 141- 42, 148-49, 151-52, 155, 158-59, 161; ER (Vol. 2) at 181-87, 194-279; R-54: Collins Dep. at 38-42, 56, 79-82, 85-86, 8889, 150-54, 162-63, 166-68; ER (Vol. 3) at 300-02, 304-06, 313-16; Chiment Dep. at 45, 57-58, 61-62, 82, 84-85, 128-29, 135-36, 141, 195-96, 199, 201-02, 211-17, 223-27, 230-31, 234-35, 273-74; ER (Vol. 3) at 338, 341-43, 346, 350, 352, 353, 356-58, 360-67; Kastner Dep. at 23-24, 67; ER (Vol. 3) at 381, 387).
5

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think, for a School District to do so, but our District has chosen not to do t hat, to
allow noncurricular and personal as well as curricular. And so when that
decision’s been made, I think that these meet at least that test. The test they don’t
meet is the advocacy of a particular sectarian viewpoint.” (R-54: Chiment Dep. at
128-29; ER (Vol. 3) at 350 (em phasis added); see also Chiment Dep. at 273; ER
(Vol. 3) at 366 (“In a lim ited way we open the walls [to teacher expression that is
not curriculum related.]”)).
Pursuant to thi s long-standing School District policy, practice, and/or
custom, teachers have displayed and cont inue to display in their classroom s such non-curricular materials as posters of roc k bands and m usicians;6 a poster of the controversial song Imagine written by John Lennon; 7 posters of vari ous
6 Defendants permit teachers to display posters of Nirvana, Bruce Springsteen and the E Street Band, Bob Dylan, and The Beatles, among others. (R-44, 46, 47: Dep. Exs. 52, 53, 54, 55, 56; ER (Vol. 2) at 222-26). 7 Defendants do not object to a teacher’s post ing of th e anti-religion lyrics of Imagine, which are as follows:
Imagine there’s no Heaven , It’s easy if you try , No hell below us , Above us only sky, Imagine all the peopl e, Living for today; Imagine there’s no countries, It isn’t hard to do, Nothing to kill or die for, And no religion too, Imagine all the people, Living life in peace; You m ay say that I’m a dreamer, But I’m not the only one, I hope someday you’ll join us, And the world will be as one; Imagine no possessions, I wonder if you can, No need for gr eed or hunger, A brotherhood of man, Imagine all the people, Shari ng all the world; You m ay say that I’m a dreamer, But I’m not the onl y one, I hope someday you’ll join us, And the world will live as one.
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professional athletes and professional sports teams; family photographs; non-
student artwork; posters and other items , such as bum per stickers, decals, and
buttons, promoting and advocating a viewpoint on controversial social and political
issues such as gay rights,8 global warming and the environment,9 animal research,10
(R-44: Johnson Decl. at ¶ 15, n.2, Ex. A, Dep. Ex. 20 (emphasis added); ER (Vol. 2) at 183-84, 202; R-54: Collins Dep. at 89-90; ER (Vol. 3) at 306-07; Chim ent Dep. at 177-78; ER (Vol. 3) at 354-55). 8 Defendants permit teachers to display the following: a “Stop Hate Crimes” poster created by the Human Rights Cam paign (hereinafter “HRC” found at www.hrc.org), “the largest nationa l lesbian, gay, bisexua l and transgender civil rights organization”; a poster with the pr o-gay HRC equal (“= ”) sym bol; a Gay, Lesbian and Strai ght Education Network (he reinafter “GLSEN” found at www.glsen.org) “Day of Silence ” poster, which prom otes the pro-gay day of silence; a gay, lesbian, bi-sexual, tran sgendered (“LGBT”) rainbow flag; decals of the HRC “equal” sym bol; bumper stickers with the pro-gay poli tical slogan, “Equal Rights Are Not Special Right s”; pro-gay “I am an ally ” decals created by GLSEN; bumper stickers with the pro-gay slogan, “ Celebrate Diversity,” in rainbow colors; postings about pro-gay support groups and issues; a pro-gay poster with the large capti on, “Unfortunately, History Has Set the Record A Little Too Straight,” highlighting the “National Com ing Out Day, October 11th,” which, according to the science teac her who displays the poster, is “a day when all gay people are supposed to com e out of t he closet and let people know t hey exist so that they will have a real live person to know who they are hating or not,” (R-54: Brickley Dep. at 7 3; ER (Vol. 3) at 403); a bum per sticker for EQCA (Equality California), a gay ri ghts organization that opposed Proposition 8 in California; a bumper sticker that says, “ Hate is not a family value ,” which the teacher posting it uses to convey “t he fact that ‘fam ily values’ is a term that the conservative right,” which includes Fundamentalist Christians and Catholics, “has used to make people who have different sorts of families wrong,” (R-54: Brickley Dep. at 114; ER (Vol. 3) at 408); HRC posters; AIDS posters ; and butt ons expressing pro-gay slogans such as “Hate Free Zone,” “Celebrate Diversity,” “Ask Me Why I’m S ilent,” and a pink triangle with “Never Again.” (R-44, 51, 52: Dep. Ex s. 13, 14, 15, 16, 17, 18, 19, 137, 138, 142, 161; ER (Vol. 2) at 195-201, 268, 269, 271, 279).
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anti-war/peace,11 the m ilitary,12 and others. 13 (See n.5, supra). All of these
expressive items were displayed as of Ap ril 2009, which is m ore than two years
after Defendants ordered Plaintiff to rem ove his patriotic banners. (R-44: Johnson
Decl. at ¶¶ 12-15; ER (Vol. 2) at 182-87).
Pursuant to this pol icy, practice, a nd/or custom, the School District has
allowed teachers to displa y Tibetan prayer flags, wh ich contain an image of
Buddha.14 These prayer flags ar e considered sacred, relig ious items by those who
practice Buddhism.15
9 Defendants permit teachers to display a Greenpeace poster stating, “ Stop Global Warming,” and another poste r stating, “ How Do You Like Your Environment? Regular or Extra Crispy . Avoid Products that Destroy the Ozone .” (R-47, 52: Dep. Exs. 64, 158; ER (Vol. 2) at 234, 277). 10 (R-47: Dep. Ex. 65; ER (Vol. 2) at 235). 11 Defendants permit teachers to display the following: a poster with a large peace symbol; a display of a Lincol n penny with the i nscription, “The War Is Coming. Are You Ready?”; a mock flag of the United States with a peace symbol located in the field of blue; a poster st ating, “war is not healthy for children and ot her things,” a bum per sticker stating, “ How many Iraqi children did we kill today? ”; and a poster stating, “Every Minute the World Spe nds $700,000 on W ar While 30 Children Die of Hunger & Inadequate Health Care .” (R-45, 51: Dep. Exs. 36, 38, 39, 40, 41, 43, 141; ER (Vol. 2) at 208-212, 214, 270). 12 (R-45, 47: Dep. Exs. 42, 60; ER (Vol. 2) at 213, 230). One poster displayed by a teacher consists of a large banner (approximately 5 feet high and 10 feet in length) with a photograph of an aircraft carrier and the following caption, “ Life, Liberty and the Pursuit of All Who Threaten It.” (R-45: Dep. Ex. 42; ER (Vol. 2) at 213). 13 For exam ple, Defendants perm it a teach er to display a poster advocating a viewpoint regarding the controversial is sue of zero populati on growth. (R-51: Dep. Ex. 152; ER (Vol. 2) at 275). 14 (See R-44: Johnson Decl. at ¶¶ 11, 15; E R (Vol. 2) at 181-84; Dep. Exs. 24-26, 148, 155; ER (Vol. 2) at 203- 05, 272, 276; R-54: Collins Dep. at 94-95; ER (Vol.
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Teachers have also displayed and con tinue to display nature pictures; inspirational messages on posters and banners; patr iotic messages on posters, banners, and flags; m ovie posters; posters of famous reli gious leaders, such as Gandhi (Hindu),16 the Dali Lama (Buddhist), and the controversial Malcolm X (the Nation of Islam/Islam); and items of particular political parties and/or candidates, including a campaign poster of candidate Obama, a Newsweek magazine cover of the candidates Obama and Biden; and a poster of the “Libertarian Party.” 17 (See n.5, supra).
Permissible subject matter for this foru m for non-curricular, personal speech include, inter alia, the foundations of our Nation, pa triotic messages, inspirational messages, historical m essages, and slogans that are praiseworthy of our Nation. (R-44: Johnson Decl. at ¶¶ 11-15, 38; ER (Vol. 2) at 181-87, 192; R-54: Collins Dep. at 38-40, 56, 155-56; ER (Vol. 3) at 300, 302, 314; Chi ment Dep. at 45, 8485, 135-36, 141, 215-17; ER (Vol. 3) at 338, 346, 352, 353, 361; Kastner Dep. at
3) at 308; Chim ent Dep. at 180-81; ER (V ol. 3) at 355). One teacher’s Buddhist prayer flag display stretches 35 to 40 fe et across her science cl assroom. (R-44: Johnson Decl. at ¶ 15, n.3; ER (Vol. 2) at 184; R-54: Brickley Dep. at 87; ER (Vol. 3) at 405). 15 Buddhists believe that these flags im part a spiritua l blessing upon those in the presence of the flags. (R-44: Johnson De cl. at ¶ 11; ER (Vol. 2) at 181-82; R-54: Brickley Dep. at 90; ER (Vol. 3) at 406). 16 Defendants permit a posting of Gandhi ’s “7 Deadly Social Sins.” (R-46: Dep. Ex. 48; ER (Vol. 2) at 218). 17 Defendants also permit the display of the Gadsden flag with the political slogan, “Don’t Tread on Me.” (R-47: Dep. Exs. 62, 63; ER (Vol. 2) at 232-33).
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Case: 10-55445 08/30/2010 Page: 19 of 65 ID: 7457007 DktEntry: 14-1
45; ER (Vol. 3) at 3 86). And, as Defe ndants admitted below, “[R]eligion is not a category of item s prohibited from classroom walls.” (R-55: Defs.’ P. & A. in Supp. of Mot. for Summ. J. at 7; ER (Vol. 3) at 426).
Pursuant to this School District po licy, practice, and/or custom, for approximately 25 years Plaintiff continuously displayed, without objection, various patriotic banners that reflect the history and heritage of our N ation.18 Plaintiff had the banners made to order by a private company and purchased them with his own personal funds. The banners do not bel ong to t he School District; they are Plaintiff’s personal items. (R-44: Johnson Decl. at ¶ 5; ER (Vol. 2) at 180).
Plaintiff’s banners contain well-known historical, patriotic phrases and slogans central to our Nation’s hi story and heritage, and they reflect the foundations of our Nation. The banners do not contain quot es or passages from Sacred Scripture or a ny other religious te xt. (R-44: Johnson Decl. at ¶¶ 6, 17-32; ER (Vol. 2) at 180, 188-91; R-52: Ex. B; ER (Vol. 2) at 280-87; R-54: Collins Dep. at 27-34; ER (Vol. 3) at 297-99; C himent Dep. at 36-37, 40-43, 46, 118-21; ER (Vol. 3) at 336-39, 349; Kastner Dep. at 158-59; ER (Vol. 3) at 393).
18 During his 30 plus years of teaching in the School District, Plaintiff has had 7 different school pri ncipals, numerous sc hool board m embers, superintendents, assistant superintendents, over 4,000 stude nts and several thous and parents in his classrooms where the banners we re displayed. Pri or to the Fall of 2006, Plaintiff had not received one co mplaint from any School District administrator, parent, or student about the banners. (R-44: Johnson Decl. at ¶ 33; ER (Vol. 2) at 191).
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The classrooms in which Plaintiff’s banners were displayed were assigned to him. His current classroom in Westvi ew High School is his cl assroom for homeroom and academic class es. He also uses his cl assroom for non-curricular and extra-curricular activities. (R-44: Johnson Decl. at ¶ 7; ER (Vol. 2) at 180). As a matter of School District policy, pr actice, and/or custom, teachers are given discretion and control over the various non-curricular messages displayed on their classroom walls. For exampl e, no teacher is permitted to display m aterials or messages on Plaintiff’s classroom walls without his permission, and t he School District does not direct the teachers’ non-curricular displays; it is up to the individual teacher. (R-44: Johnson Decl. at ¶¶ 8, 9; ER (Vol. 2) at 180-81; R-54: Collins Dep. at 42-43, 57; ER (Vol. 3) at 301-02; Chiment Dep. at 64-65, 91, 134; ER (Vol. 3) at 343, 347, 352). Conse quently, as Defendants adm it, the School District does not endorse or promote the non-curricular messages displayed by the teachers. (R-44: Johnson Decl. at ¶¶ 5, 16; ER (Vol. 2) at 180, 188; R-54: Collins Dep. at 40-41; ER (Vol. 3) at 300; Chiment Dep. at 274, 279; ER (Vol. 3) at 367, 368). Thus, the teachers’ displ ays do not constitute government speech.19 (R-44:
19 Defendant Chiment testified on behalf of the School District as follows: Q: You would agree, though, too, that t hese -- the posters that the teachers put up, the noncurriculum ones that might express their own personal interest, whether it be sports or it m ight be in environm ental issues like the ones we saw -A: Yes. 11

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Johnson Decl. at ¶¶ 5, 16; ER (Vol. 2) at 180 188; R-54: Collins Dep. at 40-41; ER
(Vol. 3) at 300; Chiment Dep. at 274, 279; ER (Vol. 3) at 367, 368).
Plaintiff’s banners contain the followi ng historical, patriotic phrases: “In
God We Trust,” the official motto of the United States; 20 “One Nation Under
God,” the 1954 amendment to the Pledge of Allegiance; 21 “God Bless America,” a
patriotic song;22 “God Shed His Grace On Thee ,” a line f rom “America the
Q: -- that those don’t necessarily mean that t he School District is endorsing those particular views or opinions? Isn’t that true? A: Yes, that’s true. (R-54: Chiment Dep. at 274; ER (Vol. 3) at 367). Mr. John Collins, Deputy Superintendent of the School District at the time, testified on behalf of the School District as follows: Q: * * * So just because a teacher may actually post somet hing of a personal interest to them [on the classroom wall ], that doesn’t necessarily mean that it’s the School District endorsing or prom oting that teacher’s particular interest. Isn’t that fair to say? A: That is. (R-54: Collins Dep. at 41; ER (Vol. 3) at 300). 20 A law passed by Congress and signed by the Preside nt on July 30, 1956, approved a joint resoluti on of Congress th at declared “In God we trust” the national motto of the United States. “In God We Trust” appears above the Speaker’s Chair in the United States Hous e of Representatives and above the main door of the United States Se nate chamber. (R-44: J ohnson Decl. at ¶¶ 22, 24; ER (Vol. 2) at 189). 21 In 1942, Congress enacted the Pledge of Allegiance, which was amended in 1954 to officially include the phrase “under God. ” Students in the School District recite the Pledge of Allegiance on a daily basis. (R-44: Johnson Decl. at ¶ 27; ER (Vol. 2) at 190). 22 “God Bless America” is an American pa triotic song written by Irving Berlin in 1918 and later revised by hi m in 1938. It is often played at public events, including at sporting events, such as th e seventh inning stretch at Yankee Stadium , since the terrorist attacks of September 11, 2001. (R-44: Johnson Decl. at ¶ 30; ER
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Beautiful,” a patriotic song; 23 and “All Men Are Created Equal, They Are
Endowed By Their Creator,” an excerpt fro m the pream ble to the Declaration of
Independence.24 (R-44: Johnson Decl. at ¶¶ 6, 17 -32; ER (Vol. 2) at 180, 188-91;
R-52: Ex. B; ER (Vol. 2) at 280-87; R-54: Collins Dep. at 27-34; ER (Vol. 3) at
297-99; Chiment Dep. at 36-3 7, 40-43, 46, 118-21; ER (V ol. 3) at 336-39, 349;
Kastner Dep. at 158-59; ER (Vol. 3) at 3 93). Consequently, the subject matter of
Plaintiff’s speech was permissible in this forum.25
Plaintiff’s banners were not displayed pursuant to a ny of his official duties
as a teacher. He did not use his banners during any classroom session or period of
instruction. They were not discussed or studied. They caused no material
disruption or disorder in his c lassroom or anywhere else in the school . They did
(Vol. 2) at 190-91; R-54: Coll ins Dep. at 29-30; E R (Vol. 3) at 297-98; Chiment Dep. at 40; ER (Vol. 3) at 337). “God Bl ess America” is a phrase that is also commonly used in speeches by the President of the United States. (R-44: Johnson Decl. at ¶ 31; ER (Vol. 2) at 191; R-54: Collins Dep. at 30; ER (Vol. 3) at 298; Chiment Dep. at 40-41; ER (Vol. 3) at 337). 23 “God Shed His Grace on Thee” is a ve rse from “America the Beautiful,” an American patriotic song that is often played at public events. (R-44: Johnson Decl. at ¶ 32; ER (Vol. 2) at 191; R-54: Collins Dep. at 30; ER (Vol. 3) at 298). 24 The preamble to the Decl aration of I ndependence states as follows: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Decl aration of Independence is our Nation’s founding document. (R-44: Johnson Decl. at ¶ 29; ER (Vol. 2) at 190). 25 (R-44: Johnson Decl. at ¶¶ 11-15, 38; ER (Vol. 2) at 181-87, 192; R-54: Collins Dep. at 38-40, 56, 155-56; ER (Vol. 3) at 300, 302, 314; Chi ment Dep. at 45, 8485, 135-36, 141, 215-17; ER (Vol. 3) at 338, 346, 352, 353, 361; Kastner Dep. at 45; ER (Vol. 3) at 386).
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not interfere with his teaching.26 And they were not expressing a message on
behalf of the School District. (R-44: Johnson Decl. at ¶¶ 5, 16, 36, 39; ER (Vol. 2)
at 180, 188, 192; R-54: Collins Dep. at 40- 41, 94, 125-26; ER (Vol. 3) at 300, 308,
310; Chiment Dep. at 93-95, 271-72, 274, 276, 279; ER (Vol. 3) at 347-48, 366-68;
Dep. Ex. 6; ER (Vol. 3) at 372).
Plaintiff’s long-standing practice of displaying his banners came to an abrupt
end in Ja nuary, 2007, when Defendants ordered Plaintiff t o take them down.27
Defendants directed Plaintiff to remove his banners becau se they believed that the
banners were promoting a “Christian” or “Judeo/Christian” viewpoint. On behal f
of the School District, Defendant Chiment sent a letter to Plaintiff expla ining the
order to rem ove the banners. In the letter, Defendant Ch iment stated that
26 During his first two years as a probatio nary teacher, Plaintiff was evaluated 3 times each year. As a tenur ed teacher, Plaintiff is ev aluated twice a year, ever y other year by the School Dist rict. Typi cally, the evaluation is performed by an assistant principal. As part of the eval uation, the administrator observes Plaintiff teaching in his classroom an d evaluates whether or not his teaching and his classroom comport with School District standards and policies. None of Plaintiff’s official evaluations over a 30-plus-year peri od ever indicated that his banners were impermissible, nor did any of Plaintiff’s evaluators ever inform him that his banners were im permissible or that the y disrupted or detracted from Plaintiff’s teaching or the stude nts’ learning in any way. (R-44: Johnson Decl. at ¶ 34; ER (Vol. 2) at 191). 27 Prior t o the School District’s order to remove the banners i n 2007, the School District received no complaints about the banners from students, teachers, parents, or School Board m embers. The only com plaint to the School District came from Defendant Kastner in the fall of 2006, and this complaint resulted in the removal of the banners. (R-44: Johnson D ecl. at ¶¶ 5, 33, 34, 37; ER (Vol. 2) at 180, 191-92; R-54: Chiment Dep. at 34-36; ER (Vol. 3) at 336).
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Plaintiff’s banners conveyed an im permissible “sectarian viewpoint ” and, m ore specifically, “a particular sect arian viewpoint.” The “particular sect arian viewpoint” noted in the letter was referri ng to t he viewpoint of “t hose religious groups who refer t o a supreme being as God,” such as Christians. Defendant Dawn Kastner, Plaintiff’s pri ncipal at Westview High School, beli eved that Plaintiff’s banners were im permissible because they expre ssed a “Christian” viewpoint. (R-44: Johnson Decl. at ¶¶ 37- 39; ER (Vol. 2) at 192; R-54: Colli ns Dep. at 43-44; ER (Vol. 3) at 301; Chiment Dep. at 29-31, 130, 133, 278; ER (Vol. 3) at 334-35, 351, 368; Kast ner Dep. at 44-45, 101-02, 137, 172; ER (Vol. 3) at 385-86, 391-92, 394; Dep. Ex. 6; ER (Vol. 3) at 372). Meanwhile, Defendants had no objection t o a sc ience teacher displaying a 35- to 40-foot string of Tibetan prayer flags, which are sacred item s that promote the Buddhist religion.28 In fact, the science teacher who displ ays the prayer flags was not surprised that the flags contained sacred text and prayers of Budd hists, noting quite accurately t hat “there was a Buddhist picture on there.” (R-54: Bric kley Dep. at 90; ER (Vol. 3) at 406). Moreover, Defendants admit that these per missible prayer flags “ are non-
28 (See R-44: Johnson Decl. at ¶¶ 11, 15, n.3; ER (Vol. 2) at 181-84; Dep. Exs. 2426, 148, 155; ER (Vol. 2) at 203-05, 27 2, 276; R-54: Collins Dep. at 94-95; ER (Vol. 3) at 308; Chi ment Dep. at 180-81; ER (Vol. 3) at 355; Brickley Dep. at 87, 90; ER (Vol. 3) at 405-06).
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curricular personal items in nature ,” similar to Plaintiff’s banners. (Defs.’ P. &
A. in Supp. of Mot. for Summ. J. at 19; ER (Vol. 3) at 438).
At the time Defendants directed Plaintif f to remove his banners, they had no
evidence that the banners caused any materi al disruption or di sorder in the School
District.29 Defendants’ rem oval of Plaintiff’s banners was not curriculum related;
Plaintiff was teaching and continues to teach his assigned mathematics
curriculum.30 Defendants singled out Plaintiff for disfavored treatment because of
the viewpoint expressed by his message. (R-44: Johnson Decl. at ¶¶ 16, 35-39; ER
(Vol. 2) at 188, 192; R-54: Collins Dep. at 36-37, 43-44, 95; ER (Vol. 3) at 299,
301, 308: Chiment Dep. at 49-51, 93-95, 130, 133, 276, 278; ER (Vol. 3) at 339-
29 Moreover, Defendants had no evidence that Plaintiff was using his ba nners to proselytize. Defendant Chiment testifie d on behalf of t he School District as follows:
Q: Have you had any inform ation of any negati ve connotations or comments about [Plaintiff’s] teaching ability? A: None. Q: How about anything from a personal perspective? A: None. Q: Anyone ever ma ke any complaints that you’re aware of that he would proselytize students impermissibly? A: No. (R-54: Chiment Dep. at 25; ER (Vol. 3) at 333) (emphasis added). 30 Mr. Collins, testifying on behalf of the School District, admitted that Plaintiff’s banners “were not part of the curriculu m,” and that “[t]he banners have not prevented [Plaintiff] from providing math instruction and fulfilling his responsibilities.” (R-54: Collins Dep. at 94, 125-26; ER (Vol. 3) at 308, 310; see also Chiment Dep. at 93; ER (Vol. 3) at 347) (concurring that the banners were not part of the math curriculum taught by Plaintiff).
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40, 347-48, 351, 367-68; Kastner Dep. at 44-45, 85-86, 101-02, 137; ER (Vol. 3) at 385-86, 390-92; Dep. Ex. 6; ER (Vol. 3) at 372). The decision to order Pl aintiff to remove his banners was approved by all Defendants, including the Superintendent and the School Board. (See n.3, supra).
Had Plaintiff not complied with Defenda nts’ order to rem ove his banners, Plaintiff would have been subject to some form of disciplinary action for insubordination. (R-44: Johnson Decl. at ¶ 41; ER (Vol. 2) at 193; R-54: Collins Dep. at 59; ER (Vol. 3) at 303).
SUMMARY OF THE ARGUMENT The undisputed facts of thi s case compel the court t o conduct a First Amendment forum analysis, similar to the analysis conducted by the district court. And based on well-establishe d and controlling law, Defendants’ viewpoint-based restriction of Plaintiff’s speech violates his right to freedom of speech protected by the United States and California Constitutions . Indeed, should this court decide to engage in a balancing test, t hat balance also weighs in favor of protecting Plaintiff’s speech. By granting the use of a forum to te achers whose personal, non-curri cular views Defendants find acceptable, but denying use of this forum to Plaintiff based on the viewpoint of his personal, non-curri cular speech, Defendants violated not
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only the First Amendm ent, but the Equal Protection Clause of the Fourteenth Amendment as well.
Finally, by favoring certain religio us and anti-religious speech and disfavoring Plaintiff’s alleged “Judeo-Ch ristian” speech, Defendants violated the Establishment Clause of the United States Constitution and the Establishment and No Preference Clauses of the California Constitution.
Because Defendants violated clearly es tablished constitutional rights, they do not enjoy qualified immunity in thei r individual capacities. Consequently, Plaintiff is entitled to nom inal damages as well as declaratory and injunctive relief for the violation of his constitutional rights.
ARGUMENT I. Introduction.
Defendants’ entire argument is predicated upon a factual record that does not exist.31 Defendants acknowledged below that “there are no material issues of fact.” (R-60: Defs.’ Reply to Pl.’s Opp’n t o Mot. for Summ. J. at 1; ER (Vol. 4) at 693). Yet, they proceed to advance argument s before this court that find no factual support. Indeed, the undisputed facts, which are based alm ost entirely upon Defendants’ testimony, demonstrate the following:
31 The same can be said for the argumen ts advanced in the briefs filed by Amici Curiae NSBA & CSBA and Amicus Curiae Americans United for Separation of Church and State.
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 The School District intentionally created a forum for the personal, non-curricular speech of its teachers;32

 Plaintiff displayed his banners in this forum for over 25 years without

complaint;

 Plaintiff’s banners are not part of the curriculum

; the banners

constitute personal, non-curricular speech. 33 In fact, Defendants made the

following admission in their brief filed in support of their m otion for summary

judgment: “The [Tibetan prayer] flags, like Johnson’s banners , are non-

32 Defendants com plain that “[t] he District Court’s ruling fails to analyze the purpose for which [all of the items in the record identified by Plaintiff as a result of the court-ordered inspection] were displayed, e.g., whether a particular display was a student project or a teach er decoration, and whether the classroom was for science, history, or other subject. The absence of that analysis was error.” (Defs.’ Br. at 52). However, the alleged failing, if there is one, is not on the part of the district court; rather, this alleged failing is on the part of Defendants, who provided no evidence to dispute Plaintiff’s clai m that these items were displayed pursuant to the School District’s policy of perm itting teachers to display personal, noncurricular items. Indeed, a si mple review of the record demonstrates that the items are personal and non-curricular in nature. It is too late in the day for Defendants to complain about the record below. 33 No doubt realizing that they cannot win this appeal based on the record, Defendants make the unsupported cl aim that “Johnson’s banners are both curricular in nature and speech made pursuant to his du ties as a teacher .” (Defs.’ Br. at 34). However, the testimony provi ded on behalf of the School District flatly contradicts Defendants’ claim. (R-54: Chiment Dep. at 128-29; ER (Vol. 3) at 350 (describing Plaintiff’s banners as “non curricular and personal” speech ); Collins Dep. at 94; ER (Vol. 3) at 308 (stati ng that the banners “were not part of t he curriculum”)).
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curricular personal items in nature . . . .” (Defs.’ P. & A. in Supp. of Mot. for Summ. J. at 19; ER (Vol. 3) at 438).
 Plaintiff’s banners do not express a message on behalf of the School District. Consequently, Plaintiff’s spee ch is private speech and not governm ent speech, similar to the other personal, non-c urricular speech that the School District permits;
 Permissible subject matter in the fo rum created by the School District include messages related to the founda tions of our Nation, patriotic messages , inspirational messages, historical messages, slogans that are praiseworthy of our Nation, and religious messages, am ong others, including me ssages related to controversial subject matter such as gay rights, global warming, and war/anti-war;
 The message conveyed by Plain tiff’s banners falls within a permissible subject matter for the forum created by the School District;
 Defendants’ restriction on Pla intiff’s speech was viewpoint-based; that is, Defendant s restricted Plaintif f’s speech because, according to them, Plaintiff’s patriotic banners conveyed a “Judeo-Christian” viewpoint;
 Plaintiff’s “Judeo-Christian” viewpoint was prohi bited, while Defendants permitted speech expressing Buddhist and other religious m essages, as well as anti-religious messages.
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In their brief, Defendants cite to a School District policy that allegedly prohibits teachers from “using classroom te acher influence to prom ote partisan or sectarian viewpoints.” (Defs.’ Br. at 15). Yet, Defendants have no objection when teachers blatantly use their “classroom teacher influence to promote” gay rights (in fact, Defendants perm it teachers to activel y engage in a protest wit h students, during the school day, and on school property to promote such rights), global warming, anti-religious sentiments, Buddhism, among other “partisan or sectarian” viewpoints. This court, like the district court, should be troubled by Defendants’ position. As the district court appropriately noted, “Ironically, while t eachers in the Poway Unified School Di strict encourage students to celebrate diversity and value thinking for one’s se lf, Defendants apparently fear their students are incapable of dealing with diverse viewpoi nts that include God’s place in American history and culture.” (R-66: Op. at 5, n.1; ER (Vol. 1) at 5).
Based on these undisputed facts and in l ight of the controlling case law, this court should affirm the decision below. II. Defendants Violated Plaintiff’s Firs t Amendment Right to Freed om of
Speech. A. Plaintiff’s Speech Is Protected by the First Amendment. The undisputed facts establish that Defendants created a forum for teachers to engage in personal, non-curricular sp eech. Defendants seek to avoid this inconvenient fact (and the controlling law) so as to keep this forum open for
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favored opinions and viewpoi nts, while retaining the power to censor viewpoint s they dislike. From a legal (and educati onal) perspective, De fendants’ arguments are misguided.
Plaintiff, a public school teacher, does not “shed [his] constitutional rights to freedom of speech or expressi on at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 506 (1969) (“First Amendment rights . . . are available to teachers and students.”); Morse v. Frederick , 551 U.S. 393, 403 (2007) (“In Tinker, this Court made clear that ‘First Amendment rights, applied in light of t he special characteristics of the school environm ent, are available to teachers and student s.’”); Perry Educ. Ass’n v. Perry Local Educators , 460 U.S. 37, 44 (1983) (“The First Amend ment’s guarantee of free speech applies to teacher’s mailboxes as surely as it does elsewhere within the school . . . .”).
And there can be no dispute that Plai ntiff’s banners constitute protected speech. See Hill v. Colorado, 530 U.S. 703, 715 (2000) (“[S]ign displays . . . are protected by the First Amendment.”); United States v. Grace , 461 U.S. 171, 17677 (1983) (dem onstrating with signs a nd banners constitutes protected speech under the First Amendment); Brown v. California Dep’t of Transp., 321 F.3d 1217 (9th Cir. 2003) (enj oining policy restricting the display of signs or banners on highway overpass fences, a nonpublic forum, under the First Amendment).
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Moreover, Plaintiff’s banners, which we re displayed without objection for 25 years, did not di srupt the classroom nor materially interfere with the basic educational mission of the School Distric t. See Tinker, 393 U.S. at 513 (holding that the “special characteristics of the sc hool environment” permit restrictions on speech only so long as the speech “ materially and substantially disrupt[s] the wor k and discipline of the school”); Grayned v. City of Rockford , 408 U.S. 104 (1972) (same).
Finally, there can be no dispute that Plaintiff’s constitutional rights are implicated by Defendants’ speech restriction. See Perry Educ. Ass’n , 460 U.S. at 44 (“There is no question that constitutiona l interests are im plicated by denying [appellee] use of the interschool m ail system.”); Keyishian v. Board of Regents , 385 U.S. 589, 605-06 (1967) (“ [T]he theory that public employment . . . may be subjected to any conditi ons, regardless of how unreasonable, has been uni formly rejected.”).
In sum, Plaintiff’s banners constitute protected speech. And Plaintiff has a First Amendment right to display his banners in the forum created by Defendants.
B. Defendants Created a Forum for Plaintiff’s Speech. There is no escapi ng the fact that th is is a forum analysis case—not a Pickering balancing case—because Plaintiff is seeking to use government property (his classroom walls) for non-curricular , personal expression pursuant to a
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longstanding School District policy, practice, and/or custom of permitting teachers
to use this forum for such speech—a pr actice that the School District does not
deny.34
However, Defendants invite this court to eschew a forum analysis in favor of
a “balancing” test in which the y have their fingers on the scale. This court should
reject Defendants’ invitation, which essentially strips Pl aintiff of his fundamental
rights and undermines the values protected by the First Amendment.
The U.S. Suprem e Court “ha s adopted a forum analysis as a means of
determining when the Gove rnment’s interest in limiting the use of it s property to
its intended purpose outweighs the interest of those wishing to use the property for
other purposes.” Cornelius v. NAACP Legal Defense & Educ. Fund , 473 U.S.
788, 800 (1985) (emphasis added); see Flint v. Dennison , 488 F.3d 816, 828-30,
34 There are recognizable limits that the courts have upheld in a school setting. For example, the School District could prohib it speech that promotes illegal drug use, see Morse, 551 U.S. at 408-09, or that “materially and substantially disrupt[s] the work and discipline of the school,” Tinker, 393 U.S. at 513, such as speech prohibited by an anti-harassment policy or speech that i s sexually suggestive, Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675, 678 (1986). Under Suprem e Court precedent, the School District co uld also restrict speech that “incite[s] to imminent lawless action,” Brandenburg v. Ohio , 395 U.S. 444, 449 (1969), or speech that constitutes “fighting words,” Chaplinsky v. New Hampshire , 315 U.S. 568, 572 (1941). None of these limitations apply to Plaintiff’s patriotic expression. Moreover, as noted previously, the School District could simply close the forum to all non-curricular speech. Co nsequently, the suggestion that the distri ct court’s decision requires the School District to su rrender its classrooms and its curriculum to the teachers is hyperbolic nonsense. See generally Br. of Amici NASB & CASB.
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n.9 (9th C ir. 2007) (conducting a forum anal ysis in a case seeking review of a public school speech restriction); Hills v. Scottsdale Unified Sch. Dist. No. 48 , 329 F.3d 1044, 1048 (9t h Cir. 2003) (“To anal yze his [First Amendm ent free speech] claim, we m ust first consider what type of forum the [School] District has created.”).
Consequently, contrary to Defendants’ arguments, to determine the extent of Plaintiff’s free speech rights on School District property in light of the facts of thi s case, the court must engage in a Fi rst Amendment forum an alysis. Arizona Life Coal., Inc. v. Stant on, 515 F.3d 956, 968 (9th Cir. 2008) (“The first step in assessing a First Amendm ent claim relating to private speech on governm ent property is to identify the nature of th e forum.”) (internal quotations om itted); see also Perry Educ. Ass’n , 460 U.S. at 44 (appl ying a forum analysis in a cas e involving a public school speech restri ction and noting that “[t] he First Amendment’s guarantee of free speech a pplies . . . within the school and on sidewalks outside”) (internal citation and punctuation omitted).
Defendants cite to Berry v. Department of Soc. Serv. , 447 F.3d 642 (9th Cir. 2006), to argue that the Pickering balancing test should apply to the facts of this case. ( See Defs. Br. at 38-39). Howev er, in Berry this Circuit applied a forum analysis to determ ine the constitutionality of the governm ent’s restriction on the use of its facilities for the plaintiff’s speech (as opposed to the Pickering balancing
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test the court applied to evaluate the restriction of plai ntiff’s speech when counseling clients of the department).
Thus, it would be error to accept Defendants’ invitation to ignore controlling law, which compels a forum analysis under th e facts of this case . See Flint, 488 F.3d at 828-30, n.9 (noti ng that it is error to not conduct a forum analysis and further noting that the U.S. Supreme Court has reinforced “the conclusion that we must analyze [the public school speech restri ction at issue] within the confines of traditional forum analysis”).
In Hazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260, 267 (1988), for example, the Court applied its forum analysis in the context of a public high school. The Court specifically noted that school facilities—such as the classroom walls in this case—could be deemed “public forums” for First Amendment purposes if school authorities “by policy or by practice” opened those facilities for use “by some segm ent of the public, such as student organizations”—or, as here, teachers. Id.; see Perry Educ. Ass’n , 460 U.S. at 3 7 (applying a forum analysis to determine the constitutionalit y of a speech restri ction applied to t he interschool mail system and teacher mailboxes in a public school district).
“Forum analysis has traditi onally divided government property int o three categories: public fora, designated public fora, a nd nonpublic fora.” Flint, 488 F.3d at 830 (citation om itted). “Once the forum is identified, we determ ine
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whether restrictions on speech are justified by the requisite standard.” Id. “On one end of the fora spectrum lies the traditio nal public forum, ‘places which by long tradition . . . have been devoted to assembly and debate.’ Next on the spectrum is the so-called designated public forum, which exists ‘[w]hen the governm ent intentionally dedicates its property to expressive conduct.’” Id. (citations omitted). As the U.S. Supreme Court stated, “ [A] public forum may be created by government designation of a place or channel of co mmunication for use by the public at large for assembly and speech, for use by certain speakers , or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802 (emphasis added). In a traditional or designated public forum , restrictions on speech are subject to strict scrutiny. Flint, 488 F.3d at 830.
In Widmar v. Vincent, 454 U.S. 263 (1981), for exam ple, the Court held that a state university, which made its facilities generally available for the activities of registered student groups (sim ilar to this case, the university’s facilities were not open to the general public), may not close its facilities to a student group based on the content of the group’s speech. Id. at 264-65, 267, n.5. The Court stated, “Through its policy of accommodating their meetings, the University has created a forum generally open for use by st udent groups. Having done so, the Universit y has assumed an obl igation to justify it s discriminations and exclusions under applicable constitutional norms . . . even if it was not required to create the forum
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in the first place .” Id. at 267-68 (em phasis added). The Court consi dered the forum to be a designated publi c forum, applied strict scrutiny, and struck down the regulation. Id. at 270 & 277.
In this case, the Sch ool District created a forum generally open “for use by certain speakers,” thereby creating a fo rum for the “non-curricular, personal” speech of its teacher s. And because Def endants singled out Plaintiff’s expression for exclusion from this forum based not only on its content (which is impermissible), but its viewpoint (which is fatal), this court should a ffirm the decision below.
“At the opposi te end of the fora sp ectrum is the nonpubl ic forum. The nonpublic forum is ‘[a]ny publ ic property that is not by tradi tion or designation a forum for public communication.’” Flint, 488 F.3d at 830 (citations omitted). In a nonpublic forum, government restrictions are subjected to less-exacting judicial scrutiny. There a governm ent may restrict free sp eech if it acts reasonably and does not suppress expression merely because public officials oppose the speaker’s view. Id. (citations omitted).
This Circuit recognizes a “lim ited public forum” as a subcat egory of the designated public forum. See id. at 830-31. A “limited public forum” is “a type of nonpublic forum that the government has inte ntionally opened to certain groups or to certain topics.” Id. at 831. “Once a government has opened a limited forum, it
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must respect the lawful bou ndaries it has itself set .”35 Id. at 831 (quoting Rosenberger v. Rect or & Visitors of Univ. of Va. , 515 U.S. 819, 829 (1995)) (internal quotations and punctuation omitted) (emphasis added). Accordingly, in a limited public forum “the [governm ent] may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of its viewpoint.” Flint, 488 F.3d at 829 (citations and quotations omitted).
Here, the undisputed evidence shows that pursuant to a long-standing policy, practice, and/or cust om, the School Distri ct created, at a minim um, a “lim ited public forum” that is open for use by te achers, including Plaintiff, to express a variety of messages, including personal, non-curricular messages. Pursuant to t his policy, practice, and/or custom, teachers displayed and continue to display on their classroom walls messages that reflec t the individual te acher’s personality, opinions, and values with regard to a wi de range of subject matter, including controversial social and political concern s. See generally New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 130 (2d Cir. 1998) (concluding that the advertising space on the outside of buses was a public forum where the transit
35 Certainly, as noted previously, if Defen dants wanted to take the draconian step of removing all personal expressive ite ms from the classroom wall s, thereby closing the forum to all personal, non-curricular speech, it could do so. But once it has created thi s forum, it cannot pick and choose which messages are acceptable and which are not based on viewpoint.
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authority permitted “political and other non-commercial advertising generally”); United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341, 355 (6t h Cir. 1998) (c oncluding that the advertising space on a public bus system wa s a public forum and stating that “[a]cceptance of political and public-issue advertisem ents, which by their very nature generate conflict, signals a willingness on the part of the government to open the property to controversial speech”); Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985) (same). Permissible subject matter in this forum include patriotic messages, hist orical messages, inspirational messages, religious messages, and messages regarding the foundatio ns of our Nation, am ong others (such as gay right s, global warming, and anti-wa r messages). Pursuant to this policy, practice, and/or custom , teachers have discretion and control over the messages they wish to convey in this forum.
Thus, a forum analy sis is the proper approach to take based on the fa cts of this case. And based on this analysis, th e School District created, at a minimum, a limited public forum for the pe rsonal, non-curricular speech of its teach ers. Thus, Defendants’ viewpoint-based restrictio n of Plaintiff’s speech cannot survive constitutional scrutiny.
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C. Defendants’ Speech Restriction Violates the First Amendment. 1. Defendants’ Speech Restriction Is Viewpoint-Based.
Viewpoint discrimination is prohi bited in all forums because it is an egregious form of content discrimination. See Rosenberger v. Rector & Visitors of the Univ. of Va. , 515 U.S. 819, 829 (1995)). Pursuant to controlling case law, if certain speech “fall[s] w ithin an acceptable subject matter otherwise included i n the forum, the State may not legitimatel y exclude it from the forum based on the viewpoint of the speaker.” Cogswell v. City of Seattle, 347 F.3d 809, 815 (9th Cir. 2003). Viewpoint discrimination occurs when the government “denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Cornelius, 473 U.S. at 806.
Because Defendants singled out Plain tiff’s speech based on his viewpoint, Defendants’ speech restriction cannot survive constitutiona l scrutiny. See also Rosenberger, 515 U.S. at 819; Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Good News Club v. Milford Cent. Sch. , 533 U.S. 98, 107-08 (2001); Faith Center Church Evangelis tic Ministries v. Glover , 480 F.3d 891 (9th Cir. 2007); Truth v. Kent Sch. Dist. , 524 F.3d 957, 973 (9t h Cir. 2008) (observing that in a public high school limited public forum “where restriction t o the forum is based solely on . . . religious viewpoint, the restriction is invalid”).
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Indeed, “[r]estrictions on free expression in a nonpublic forum are constitutional only if the distinctions dr awn are (1) ‘reasonable in light of the purpose served by the forum ’ and (2) ‘viewpoint neutral.’” Brown v. California Dep’t of Transp. , 321 F.3d 1217, 1222 (9th Cir. 2003) (quoting Cornelius, 473 U.S. at 806); Perry, 460 U.S. at 46 (stati ng that speech restrictions in a nonpublic forum must be reasonable and viewpoint neutral)).
As noted previously, Defendants’ sp eech restriction fails the viewpoint neutrality prong, and is thus unc onstitutional for that reason alone. 36 Nonetheless, it also fails the “reasonableness” prong.
2. Defendants’ Speech Restriction Is Unreasonable. The “reasonableness” prong “focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated.” Brown, 321 F.3d at 1222 (internal quotations and citation omitted). Here, Plaintiff’s speech did not disrupt school work, it di d not cause m aterial disorder or interference in the classroom, and it did not interfere with his math instruction or his responsibilities as a teacher. Defendants’ order to rem ove the banners was not curricul um related. Plaintiff’s banners were not displayed as pa rt of his official duties as a teacher, nor
36 This Circuit has also “incorporated ‘viewpoint neutrality’ analysis into nonpublic forum, school-sponsored speech cases . . . .” Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1010 (9th Cir. 2000) (citing Planned Parenthood v. Clark County Sch. Dist., 941 F.2d 817, 828 n. 19, 829-30 (9th Cir. 1991)).
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were they part of his math cu rriculum, which he continues to teach today. The banners have never prevented Plaint iff from teaching his math curriculum, nor have they limited him in any way in the teach ing of his classes. In fact, Plaintiff was and continues t o be one of the highest rated math teachers at Westview High School.
Defendants cannot readily allow personal posters of rock bands and sports teams, personal posters promoting a particular viewpoint on controversial political issues such as gay rights or gl obal warming, large (35’ t o 40’) displays of sacred Tibetan prayer flags, and a host of other displays and personal viewpoints, but then prohibit Plaintiff’s patriotic banners, whic h were displayed without objection for 25 years, without running afoul of the First Amendment.
In sum, whether the classroom walls are a “designated public forum,” a “limited public forum ,” or a “nonpublic forum” it makes little difference. Defendants’ viewpoint-based restriction on Plaintiff’s speech violates the First Amendment. III. Pickering/Berry/Garcetti/Eng Do No t Justify De fendants’ Speech
Restriction. Defendants improperly eschew any forum analysis in favor of applyi ng the “balancing test” set forth in Pickering v. Board of Educ., 391 U.S. 563 (1968), Berry v. Department of Soc. Serv. , 447 F.3d 642 (9th Cir. 2006), and Garcetti v.
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Ceballos, 547 U.S. 410 (2006). 37 Defend ants also argue that the “five-part Eng
test” set forth in Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009), which is little
more than the application of the Pickering balancing test in the context of a retaliation case, should apply.38 Not only is this analysis error, as noted previously,
but these cases are inapplicable here because none of them address a si tuation in
which the governm ent opens a forum for certain expressive activity, but then
prohibits a speaker from expressing an appropriate message in the forum based on
his viewpoint, as in this case.
Indeed, this Circuit did not rely on the Pickering balancing test to reach its
conclusion in Downs v. Los Angeles Unified Sch. Dist. , 228 F.3d 1003, 1010 (9t h
Cir. 2000), a case invol ving teacher speech. While distinguishable on its facts,
Downs demonstrates the constitutional violation at issue here. In Downs, the court
upheld a school district’s restriction on a teacher’s ability to change the viewpoint
expressed by the district on its “Gay and Lesbian Awareness” bulletin boards. The
37 The Pickering test essentially seeks to balance “the interests of the [em ployee], as a citizen, in commenting upon m atters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Connick v. Myers , 461 U.S. 138, 140 (1983) (quoting Pickering, 391 U.S. at 568). 38 If this court is inclined to apply the Pickering balancing test and consider various factors in its analysis, the court should follow the approach taken by the district court in its alternative analysis of Plaintiff’s free speech cl aim under Pickering. See infra note 40; (R-66: Op. at 22; ER (Vol. 1) at 22). Consideration of the facts of this case under Pickering yields the sa me result: Defendants violated Plaintiff’s First Amendment right to freedom of speech.
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court concluded that the bulletin boards in question were a nonpublic forum and that the speech in question was governme nt speech made pursuant to a specific school district policy related to the “G ay and Lesbian Awareness Month.” The court stated, “We do not face an exam ple of the governm ent opening up a forum for either unlimited or limited public discussion,” and explicitly found that “[t]he bulletin boards served as an expressive vehicle for the school board’s policy of ‘Educating for Diversity.’” Id. at 1012. Accordingl y, the court he ld that the speech was government speech; therefore, viewpoint neutrality did not apply. Id.
Here, there is no dispute that the speech at issue is Plaintiff’s personal, noncurricular speech, so viewpoint neutrality does apply. Indeed, at a mini mum, Downs compels this court to conduct a forum analysis. And based on the fact that Defendants’ restriction was viewpoint based, Downs compels the court to affirm the decision below.
Similarly, as noted previously, Defendants’ reliance on Berry v. Department of Soc. Serv., 447 F.3d 642 (9t h Cir. 2006), is m isplaced. Defendants im properly criticize the district court for relying on forum analysis cases that they claim do not involve a public employer’s limitation on an employee’s speech. However, Berry, which is an “emplo yee speech” case, di d use a forum anal ysis when deciding whether or not the em ployer’s restriction on the use of its facilities for the
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employee’s speech v iolated the First Amendment. 39 Id. at 652-54. Because this
case involves the restriction on Plaintif f’s use of governm ent facilities for his
personal, non-curricular speech, Berry confirms that a forum analysis is proper.
Moreover, in its latest application of the Pickering test, the U.S. Supreme
Court in Garcetti expressly stated that its analysis did not apply in a school setting.
Garcetti, 547 U.S. at 425.
39 The court applied t he Pickering balancing test “t o the Department’s restriction on Mr. Berry’s speech with cli ents.” Berry, 447 F.3d at 652-54. And with scant analysis, the court upheld the restriction on the plaintiff’s “Happy Birthday Jesus” sign and t he display of his Bible in the cubicle that he uses to counsel clients, claiming “that the Departm ent’s restrictions on the display of religious item s are reasonable under the Pickering balancing test.” Id. at 651. Consequently, t he court treated the displays as an extens ion of the plaintiff’s speech with the Department’s clients.
Unlike the present case, in Berry there was no evidence or argument that the government created a forum for the cubicle displays. And the court considered the restriction to be one based on subject matter, not viewpoint. In this case, Plaintiff’s speech was pe rsonal, non-curricular speech . His banners were displayed pursuant to a long-standing policy, practice, and/or custom of allowing teachers to express pers onal, non-curricular messages on their classroom walls— a forum opened by Defendants f or this purpose . The banners were not displayed pursuant to any of his official duties as a teacher. He did not use them during any classroom session or period of instruction. They were not disc ussed or studied in any of his classes. They caused no material disruption or di sorder in the school. They did not interfere with the teaching of his classes. They were not expressing a message on behalf of the School Distri ct. And Defendants’ restriction was viewpoint based. Neither Pickering nor Berry apply to these facts. Moreover, as the district court properly noted, “The po tential for an Establishm ent Clause issue was greater there, than here, as the employee in Berry, unlike Johnson, said he would share his faith and pray with agency customers.” (R-66: Op. at 23; ER (Vol. 1) at 23).
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In Lee v. York County Sch. Divs. , 484 F.3d 687 (4t h Cir. 2007), a case that Defendants claim is “most on point,” (Defs.’ Br. at 28), the Fourth Circuit refused to apply Garcetti and instead applied Pickering in light of circuit preced ent. Most important for purposes of this case is the f act that the Fourth Circuit noted that if the teacher’s speech at issue was not curriculum related—that is, if the speech was personal and non-curricular as in this case— then school officials could not restrict the speech unless it “materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school.” Lee, 484 F.3d at 694, n.10 (quoting Tinker, 393 U.S. at 509). Moreover, in Lee, unlike in this case, th e record did not overwhelmingly support the conclusion that the school di strict created a forum for the teach er’s speech and that the sc hool district’s restriction was viewpoint based. In sum, Lee is of little help to Defendants.
Nevertheless, even if this court were to apply a Pickering balancing test to the facts of this case, Defendants’ speech restriction would still violate the First Amendment.40 The only justification offered by Defe ndants for the restriction is
40 In additi on to conducting a forum analysis, the district also conducted an analysis under Pickering, properly concluding that the balance tipped in favor of protecting Plaintiff’s speech. ( R-66: Op. at 22; ER (Vol. 1) at 22). In finding that the balance weighed in favor of Plaintiff, the district court noted that (1) there is no evidence that Plaintiff’s working relations hip with the School Board or principal deteriorated; rather, the record shows th at Plaintiff’s superiors were favorably impressed with the professi onal manner in which Plaintiff responded to their concerns; (2) the evidence cl early demonstrates that the banners had no effect on
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that they believe the Establishment Clause requires it. This claim does not survive
even modest scrutiny. As the district court properly observed: “That God places
prominently in our Nation’s history does not create an Establishment Cl ause
violation requiring curettage and disi nfectant for Johnson’s public high school
classroom walls. It is a matter of hist orical fact that o ur institutions and
government actors have in pas t and present times given place to a supreme God.”
(R-66: Op. at 8; ER (Vol. 1) at 8).
Indeed, Defendants assert that the Constitution requires them to ban
Plaintiff’s personal patriotic speech, which Plaintiff expressed without com plaint for 25 years,41 because of its viewpoint, while a science teacher’s Buddhist speech is acceptable.42 This assertion is untenable and shoul d be rejected. See, e.g.,
Plaintiff’s performance of his daily duties in the classroom; in fact, Plaintiff is held in high regard for his performance as a math teacher ; and (3) there is no evidence to suggest that Plaintiff’s banners negatively affected th e regular operations of the schools where Plaintiff taught; t o the contrary, the undisput ed evidence demonstrates that the banners caused no i ssues for over two decad es. In sum, the balance weighs heavily in favor of protec ting Plaintiff’s speech. (R-66: Op. at 2223; ER (Vol. 1) at 22-23) (citi ng factors set forth i n Nicholson v. Board of Educ. Torrance Unified Sch. Dist., 682 F.2d 858, 865 (9th Cir. 1982)). 41 See Van Orden v. Perry , 545 U.S. 677, 699, 702 (2005) (Breyer, J., concurring) (finding the fact that the Ten Comma ndments monument was on di splay for 40 years without com plaint “suggest[s] more strongly than can any set of form ulaic tests that few individuals, whatever thei r system of beliefs, are likely to have understood the monument” as promoting religion). 42 Defendants make the outlandish claim th at Plaintiff’s patriotic mes sages are impermissible, but the 35- to 40-foot di splay of sacred Tibetan prayer flags by a science teacher are permissi ble because the prayer flag s are decorative and can b e
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Widmar, 454 U.S. at 273 (rejecting Es tablishment Clause “defense” for speech restriction); Rosenberger, 515 U.S. at 841-42 (same); Tucker v. California Dep’t of Educ., 97 F.3d 1204, 1212-13 (9th Cir. 1996 ) (rejecting Establishment Clause “defense” for employee speech restricti on). As discussed m ore fully below, Defendants’ speech restriction, which di sfavors “Judeo-Christian” speech, but favors Buddhist and anti-religion speech, violates the Establishment Clause.
At the end of the day, Defendants ar e not interested in balancing any interests or closely analyzing t he significant First Amendment interests at stake. They simply—and incorrectly—label Pl aintiff’s speech as “religious” and then erroneously conclude that the First Amendment (Free Speech Clause) not onl y allows their viewpoi nt restriction, but it (Establishment Clau se) requires it. But see Board of Educ. v. Mergens , 496 U.S. 226, 250 (1990) (O’Connor, J.) (noti ng the “crucial difference b etween government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the
used to discuss “the acco mplishment of an amazing goal,” like reaching Mt. Everest’s summit. (Defs.’ Br. at 54). But why is it that Plaintiff’s banners are not similarly decorative? And why is it th at Plaintiff’s banners are incapable of inspiring people to be patriotic and to love their country? Moreover, it is insult ing the way Defendant s seek to mini mize the re ligious nature of the Tibetan prayer flags and the role religion played in the lives and acco mplishments of Mahat ma Ghandi, Malcolm X, and Martin Luther Ki ng, while at the sam e time dism issing the historic nature of Plainti ff’s banners. (Defs. Br. at 53-55 ). While Defendants may not like the fact that our Nation was founded by religious people, they can’t change that fact by fiat.
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Free Speech and Free Exer cise Clauses prot ect”). But si mply claiming that the Establishment Clause requires this speech restriction does not make it so. Indeed, it is time for the courts to put an end to this reflexive (and thinly veiled hostility toward Christianity) response by government officials to anything that is remotely related to (the Christian) religion. Defendants’ reli ance on this shopworn excuse to ban the display of Plaintiff’s well-known , historic patriotic phrases is patently incorrect. See A.C.L.U. v. Mercer County, 432 F.3d 624, 638-39 (6th Cir. 2005) (“[T]he ACLU mak es repeated reference to ‘the separati on of church and state.’ This extra-constitutional construct has grown tiresome. The First Amend ment does not dem and a wall of separation between church and state. Our Nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion.”) (citations omitted).
In fact, the School District itself c ould use som e education regarding the First Amendment. As this Circuit stated in Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044, 1055 (9th Cir. 2003), “We agree with the Seventh Circuit that the desirable approach is not for sc hools to throw up their hands because of the possible m isconceptions about endorsem ent of religion, but that instead it is ‘far better to teach students a bout the First Amendment, about the difference between private and publ ic action, about w hy we tolerate divergent vi ews. The school’s proper response is to educate the audience rather than squelch the
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speaker.’” (quoting Hedges v. Wauconda Cmty. United Sch. Dist. No. 118 , 9 F.3d 1295, 1299 (7th Cir. 1993)) (internal punctuation omitted). IV. Defendants’ Restriction Violates the Establishment Clause.
Defendants’ anemic evaluation of Plai ntiff’s Establishment Clause clai m demonstrates a mis apprehension of the material facts and relevant law; a misapprehension that evidently guided th eir illicit decision to ban Plaintiff’s speech in the first instance.
In 1952, the U.S. Supr eme Court acknowledged the following hist orical reality: “We are a religious people w hose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of reli gion’s role in American life. Exam ples of this historical acknowledgment include Executive Orders recognizing relig iously grounded National Holidays, such as Christm as and Thanksgiving, Congress directing the President to proclaim a Na tional Day of Prayer each year, and the printing on our currency of the national motto, “In God We Trust.” As the Court acknowledged in Lynch v. Donnelly, 465 U.S. 668, 677-78 (1984):
One cannot look at even this brief resume [of historical exam ples of public religious expression] without finding that our history is pervaded by expressions of religious beliefs. . . . Equally pervasi ve is the evidence of acco mmodation of all fait hs and all forms of religious expression, and hostility toward no ne. Through this acco mmodation, as Justice Douglas observed, govern mental action has “foll ow[ed] the
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best of our traditi ons” and “respect [ed] the religious nature of our people.” (quoting Zorach, 343 U.S. at 314).

Recognition of t he role of God in ou r Nation’s hi story and herit age is

consistently reflected in U.S. Supr eme Court decisions. The Court has

acknowledged, for exam ple, that religion has been closely identified with our

history and government, and that the history of man is inseparable from the history

of religion. Exam ples of patrioti c invocations of God and offici

al

acknowledgments of religion’s role in ou r Nation’s history abound. As Justice

O’Connor observed, “It is unsurprising that a Nation founded by religious refugees

and dedicated to religious freedom should find references to divi nity in its

symbols, songs, mottoes, and oaths.” Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1, 35-36 (2004) (O’Connor, J., concurring).

Efforts to suppress this recognition a nd historical acknowledgment are the

antithesis of the value of religious tolera nce that u nderlies the United States and

California Constitutions. And the classr oom is peculiarly the “mar ketplace of

ideas.” As a result, the First Amendment does not tolerate governm ental policies,

practices, and/or customs that cast a pall of orthodoxy over t he classroom, such as

Defendants’ restriction, which prohibits Plaintiff from displaying his banners based

on the “particular sectarian viewpoint” conveyed by his patriotic speech.

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A. Defendants’ Restriction Disfavors Religion. Throughout its decisions, the U.S. Supreme Court has consistently described the Establishment Clause as forbidding not only state action motivated by a desir e to promote or “advance” religion, see, e.g., County of A llegheny v. A.C.L.U., 492 U.S. 573, 592 (1989) , but also actions that tend to “disapprove” of, “i nhibit,” or evince “hostility” toward religion. See Edwards v. Aguillard , 482 U.S. 578, 585 (1987); Lynch, 465 U.S. at 673; Committee for Pub. Educ. & Religious Li berty v. Nyquist, 413 U.S. 756, 788 (1973). As the Court noted i n Epperson v. Arkansas, 393 U.S. 97, 104 (1968), “The First Amendment mandates governmental neutrality between religion and religion, and between religio n and nonreligion.” Indeed, even subtle departures from neutrality are prohibited. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). In School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), the Court stated, “We agree of course that the State may not establish a religion of secularism in the sense of affirmativel y opposing or showing hostil ity to religion, thus preferring those who believe in no religion over those who do believe.” Id. at 225 (internal quotations and citation om itted). As Justice Breyer stated in his concurrence in Van Orden v. Perry , 545 U.S. 677, 699 (2005), “[T]he Establishment Clause does not com pel the government to purge from the public
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sphere all that in any way pa rtakes of the religious. Such absolutism is not only inconsistent with our national traditions, but would also tend to prom ote the kind of social conflict the Establishment Clause seeks to avoid.” See also Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 532 (“In our Esta blishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.”).
Thus, a restriction t hat disfavors “re ligion in general”—or worse, one that disfavors “a particular sectarian viewpoint,” such as the restriction at issue here— violates the neutrality mandated by the Establishment Clause.
B. Defendants’ Restriction Disfavors a Particular Religion. In addition to m andating neutrality toward religion in ge neral, the First Amendment also forbids hostility aimed at a specific faith (Christianity), particularly while favoring another (Buddhi sm). “The cleares t command of the Establishment Clause is tha t one reli gious denomination cannot be officially preferred over anot her.” Larson v. Val ente, 456 U.S. 228, 244 (1982); s ee also County of Allegheny , 492 U.S. at 608-09 (requiri ng “‘strict sc rutiny’ of practices suggesting ‘a denom inational preference’”) (emphasis added); Church of the Lukumi Babalu Aye, Inc, 508 U.S. at 532 (“[The Establishm ent Clause] forbids an official purpose to disapprove of a parti cular religion.”); Epperson, 393 U.S. at
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103-04 (stating that the government “ may not be hostile to any religion”); Lynch, 465 U.S. at 673 (“[The Constitution] forbids hostility toward any” religion.).
Remarkably, even though Plaintiff’s sp eech expresses messages that have historical significance and contain no religious text, Defendants censored the speech because they claimed that th e banners conveyed an im permissible “Christian” viewpoint (while permitting Buddhist prayer flags, no less). Leaving aside the inaccuracy of that claim, 43 Defendants violated the Establishment Clause by singling out Plaintiff’s speech for disfavored treatment because they believed it conveyed “a particular sectarian viewpoint.”
C. Defendants’ Restriction Violates Lemon and Its Modifications. Defendants’ speech restriction, which disfavored “a particular sectarian viewpoint,” violates the Establishment Clause as to its purpose and effect. And it creates an impermissible entanglement. See Lemon v. Kurtzman, 403 U.S. 602 (1971).
1. The Purpose and Effect of Defendants’ Restriction. “The purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or di sapprove of re ligion. The effect prong asks whether,
43 Plaintiff’s banners contain hi storical, patriotic phrases and slogans central to our Nation’s history and herita ge; the banners do not cont ain passages from Sacred Scripture or other religious texts. See, e.g., Lynch, 465 U.S. at 677-78; Elk Grove Unified Sch. Dist. , 542 U.S. at 35-36 (O ’Connor, J., concurring); ( see also R-66: Op. at 8; ER (Vol. 1) at 8).
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irrespective of gove rnment’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the cha llenged practice invalid.” See Lynch, 465 U.S. at 690 (O’Connor J., concurring).
a. Impermissible Purpose. “While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” Edwards, 482 U.S. at 586-87. The secula r purpose requirement “rem inds government that when it acts it should do so wit hout endorsing [or disapprovi ng of] a particular religious be lief or practice . . . .” Wallace v. Jaffree, 472 U.S. 38, 75-76 (1985). “The eyes that look to pu rpose belong to an objective observer, one who takes account of the tra ditional external signs that show up in the text, legislative history, and im plementation of th e statute or co mparable official act.” McCreary County v. A.C.L.U. , 545 U.S. 844, 862 (2005) (internal quotations omitted). In this case, Defendants’ stated purpos e for their official act of rem oving Plaintiff’s banners was to prohibit sp eech that, in their view, conveyed a “particular sectarian viewpoint,” that be ing a “Christian” viewpoint. Thi s purpose is not compelled by the Establishment Clause; rather, it is prohibited by it.
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b. Impermissible Effect. The “effect” of Defendants’ restricti on, regardless of Defendants’ all eged “purpose” for enforcing it, conveys a messa ge of disapproval of religion (and the Christian religion in particular) in vi olation of the Establishment Clause. See Lynch, 465 U.S. at 690 (O’Connor J., concurring) (“The effect prong asks whether, irrespective of gove rnment’s actual purpose, the practice under review in fact conveys a message of endorse ment or disapproval.”). As the U.S. Supreme Court explained, when evaluating the e ffect of governm ent action under the Establishment Clause, courts must ascer tain whether the challenged action is “sufficiently likely to be perceived ” as a disapproval of religion. County of Allegheny, 492 U.S. at 597 (citations omitted) (emphasis added); Santa Fe Indep. Sch. Dist. v. Do e, 530 U.S. 290, 307, n. 21 (2000) (“[T] he Establishment Clause forbids a State to h ide behind the app lication of formally neutral criteria and remain studiously oblivious to the effects of its actions.”). The clear ef fect of the speech restriction is to show disappr oval of religion in violation of the Establishment Clause.
2. Defendants’ Restriction Fosters an Excessive Entanglement. The third prong of the Lemon test asks whether the restriction at issue excessively entangles government with religion. Lemon, 403 U.S. at 612-13. In Widmar v. Vincent, the Court explained: “[T] he University would risk greater
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‘entanglement’ by attem pting to enforc e its exclusion of ‘re ligious worship’ and ‘religious speech.’ Initially, the University would need to deter mine which words and activities fall wi thin ‘religious worshi p and re ligious teaching.’ This alone could prove an impossible task in an ag e where many and various beliefs m eet the constitutional definition of religion.” Widmar, 454 U.S. at 272, n.11 (internal quotations and citations om itted). Accord ingly, Defendants’ attem pt to exclude speech expressing a “Christian” or “Judeo /Christian” viewpoint (while per mitting “Buddhist” speech) creates “excessive en tanglement” in violation of the Establishment Clause. V. Defendants Violated the California Constitution.
A. State Free Speech Claim. Article 1, section 2 of the California Constitution generally provides broader protection for the exercise of free speech rights than the First Amendment. Robins v. Pruneyard Shopping Ctr. , 23 Cal. 3d 899 (1979). Ho wever, federal law is typically followed for free speech claims arising in a school setting. See California Teachers Ass’n v. Governing Bd. of San Diego Unified Sch. Dist., 45 Cal. App. 4th 1383, 1391 (1996) (“[W]e find the federal authori ties which discuss First Amendment principles in the fairly unique context of school regulation of curricular activities accurat ely weigh th e competing interests of school administrators, teachers and students.”). Thus, for the reasons stated with regard to
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Plaintiff’s First Amend ment claim, Defendants have sim ilarly violated the California Constitution.
B. California Establishment Clause and No Preference Clause Violations. 1. California Establishment Clause.
California courts generally adopt the federal Establishment Clause analysis when considering cases under t he California Constitution’s similar provision. See Paulson v. Abdelnour, 145 Cal. App. 4th 400, 420 (2006) (“The construction given by California courts to the establishm ent clause of article I, sec tion 4, is guided by decisions of the United States Supreme Court.”). Accordingly, the previous analysis under the federal Establishment Clause demonstrates why Defendants also violated the California Constitution.
2. California No Preference Clause. This Circuit has interpreted the Calif ornia No Preference Cl ause “to stand for the proposi tion that not only m ay a government body not prefer one religi on over another, it may not appear to be acting preferentially.” Ellis v. City of La Mesa, 990 F.2d 1518, 1524 (9th Cir. 1993) (cita tion and quotations om itted). In this case, it is evident that Defendants’ restriction, which singled out “Christian” or “Judeo/Christian” speech for disfavor ed treatment while permitting speech conveying other religious views, including anti-religious views, violates California’s No Preference Clause.
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VI. Defendants’ Viewpoint Restriction Violates the Equal Protection Clause. The relevant principle of law was articu lated in Police Dept. of the City of
Chicago v. Mosley, 408 U.S. 92 (1972). In Mosley, the Court struck down a city ordinance that prohibited all picketing within 150 feet of a school, except peaceful picketing of any school involved in a labor dispute. The Court stated, “[U]nder the Equal Protection Clause, not to m ention the First Amendm ent itself, government may not grant the use of a forum to pe ople whose views it finds accep table, but deny use to those wishing to express less favored or more controversial views.” Id. at 96; see also Carey v. Brown , 447 U.S. 455, 461-62 (198 0). Here, Defendants opened a forum for teacher expression. Having maintained this forum for m any decades, Defendants violated Plaintiff’s rights when they prohibited his speech based on the viewpoint of his message, while permitting other teachers to continue their speech in the same forum unfettered. VII. The Individual Defendants Do Not Enjoy Qualified Immunity.
As an initial matter, qualif ied immunity does not protect a defendant against claims for declaratory and injunctive relief. County of Sacramento v. Lewis , 523 U.S. 833, 841, n.5 (1998) (not ing that qualified immunity is unavailable “in a suit to enjoin future conduct [or] in an action against a m unicipality”); Presbyterian Church (U.S.A.) v. United States , 870 F.2d 518, 527 (9th Ci r. 1989) (“Qualified immunity . . . does not bar actions for declaratory or injunctive relief.”).
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Nonetheless, “[w]hen government officials abuse their offices, ‘action[s] for damages may offer the only realistic av enue for vindication of constitutional guarantees.’” Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citation omitted).
In Harlow v. Fitzgerald , 457 U.S. 800 (1982), the Court held that government officials are protected from personal liability for civil damages only so long as t heir conduct does not viol ate “‘clearly established’ statutory or constitutional rights of which a r easonable person would have known.” Id. at 818. “This is not to say that an official ac tion is protected by qualified immunity unless the very action in question has been previous ly held unlawful, but i t is to say t hat in light of pre-existi ng law the unl awfulness must be apparent.” Anderson, 483 U.S. at 640 (citation om itted); Osolinski v. Kane, 92 F.3d 934, 936 (9t h Cir. 1996) (“Absent binding precedent, we look to a ll available decisional law, including the law of other circuits and distric t courts, to determine whether the right was clearly established. We also evaluate the likeli hood that this circuit or the Supreme Court would have reached the same result.”); see also Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) (“[W] hen ‘the defendants’ conduct is so pa tently violative of the constitutional right that reasonable officials would know without gui dance from the courts’ t hat the action was unconstitutional, closely analogous preexisting case law is not requi red to show that the law is clearly established.”) (citation omitted).
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In their brief, Defendants m ake the truly remarkable claim that “[m]ost people familiar with the cases would reas onably conclude that Johnson’s banners were improper advocacy of a religion, a nd impermissible in the classroom during class.” ( Defs.’ Br. at 60). Yet, the ir refutable evidence shows that for 25 years Plaintiff displayed his banners without a single com plaint. And during these 25 years, 7 different school principals, numerous school board mem bers, superintendents, assistant superinte ndents, over 4,000 st udents and several thousand parents have been in his classrooms where the banners were displayed.
Indeed, Defendants’ arguments are duplicitous. On one hand they claim that Plaintiff’s banners were so large and the display of the words “God” and “Creator” were so prominent that “no st udent with normal vision seated at any desk in that classroom would fail to read the text of Johnson’s banners from their seat.” (Defs. Br. at 53). And on the other hand, Defe ndants claim that the banners were so discrete that their existence was not brought to the attention of Plaintiff’s principal, Defendant Kastner, until the fall of 200 6—25 years after they had been posted— when Defendant Kastner a llegedly “wondered what they were talking about.” (Defs.’ Br. at 9; see also Defs. Br. at 42 ( asserting that “[t]here is no evidence that the banners were seen by a School adm inistrator until brought to the a ttention of Principal Kastner by a teacher at Westview High”)).
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Furthermore, the School District was aware that a s cience teacher displayed Tibetan prayer flags in her classroom during the course of the controversy surrounding Plaintiff’s patriotic banners; yet, no school offi cial objected to the science teacher’s religious display (then or now). Indeed, these prayer flags, as well as the numerous other documented ite ms expressing “partisan or sectarian viewpoints,” were still on display as late as April 2009, whe n Plaintiff conducted his court-ordered inspection of the district’s high school classrooms.
In sum, Plaintiff’s right to engage in his spe ech free from viewpoint discrimination was clearly established. Similarly, it was clearly established in January 2007, that t he government may not prefer one religion over another (or anti-religion over religion) without r unning afoul of t he United States and California Constitutions. Consequently, the individual defendants do not enjoy qualified immunity, and Plaintiff is entitled to nominal damages as a matter of law. See Carey v. Piphus , 435 U.S. 247, 266-67 (1978); Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991).
CONCLUSION For the foregoing reasons, this court shoul d affirm the district court’s decision.
STATEMENT OF RELATED CASES Plaintiff is not aware of any related cases pending in this court.
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Respectfully THOMAS

submitted, MORE LAW CENTER

By:

/s/ Robert J. Muise

Robert J. Muise, Esq.

Attorneys for Plaintiff-Appellee

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CERTIFICATE OF COMPLIANCE I certify that pursuant to Fed. R. App. P. 32(a)(7)(c) and Circuit Rule 32-1, the foregoing Brief is pr oportionally spaced, has a t ypeface of 14 points Times New Roman, and contains 13,743 words, excluding those sections identified in Fed. R. App. P. 32(a)(7)(B)(iii).
/s/ Robert J. Muise Robert J. Muise, Esq. Attorney for Plaintiff-Appellee
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CERTIFICATE OF SERVICE I hereby certify that on August 30, 2010, I electronically filed the foregoing with the Clerk of the Court for the Unite d States Court of Appeals for t he Ninth Circuit by using t he appellate CM/ECF system. Partic ipants in the cas e who are registered CM/ECF users will be served by the appellate CM/ECF system . I further certify that all participants in this case are registered CM/ECF users.
/s/ Robert J. Muise Robert J. Muise, Esq. Attorney for Plaintiff-Appellee
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Richard Thompson

President and

Counsel

Admitted in JVlJt~J,u"'uu

August 9, 2010
VIA U.S. MAIL & EMAIL
Paul V. Carelli, IV STUTZ ARTIANO SHINOFF & HOLTZ 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106-6113

Re: Bradley Johnson v. Poway Unified School District, et aL U.S. District Court Case No. 07-0783-BEN (NLS) U.S. Court of Appeals Case No. 10-55445

Dear Mr. Carelli:

The clerk for the U.S. Court of Appeals for the Ninth Circuit granted Plaintiff-Appellee an extension of 14 days to file the answering brief (appellee's brief). That brief is now due on or before August 30, 2010. Consequently, per the clerk's instruction, your optional reply brief is due within 14 days of service of the appellee's brief.

Sincerely,

THOMAS MORE LAW CENTER

~

~

Robert J. Muise, Esq.*

Counsel for Plaintiff-Appellee

24 Frank Lloyd Wright Drive • P.O. Box 393 • Ann Arbor, Michigan 48106 • (734) 827-2001 • Fax: (734) 930-7160

 
 Case: 10-55445 09/27/2010 Page: 1 of 39 ID: 7488730 DktEntry: 23-1
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ________________________________________
Docket No. 10-55445 ________________________________________
BRADLEY R. JOHNSON Plaintiff/Appellee,
v.
POWAY UNIFIED SCHOOL DISTRICT, et al. Defendants/Appellants.
________________________________________
On Appeal from the United States District Court Southern District of California - San Diego Case No. 3:07-cv-00783-BEN-WVG Honorable Roger T. Benitez, District Judge
________________________________________
APPELLANTS’ REPLY BRIEF ________________________________________
STUTZ ARTIANO SHINOFF & HOLTZ, APC Daniel R. Shinoff (SBN 99129) Jack M. Sleeth, Jr. (SBN 108638) Paul V. Carelli, IV (SBN 190773)
2488 Historic Decatur Road, Suite 200 San Diego, CA 92106-6113
Tel: (619) 232-3122/Fax: (619) 232-3264 Attorneys for Defendants/Appellants
Poway Unified School District; Jeff Mangum; Linda Vanderveen; Andrew Patapow; Todd Gutschow; Penny Ranftle; Dr. Donald A. Phillips;
William R. Chiment; and Dawn Kastner

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TABLE OF CONTENTS Page(s)
I. ARGUMENTS ON REPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. The Main Cases Cited By Johnson Are Not On Point. . . . . . . . . . . . . 1 B. The Forum Test Applies to “Protected” Speech, But Under Eng, Johnson’s Speech is Not “Protected,” So the Forum Analysis Is Not Appropriate. . . . . . . . . . . . . . . . . . . . . . . . 4 C. Even if The Forum Test Were to Apply, The School May Use the Establishment Clause as a Defense.. . . . . . . . . . . . . . . 10 D. The School Has Not Taken Inconsistent Positions On What Constitutes “Curricular” Speech; The Legal Sense of the Term “Curricular” is Far Broader Than the Term’s Vernacular Use by School Administrators. . . . . . . . . . . . . . . . . . . . . 12 E. Johnson Failed to Demonstrate an Establishment Clause Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 F. Johnson’s Banners Are Not “Ceremonial Deism” Which Would Constitute an Exception Under the Establishment Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 G. Although the Banners Were Displayed For A Long Time, The Court Should Be Wary of Assigning Constitutional Protections Based Upon Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 H. The Individual Defendants Are Entitled to Qualified Immunity. . . . 21
II. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
-i-

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TABLE OF AUTHORITIES Page(s)
California Statutes California Education Code Section 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 California Education Code Section 220. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Federal Cases A.C.L.U. v. Mercer County,
432 F.3d 624 (6th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Abington School District v. Schempp
374 U.S. 203 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Arizona Life Coal., Inc. v. Stanton
515 F.3d 956 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Berger v. Rensselaer Cent. School Corp.
982 F.2d 1160 (7th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Berry v. Department of Soc. Serv.
447 F.3d 642 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 27 Bethel Sch. Dist. No. 403 v. Fraser
478 U.S. 675 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Bishop v. Aronov
926 F.2d 1066 (11th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Board of Educ. v. Mergens
496 U.S. 226 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-ii-

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TABLE OF AUTHORITIES
Page(s)
Brandenburg v. Ohio 395 U.S. 444 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Brown v. California Dep’t of Transp. 321 F.3d 1217 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3
California Teachers Ass’n v. State Bd. of Educ. 271 F.3d 1141 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Chaplinsky v. New Hampshire 315 U.S. 568 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Cogswell v. City of Seattle 347 F.3d 809 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Cole v. Oroville Union High Sch. Dist. 228 F.3d 1092 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Connick v. Myers 461 U.S. 138 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cornelius v. NAACP Legal Defense & Educ. Fund 473 U.S. 788 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5
Downs v. Los Angeles Unified Sch. Dist. 228 F.3d 1003 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9, 26, 27
Edwards v. Aquillard 107 S. Ct. 2573 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Elk Grove Unified School Dist. v. Newdow 542 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-17
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Page(s)
Eng v. Cooley 552 F.3d 1062 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10
Engel v. Vitale 370 U.S. 421 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 24
Epperson v. Arkansas 89 S. Ct. 266 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Faith Center Church Evangelistic Ministries v. Glover 480 F.3d 891 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Flint v. Dennison 488 F.3d 816 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 5
Garcetti v. Ceballos 547 U.S. 410 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Good News Club v. Milford Cent. Sch. 533 U.S. 98 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10
Grayned v. City of Rockford 408 U.S. 104 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Hazelwood Sch. Dist. v. Kuhlmeier 484 U.S. 260 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6-10
Hedges v. Wauconda Cmty. United Sch. Dist. No. 118 9 F.3d 1295 (7th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Hill v. Colorado 530 U.S. 703 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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Page(s)
Hills v. Scottsdale Unified Sch. Dist. No. 48 329 F.3d 1044 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Keyishian v. Board of Regents of University of State of N.Y. 385 U.S. 589 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist. 508 U.S. 384 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Lassonde v. Pleasanton Unified Sch. Dist. 320 F.3d 979 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Lee v. Weisman 505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 24, 25
Lee v. York County Sch. Div. 484 F.3d 687 (4th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13
Lynch v. Donnelly 465 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Mayer v. Monroe County Community School Corp. 474 F.3d 477 (7th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
McCollum v. Board of Education Dist. 71 U.S. 203 (1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Morse v. Frederick 551 U.S. 393 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 9
New York Magazine v. Metropolitan Transp. Auth. 136 F.3d 123 (2d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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Page(s)
Newdow v. Rio Linda Union School Dist. 597 F.3d 1007 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Newdow v. U.S. Congress 328 F.3d 466 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Nicholson v. Board of Educ. Torrance Unified School Dist. 682 F.2d 858 (9th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Peloza v. Capistrano Unified School District 37 F.3d 517 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 22, 26, 27
Perry Educ. Ass’n v. Perry Local Educators 460 U.S. 37 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3
Pickering v. Board of Education 391 U.S. 563 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5
Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth. 767 F.2d 1225 (7th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Planned Parenthood v. Clark County School District 941 F.2d 817 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Pleasant Grove City, Utah v. Summum 129 S.Ct. 1125 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Prince v. Jacoby 303 F.3d 1074 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Roberts v. Madigan 921 F.2d 1047 (10th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
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Page(s)
Rosenberger v. Rector & Visitors of Univ. of Va. 515 U.S. 819 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
Santa Fe Independent School District v. Doe 530 U.S. 290 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 18
Stone v. Graham 449 U.S. 39 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Texas v. Johnson 491 U.S. 397 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tinker v. Des Moines Independent Community School Dist. 393 U.S. 503 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
Truth v. Kent Sch. Dist. 524 F.3d 957 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tucker v. California Dep’t of Educ. 97 F.3d 1204 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 27
United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth.
163 F.3d 341 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
United States v. Grace 461 U.S. 171 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Van Orden v. Perry 545 U.S. 677 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Veronia School District v. Acton 515 U.S. 646 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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Wallace v. Jaffree 472 U.S. 38 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Walz v. Tax Comm’n of City of New York 397 U.S. 664 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Widmar v. Vincent 454 U.S. 263 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10
Wisconsin v. Yoder 406 U.S. 205 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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I. ARGUMENTS ON REPLY
A. The Main Cases Cited By Johnson Are Not On Point.
The cases that Johnson cites to argue that his speech was protected (Tinker, Morse, Perry, Hill, Grace, Brown, Grayned, Keyishian)1 are not cases involving
teacher-speech, and most of them are not even public employee cases. Appellee’s
Brief, pp. 22-23. And Johnson does not even cite to the primary Ninth Circuit case
addressing the issue at bar — a public-school-teacher speaking in class about religion — which is Peloza v. Capistrano Unified School District, 37 F.3d 517 (1994).2
Moreover, all of the cases that Johnson cites for authority that the classroom
is a public forum do not involve a public-school teachers speaking. See Appellee’s
Brief, pp. 23-30, citing Pickering, Cornelius, Flint, Morse, Bethel, Brandenburg,
1 Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969); Morse v. Frederick, 551 U.S. 393 (2007); Perry Educ. Ass’n v. Perry Local Educators, 460 U.S. 37 (1983); Hill v. Colorado, 530 U.S. 703 (2000); United States v. Grace, 461 U.S. 171 (1983); Brown v. California Dep’t of Transp., 321 F.3d 1217 (9th Cir. 2003); Grayned v. City of Rockford, 408 U.S. 104 (1972); Keyishian v. Board of Regents of University of State of N.Y., 385 U.S. 589 (1967).
2 Curiously, the Peloza case is cited by the School literally on Page One of its Opening Brief, but is absolutely nowhere to be found in Johnson’s brief. Instead, Johnson spends his efforts dancing around this critical case, which is not only discussed at length by Appellants, but also cited by amicus counsel in Johnson’s support, the ACLU, for the proposition a school may regulate a teacher’s speech to prevent violations of the Establishment Clause. (See amicus curiae brief of ACLU, p. 15.)
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Hills, Arizona Life, Berry, Perry, Hazelwood, Widmar, Rosenberger, New York
Magazine, Planned Parenthood, United Food.3 This approach ignores the holding
in Peloza, which held that the concern over an establishment clause violation justifies
a school’s limitation on a teacher’s speech. If Peloza is followed, a classroom is not
a public forum. No appellate case has yet held that public school classroom is a
limited public forum.
Similarly, the majority of the cases he relies upon to make the argument that
the restriction is viewpoint-based (see Appellee’s Brief, pp. 31-33, citing,
Rosenberger, Cogswell, Lamb’s Chapel, Good News, Faith Center, Truth, Brown,
Cornelius, Perry)4 do not involve public-school teachers speaking in school. He does
3 Pickering v. Board of Education, 391 U.S. 563 (1968); Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985); Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007); Morse, supra, 551 U.S. 393; Tinker, supra, 393 U.S. 503; Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); Brandenburg v. Ohio, 395 U.S. 444 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568 (1941); Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044 (9th Cir. 2003); Arizona Life Coal., Inc. v. Stanton, 515 F.3d 956 (9th Cir. 2008); Berry v. Department of Soc. Serv., 447 F.3d 642 (9th Cir. 2006); Perry, supra, 460 U.S. 37; Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995); New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123 (2d Cir. 1998); United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998); Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985).
4 Rosenberger, supra, 515 U.S. 819; Cogswell v. City of Seattle, 347 F.3d 809 (9th Cir. 2003); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.
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cite to Downs, which he denigrates as nonsensical, and at best misleading, in a footnote. Appellee’s Brief, p. 32, fn. 36.
Finally, yet again, almost none of the government-speech cases Johnson relies upon involved a public-school teacher’s classroom speech. See Appellee’s Brief, pp. 33-41, citing Pickering, Berry, Garcetti, Connick, Rosenberger, Van Orden, Mergens, Tucker, Hills, Mercer County, Hedges.5 Again, the exceptions are Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000) (see, Appellee’s Brief, pp. 34-35) and Lee v. York County Sch. Div., 484 F.3d 687 (4th Cir. 2007) (see Appellee’s Brief, p. 37). With respect to Lee, he claims the case did not involve speech that was “personal and non-curricular.” In fact, the speech in Lee was no less “personal and non-curricular” than Johnson’s. The speech in Lee was unrelated to the teacher’s subject, and the teacher did not refer to it in his teaching.
384 (1993); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007); Truth v. Kent Sch. Dist., 524 F.3d 957 (9th Cir. 2008); Brown, supra, 321 F.3d 1217; Cornelius, supra, 473 U.S. 788; Perry, supra, 460 U.S. 37.
5 Pickering, supra, 391 U.S. 563; Berry, supra, 447 F.3d 642 (9th Cir. 2006); Garcetti v. Ceballos, 547 U.S. 410 (2006); Connick v. Myers, 461 U.S. 138 (1983); Rosenberger, supra, 515 U.S. 819; Van Orden v. Perry, 545 U.S. 677 (2005); Tucker v. California Dep’t of Educ., 97 F.3d 1204 (9th Cir. 1996); Board of Educ. v. Mergens, 496 U.S. 226 (1990); A.C.L.U. v. Mercer County, 432 F.3d 624 (6th Cir. 2005); Hills, supra, 329 F.3d 1044; Hedges v. Wauconda Cmty. United Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993).
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The court concluded that the speech was nonetheless subject to restriction. This understanding of what a school district can regulate - i.e., teacher’s speech designed to impart messages to students - was endorsed by the Ninth Circuit in Downs, where the speech was likewise unrelated to the teacher’s subject.
If Johnson’s banners must be permitted, so must banners that say things contrary to the policies of the school district and the community. The School would not be permitted to remove a banner proclaiming the validity of Osama Bin Laden’s jihad against the West. If a standard forum analysis applies here, as Johnson urges, then offensive displays would necessarily be permitted because the law is well established: mere “offense” is not a valid basis to exclude something from a limited public forum. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). B. The Forum Test Applies to “Protected” Speech, But Under Eng, Johnson’s
Speech is Not “Protected,” So the Forum Analysis Is Not Appropriate. Johnson’s legal analysis of his First Amendment claim begins and ends with a forum analysis. To try to gain traction with his analysis, Johnson repeatedly cites to this Circuit’s decision in Flint v. Dennison, 488 F.3d 816, 828-30 (9th Cir. 2007)
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as the paradigm of how this case should be decided. But Johnson completely misses the pre-requisite determination necessary to reach a forum analysis: the speech must be speech “protected” by the First Amendment.
The Flint court, for example, first made the determination that a public college’s restrictions on the campaign expenditures of students running for a student government office constituted protected speech. Flint, 488 F.3d at 829. It was only after that determination had been made that the Flint court turned to discussion of the various fora and whether they applied.
Specifically, Flint began its forum analysis by stating “[a]lthough the student campaign expenditures constitute speech protected by the First Amendment, ‘[e]ven protected speech is not equally permissible in all places and at all times.’” Id. at 829-830, emphasis added, quoting Cornelius, supra, 473 U.S. at 799.
Johnson’s argument merely assumes that his speech is “protected speech,” with no analysis other than in a vacuum. Johnson ignores an entire body of law designed to answer the question of whether a public employee’s speech is “protected” in the employment context. That body of law begins with Pickering and was distilled by the Ninth Circuit in Eng to a series of factors, the first two of which are designed to make the determination of whether the public employee’s speech is “protected” for First Amendment purposes. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). The
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first two factors are (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee. Id. If the speech is determined to be protected after evaluating those two prongs, then in retaliation cases, the court goes on to determine in the third factor “whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action.” Id., emphasis added. Without using the first two factors to determine whether the speech is “protected,” the third prong would lack its bite.
Johnson’s attempt to find support for a forum analysis in Hazelwood, supra, 484 U.S. 260, does not help him for several reasons: (1) Hazelwood dealt with student speech protected by the First Amendment; (2) it further dealt with “school sponsored” speech and (3) the Hazelwood court permitted schools to restrict the speech where the speech interferes with the mission of the school.
In Hazelwood, a principal removed — before publication — articles in a high school student newspaper addressing students’ experiences with pregnancy and the impact of divorce on students at the school. Addressing the constitutionality of this action, as it had done previously, the Supreme Court acknowledged the competing interests of educational authority and student speech rights, but emphasized that “[a] school need not tolerate student speech that is inconsistent with its basic educational mission.” Id. at 266 (citations and internal quotation marks omitted).
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Under the Ninth Circuit’s interpretation of Hazelwood, schools may limit speech that bears the imprimatur of the school when the speech may place the school on one side of a controversial issue: “A school’s decision not to promote or sponsor speech that is unsuitable for immature audiences, or which might place it on one side of a controversial issue, is a judgment call which Hazelwood reposes in the discretion of school officials and which is afforded substantial deference. We therefore conclude that controlling the content of school-sponsored publications so as to maintain the appearance of neutrality on a controversial issue is within the reserved mission of the [] District.” Planned Parenthood v. Clark County School District, 941 F.2d 817, 829 (9th Cir. 1991) (en banc), internal footnote omitted. The School meets this test.
First, there can be little debate that the banners in Johnson’s classroom might be seen to bear the imprimatur of the school. Students have been in plain view of the banners as a captive audience for 25 years. The fact that the banners were hung inside the classroom leaves no doubt that others might view them as having the stamp of school approval, even if the speech is Johnson’s speech. Johnson argues, however, that he did not use the banners in his classroom teachings. The School does not know what that means. Certainly when a 7 foot by 2 foot banner is hanging in direct sight of a captive audience of students, an idea is being imparted, and this communication
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falls within the purview of Poway Board Policy 3.11. And if speech falls within the purview of a particular policy, then the public may assume that the School made a decision with respect to the speech under that policy.
Second, there is a legitimate pedagogical reason for the banners’ removal: the School is ensuring that as an entity, it maintains its neutrality on a controversial issue and does not run afoul of the Establishment Clause.
Nevertheless, Johnson argues that any viewpoint-based restriction is unconstitutional. See Appellee’s Brief, p. 31-33. But Johnson’s arguments concerning “viewpoint neutrality” turn the notion of neutrality on its ear. Under Plaintiff’s arguments, schools would have no right whatsoever to limit a viewpoint on a particular subject matter, even if the viewpoint subjected students to ideas of hatred and racism. If Plaintiff were correct, then a teacher could hang a banner in his or her classroom reading “Hitler had the right idea,” or “Blacks, go back to Africa” and the school could do nothing to stop that viewpoint except to completely eliminate the hanging of all banners by all teachers. But that is what Plaintiff’s reading of Hazelwood suggests. Defendants submit that Plaintiff’s narrow interpretation is not in keeping with the Hazelwood court’s declaration that a school may “disassociate itself ... from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature
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audiences.” Hazelwood, 484 U.S. at 271. And the Supreme Court recently set a precedent permitting school authorities to limit a particular viewpoint. Morse v. Frederick, 551 U.S. 393 (2007) [holding that a school may limit student speech advocating illegal drug use]. So even “viewpoint neutrality” is not so absolute as Johnson would have this Court believe.
Still, Johnson suggests that it is unfair to him that other issues be permitted by the school district to be on display, such as gay rights issues, for example. Johnson does not go into detail in his arguments as to what aspect of tolerance of civil rights invades his constitutional rights as a teacher. But to clarify, the School has an “affirmative obligation” under the California Education Code “to combat racism, sexism, and other forms of bias” including sexual orientation. Cal. Educ. Code, § 201, subd. (b) and § 220. “An arm of local government such as a school board may decide not only to talk about gay and lesbian awareness and tolerance in general, but also to advocate such tolerance if it so decides, and restrict the contrary speech of one of its representatives.” Downs, supra, 228 F.3d 1003 at 1014. So Johnson’s argument begs the question as to how tolerance material concerning sexual orientation posted in a classroom is violative of his First Amendment rights.
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C. Even if The Forum Test Were to Apply, The School May Use the Establishment Clause as a Defense. Even if this Court were to find that Johnson is correct that the Eng factors and
balancing test does not apply, and that Johnson’s classroom was a limited public forum under the Hazelwood analysis, the School would still be within its rights to remove the banners. The School may use the Establishment Clause as a defense in a forum analysis. Under that legal analysis, the School Defendants may prevail if they show that the banners constitute an Establishment Clause violation. This is because avoiding endorsement of religion is a constitutional mandate and therefore a compelling interest. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112-13 (2001) (citing Widmar v. Vincent, 454 U.S. 263, 271 (1981)).
In the public-schools context, the Ninth Circuit has held that schools may refuse to allow religious speech in a limited public forum where it is necessary to avoid an Establishment Clause violation. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000). In Cole, two students sued their school district, claiming that the district violated their freedom of speech by refusing to allow one to give a sectarian, proselytizing valedictory speech and the other to give a sectarian invocation at their graduation. Cole, 228 F.3d at 1095. The court, in deciding whether the individual school officials enjoyed qualified immunity, found that the students’
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damage claims failed because the officials’ actions were reasonably taken to avoid violating the Establishment Clause of the First Amendment. Id. In supporting its decision in favor of the school officials, the Cole court explained: “We conclude the District officials did not violate the students’ freedom of speech. Even assuming the Oroville graduation ceremony was a public or limited public forum, the District’s refusal to allow the students to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause under the principles applied in Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), and Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). [Citations.]” Cole, 228 F.3d at 1101.
In cases decided after Cole, the Ninth Circuit has continued to endorse the concept that the government can distinguish and exclude proselytizing religious speech to preserve the purpose for a limited forum. See, e.g., Prince v. Jacoby, 303 F.3d 1074, 1086-87 (9th Cir. 2002) (finding that while student religious group must be given equal access to school’s public address system to announce its activities, the group may be barred from doing so to “pray and proselytize”); and Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 980 (9th Cir. 2003) (prohibiting proselytizing in high school graduation speech).
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In short, should this Court find that Johnson’s speech is protected under the First Amendment, then the Court should still find that the School’s right to protect itself from an Establishment Clause violation outweigh’s Johnson’s right to display the banners. D. The School Has Not Taken Inconsistent Positions On What Constitutes
“Curricular” Speech; The Legal Sense of the Term “Curricular” is Far Broader Than the Term’s Vernacular Use by School Administrators. Johnson points out that the School appears to have taken inconsistent positions with respect to what matters are “curricular” in nature. Appellee’s Brief, p. 16. To that end, Johnson points to the deposition testimony of School administrators Collins and Chiment, who both stated in their depositions that the banners were not part of the curriculum. Appellee’s Brief, p. 16, fn. 30. But a review of that testimony indicates that when the School’s administrators were talking about Johnson’s banners not pertaining to the curriculum, they meant that the banners have nothing to do with “mathematics,” the course of study taught by Johnson. Surely, no one would question that the phrases on the banners are not mathematical. But there is a larger meaning to the word “curriculum”, that is used in the legal sense. That is, any information imparted to the student from the teacher is
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“curricular” in nature. Lee, supra, 484 F.3d 687, 694. Johnson says that he is trying to teach students about the role of religion in our nation’s history. (3 ER 497, deposition pg. 103.) So, although not part of his formal math curriculum, it is still part of the broader curriculum taught to students during the school day. Accordingly, Johnson’s banners are speech which is not of public concern under Lee, and therefore are not afforded First Amendment protections. E. Johnson Failed to Demonstrate an Establishment Clause Violation.
Both Johnson and the ACLU contend that the string of flags in Lori Brickley’s classroom are religious. What both Johnson and the ACLU ignore, however, is that the flags do not advocate for a particular religion.
Specifically, the appellate record does not contain any evidence that the flags referred to as “Tibetan prayer flags” had any religious message. Looking at the pictures of the flags is not sufficient to identify any religious reference. 2 ER 203,204. One flag depicts what appears to be the seated Buddha. 2 ER 205. The flags are “[a]bout a foot by a foot.” (3 ER 405:87:17-18.) So the depicted Buddha is about one inch high, surrounded by Sanskrit text and other indecipherable pictures. This is not comparable in context to the seven foot long banners.
The teacher who put up the flags said she guessed that the figure was the Buddha but she was not sure. 3 ER 405:88:11-12. There is no testimony the flags
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were religious. The teacher testified that she asked her students, who included speakers of many languages, what the flags say, but none of her students could tell her. 3 ER 405:88:22 - 406:89:2. She used the flags in her science curriculum to discuss climbing Mount Everest, placing the flags on the mountain, and the fossils that were found there, as part of a discussion of “the accomplishment of an amazing goal.” 3 ER 406:89:20-22 [“In the context I just told you.”]; 405:87:20 406:89:13[the context]. The amicus brief by the ACLU denigrates her purpose, but her purpose is the only evidence in the Record, and on that basis, is the only evidence in this motion for summary judgment on the use of those flags.
Similarly, there is no evidence of a religious purpose in the posing of the text of the Lennon song “Imagine.” The record only contains a photo of the poster of John Lennon, with the text of the song in small type in the lower corner. 2 ER183:21. There is no evidence of the use of the poster or the classroom in which it was displayed. 2 ER 183. It could have been part of a unit on the Vietnam War, or related to a music class. It could have been part of a student display. There is simply no evidence who put up the poster or why. The Court has made it clear that — in the analysis of words violative of the establishment clause — the “context” of the language is “determinative.” Newdow v. Rio Linda Union School Dist., 597 F.3d 1007, 1019 (9th Cir. 2010). In this case Johnson did not submit evidence of the
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context of the John Lennon poster, or the words of the song “Imagine” which appeared to be important in the District Court’s decision. Absent the evidence of context, the determination that the song was religious was error. F. Johnson’s Banners Are Not “Ceremonial Deism” Which Would Constitute
an Exception Under the Establishment Clause. Throughout this case, Johnson has maintained that his banners do not violate the Establishment Clause, and therefore the School should not have an undifferentiated fear of a violation. Johnson’s main argument in this regard is that the banners have phrases with historical and patriotic significance. For example, in this Court, as in the District Court, Johnson has supported his view with a quote from Justice O’Connor’s concurrence in Elk Grove Unified School Dist. v. Newdow, where Justice O’Connor recognizes that “[i]t is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths.” Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 35-36 (2004) (O’CONNOR J., concurring in the judgment) However, Johnson’s use of this quote as a sword to attack the School’s position ignores the context of that quote within the whole of Justice O’Connor’s concurring opinion. It also ignores the fact that the Poway administration does not disagree with her. A closer examination of Justice O’Connor’s concurrence and the School’s
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practices is warranted to dispel Johnson’s arguments concerning this out-of-context quote.
In Elk Grove, Justice O’Connor confronted, head on, the issue of whether the phrase “one Nation under God” in the Pledge of Allegiance violates the Establishment Clause when recited at school. Using the “endorsement” test, O’Connor wrote that government endorsement of religion “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Id. at 34, quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’CONNOR, J., concurring). O’Connor opined that the government does not endorse a particular religion when a reference to the divine is historical and adds an air of solemnity to a secular occasion. Such use then does not offend the Constitution. This is what she called “ceremonial deism.” Elk Grove, 524 U.S. at 35-36 (O’CONNOR, J., concurring).
Justice O’Connor concluded that the recitation of the Pledge of Allegiance constituted such “ceremonial deism” because, in part, the words “under God” were not prominent (they are but 2 of 31 words in the Pledge) and the Pledge is a secular ritual (one can remove the words “under God” and the Pledge retains its power). Id. at 43. Justice O’Connor also noted that “the brevity of a reference to religion or
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to God in a ceremonial exercise can be important for several reasons. First, it tends to confirm that the reference is being used to acknowledge religion or to solemnize an event rather than to endorse religion in any way. Second, it makes it easier for those participants who wish to ‘opt out’ of language they find offensive to do so without having to reject the ceremony entirely. And third, it tends to limit the ability of government to express a preference for one religious sect over another.” Id. at 42. It is this minimal religious content that, in Justice O’Connor’s mind, gives the pledge its ceremonial character. Id.
In Justice O’Connor’s opinion, it was a “close question” as to whether the Pledge violates the Establishment clause (Elk Grove, 524 U.S. at 37), even though that clause is short and fleeting in the larger context of the Pledge. She felt a reasonable observer would not believe the government was endorsing religion by the phrase “under God” in the pledge. Id. at 43. Justice O’Connor noted, however, that “‘one of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.’” Id. at 39, quoting Engel v. Vitale, 370 U.S. 421, 429 (1962). Accordingly, “only in the most extraordinary circumstances could actual worship or prayer be defended as ceremonial deism.” Elk Grove, 542 U.S. at 40 (O’CONNOR, J., concurring).
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O’Connor also warned that [a]ny statement that has as its purpose placing the speaker or listener in a penitent state of mind, or that is intended to create a spiritual communion or invoke divine aid, strays from the legitimate secular purposes of solemnizing an event and recognizing a shared religious history. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309 (2000) (“[T]he use of an invocation to foster ... solemnity is impermissible when, in actuality, it constitutes [state-sponsored] prayer”). Id., parallel citations omitted.
Here, Johnson’s banners are not a form of “ceremonial deism” permitted by Justice O’Connor. Had Johnson posted the entire text of the Pledge of Allegiance on his wall, as the School suggested he do, then under O’Connor’s analysis, there would not be a Constitutional violation. But Johnson instead cherry-picked the phrase “one Nation under God” and displayed it in large letters on a banner. Instead of the words “under God” making up 2 of 31 words in the Pledge, they now constitute 50% of the words in the phrase on his banner. Similarly, Johnson took a key phrase referencing God or Creator and put them up on his banners, eschewing the remainder of the texts from which the phrases came. The word God is used repeatedly on the banners, and this repetition is exactly what Justice O’Connor warned against. By doing so, the “ceremonial deism” was lost, and what remains is the advocacy of religion by using phrases which might not offend the Constitution if kept in context. If Justice
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O’Connor thought that the Pledge itself was a close call as to whether it violated the Establishment Clause, then when the “God” phrases are removed and highlighted from their texts, as Johnson has done here, it is a close call no longer. Johnson’s banners run afoul of the Establishment Clause, and it is not an “undifferentiated fear.”
Moreover, the School’s actions do not run contrary to what Justice O’Connor has said. The School gave Johnson the option to place his phrases in their context in posters of the actual historical documents and song lyrics. Johnson was not interested in displaying his hand-picked phrases in their ceremonial context, however.
But, says Johnson, the School permitted another teacher to display a series of flags with Sanskrit writing and a very small picture of a Buddha-like figure, and therefore Equal Protection has been violated. The ACLU agrees with Johnson (one of their few agreements). The reality is, however, that the tiny depiction of the figure in the larger context of the flags is nominal, in the same way that 2 out of 31 words in the text of the Pledge of Allegiance which refer to the devine is nominal, according to Justice O’Connor. Moreover, the flags do not advocate for a particular religion and are decorative in nature, whereas Johnson’s banners advocate for the Judeo-Christian religion. Or at the very least, the banners advocate the a divine origin of the earth, given that the “Creator” banner was surrounded by pictures of nature. There are a lot of people who don’t believe that a divine power created the earth, so what Johnson
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is doing is advocating. In that context, the School did not violate the Equal Protection clause nor the Establishment Clause. G. Although the Banners Were Displayed For A Long Time, The Court
Should Be Wary of Assigning Constitutional Protections Based Upon Time. Johnson also maintains that the fact that the banners were displayed for a long time on his walls mitigates against the School’s right to remove them. But “no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice ... is not something to be lightly cast aside.” Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 678 (1970). Here, there are different students who enter Johnson’s classroom every year. Such is the high-school cycle of admission and graduation. And unlike the monument cases, where a religious themed message is portrayed in a public square or outside a public building, Johnson’s classroom is not open to the general public. Unless a student cares enough to complain, or an administrator notices that the banners might violate the Establishment Clause (as was the case here), there is no one else to challenge Johnson’s actions.
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Johnson’s argument that he is an experienced and excellent teacher actually cuts against him in this regard. As a teacher with a good reputation, he is not going to be as closely scrutinized for his teaching practices as would a new or younger teacher. Accordingly, administrators, over time, will tend to spend less and less time in his classroom. And when the administrators are there, they are probably not looking around the room at his classroom displays, but are focusing on the lesson plan, whether students are engaged in learning, and whether math skills are being imparted from teacher to student. And after 25 years, even that evaluation undoubtedly becomes pro forma. H. The Individual Defendants Are Entitled to Qualified Immunity.
Johnson begins his arguments by noting that the defense of “qualified immunity” does not apply to injunctive or declaratory relief. Johnson, however, sought and obtained nominal damages against the individual Defendants. So the qualified immunity discussion is at issue.
Contrary to the District Court’s holding, the law is not clearly established in favor of teacher speech in the classroom, and in fact, the majority of the cases would point to a limitation on the teachers rights, and forbid school districts from displaying such a banner. Even if Johnson’s banners are entitled to constitutional protection, the individual Defendants should be protected by qualified immunity because the law
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governing teacher-speech on the subject of religion in the classroom is not so well developed that a reasonable person would know which rule applies.
The clear holding in Peloza would make any school administrator who was familiar with the case absolutely certain that he or she had an obligation to stop a teacher from advocating about religion during the school day. Peloza — taken alone — should have been sufficient basis for the District Court to rule in favor of qualified immunity.
School administrators should not need a law degree in order to carry out their duties. But without a law degree it would be difficult to evaluate the current cases or to balance between the right of the teacher to state his views in the classroom against the right of the students to be free of government assertions about religion. For example, the phrase “One Nation Under God” has been the subject of substantial disagreement among the members of this Court. And reasonable people watch the disagreements on the evening news. Just a couple of years before the events in this case, the Ninth Circuit ruled that the words, “One nation under God” in the Pledge of Allegiance were illegal in the classroom. Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2005). That event was widely reported in the news. A reasonable person could be excused for believing that the reference to “God” was the problem that the Ninth Circuit identified. The reversal of the decision was not as well reported,
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because it was less sensational. After that event, another case was filed by Newdow, and subsequently the Ninth Circuit has ruled that the phrase “one nation under God” is not a problem, in the context of the entire Pledge of Allegiance. (Newdow v. Rio Linda Union School Dist., 597 F.3d 1007 (9th Cir. 2010)). Those two cases make it starkly clear that the law governing teacher-speech about God in the classroom is not well settled for the “reasonable person,” and is currently a shifting issue subject to further change. If it is difficult for lawyers and Judges to determine the rules in each case, it is impossible for a school administrator.
It appears that it is the context of the phrase in the Pledge was a necessary part of the analysis. “When it comes to testing whether words and actions are violative of the Establishment Clause, context is determinative.” Newdow, supra, at 1019. The decision seems to indicate that the phrase taken out of context would have been ruled to be improper. Id. at 1019, ftnt 9. A reasonable person could be excused for believing that placing the phrase “one nation under God” enlarged, on the wall of a classroom, would take the phrase out of context of the Pledge, and make it less than appropriate in the classroom. When placed on the wall — along with other phrases containing references to God — the context shifts, and the context becomes a message proclaiming the national endorsement of the Judeo-Christian religion. That
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shift in context argues strongly that the law is not clearly established and the administrators could not have known the correct rule to apply.
As Justice Souter recently indicated in a concurrence, “there is no doubt that this case and its government speech claim has been litigated by the parties with one eye on the Establishment Clause [citation]. The interaction between the “government speech doctrine” and Establishment Clause principles has not, however, begun to be worked out.” Pleasant Grove City, Utah v. Summum, 129 S.Ct. 1125, 1138, 172 L.Ed. 2d 853 (2009).
There has been much dispute over religion in the schools, and the issues are not yet fully resolved, but the general rule is that public schools may not endorse religion. Prayer in public schools, even a nondenominational prayer, is an impermissible government endorsement of religion. Engel v. Vitale, supra, 82 S. Ct. 1261 (1962). Reading from the Bible over the intercom is unconstitutional. Abington School District v. Schempp, 374 U.S. 203 (1963). Posting the Ten Commandments on the wall in school is not permitted. Stone v. Graham, 449 U.S. 39 (1980). A state may not require even a moment of silence in school if the motivation for the statute was the encouragement of prayer. Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479 (1985). It is unconstitutional for a school to bring clergy to perform a nondenominational prayer at graduation. Lee v. Weisman, 505 U.S. 577, 587, 112
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S.Ct. 2649 (1992). The Court indicated concern that children would feel coerced by having a prayer recited at graduation that violated their beliefs. Id. at 587.
In the case at bar, the evidence is that the school Principal was concerned that a student might feel uncomfortable. ER 424:18-20; 506 p. 44:4-13. Her concern exactly paralleled the majority viewpoint in Lee v. Weisman, supra. Yet the District Court denied immunity and awarded damages against her personally.
Similarly, the established rule is that the state may not force students to recite the Pledge of Allegiance. Barnette, supra, 319 U.S. 624. Yet the District Court permitted Johnson to force the students in his class to read one of the critical phrases from that Pledge every day. There is certainly a distinction between being force to recite a pledge, and being force to read it, but that is not a significant distinction.
It is clear teaching religion in the schools is not permitted. McCollum v. Board of Education Dist. 71, 333 U.S. 203 (1948). The State may not ban the teaching of evolution, nor alter the course of study to promote a religious point of view. Epperson v. Arkansas, 393 U.S. 97 (1968). The State also may not require the teaching of creation science along with evolution. Edwards v. Aquillard, 482 U.S. 578 (1987).
It is our tradition and law, that parents decide what religion their children are taught. It is only the parents— not the schools or the school teacher — who hold the
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right to select their own children’s religion. Wisconsin v. Yoder, 406 U.S. 205, (1972). Teachers have some of the same rights as parents, but the remaining rights are reserved to the parents. Veronia School District v. Acton, 515 U.S. 646, 655-656 (1995). In this case, the District Court has placed Johnson in a superior position, with the same right to endorse a religious belief as the students’ own parents.
The District Court’s ruling treated teacher-speech different from government speech. If the District Court is correct, then teachers can pray in class, and the state cannot stop them. That does not seem consistent with the case law, but it is certainly not “clearly settled.” Any school administrator should be forgiven for believing that the school district had a duty to stop the teacher from doing what the school clearly could not do: endorse religion.
Although the law on that issue is not yet clear, the cases are impliedly in favor of limiting teacher-speech in the same way that state-speech is limited regarding religions. If a school administrator read the most pertinent school cases, he or she would be justified in believing that the school had the right to limit the teachers speech in the classroom. The most relevant cases are Mayer v. Monroe County Community School Corp., 474 F.3d 477 (7th Cir. 2007), California Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141 (9th Cir. 2001), Downs, supra, 228 F.3d 1003, Peloza, supra, 37 F.3d 517, and Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990).
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Consider a school administrator confronted by Johnson’s banners, and familiar with the following rulings:
Nicholson v. Board of Educ. Torrance Unified School Dist., 682 F.2d 858, 682 (9th Cir. 1982) - A teacher could be fired for a dispute with the Principal over an article in the school newspaper;
Peloza, supra - A teacher could not teach creationism or call evolution a religion;
Tucker, supra - A computer specialist could put up documents about religion; Downs, supra - A teacher could not post material on hallway bulletin board; Berry, supra - A social worker could not display religious items in the workplace; Roberts, supra - A teacher could not display the Bible and posters in the classroom; Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991) - a college professor could not talk about his religious beliefs in class; Berger v. Rensselaer Cent. School Corp., 982 F.2d 1160 (7th Cir. 1993) - a school could prohibit distribution of Bibles to fifth grade students; Mayer, supra - a Teacher could not present personal views on war during class.
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The relationship between religion and the state is difficult for Judges to determine. If appellate court judges cannot agree, then the law is not settled, and school administrators cannot be held to know what the law is. Should this Court affirm the District Court with respect to Johnson’s claims against the School District, then it still should reverse with respect to qualified immunity and have summary judgment entered in favor of the individual Defendants.
II. CONCLUSION Johnson chastises the School for not creating a true “marketplace” of ideas, which would in turn permit teachers to discuss the merits of various religions. Appellee’s Brief, p. 42. Such a marketplace would be a dangerous game, where the majority of a particular religion could prosteletyze to the minority, and in such situation could foster an environment not of learning and collegiality, but of religious advocacy and castigation of the minority. The unstated notion that leaps from the page in Johnson’s brief is that evangelism in schools is appropriate, so long as it is draped in the American flag. But schools should not be turned into referendums on the proper religion for students. Instead, as the School’s policy and practices indicate, the advocacy of a particular religion is prohibited.
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The Court is respectfully requested to reverse the judgment on each of the

motions for summary judgment, and instruct the trial court to deny Johnson’s motion

and grant the Defendants’ motion.

Respectfully Submitted,

DATED: September 27, 2010

STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation

By:

/s/ Paul V. Carelli, IV

PAUL V. CARELLI, IV

Attorneys for Defendants/Appellants

Poway Unified School District; Jeff Mangum;

Linda Vanderveen; Andrew Patapow; Todd

Gutschow; Penny Ranftle; Dr. Donald A.

Phillips; William R. Chiment; and Dawn

Kastner

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CERTIFICATE OF COMPLIANCE This brief complies with the length limits set forth at Fed. Rules App. Proc., Rule 32(a)(7)(B)(ii) as determined by the word processing program used to generate the brief. The brief’s type size and type face comply with FRAP 32(a)(5) and (6). In addition, the Appellants’ Opening Brief’s Certificate misstated that the brief fit within the limits of Circuit Rule 32-4. Instead, it should have stated that it complied with the length limits of Fed. Rules App. Proc., Rule 32(a)(7)(B)(i).
s/ Paul V. Carelli IV PAUL V. CARELLI, IV Attorney for Appellants
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Case: 10-55445 09/27/2010 PaSgetu: 1tzof 1 ID: 7488730 DktEntry: 23-3

2488 Histone Decatur Road Suite 200

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September 10, 2010

Charles S. LiMandri, Esq. P.O. Box 9120 Rancho Santa Fe, CA 92067

Robert J. Muise, Esq. P.O. Box 393 Ann Arbor, MI 48106

Re: Johnson v. Poway Unified School District, eta/. USDC Case No.: 07-CV-00783-BEN (LSP)
Dear Mr. LiMandri and Mr. Muise:
Please be advised that the U.S. Court of Appeals for the Ninth Circuit has telephonically granted the Appellants Poway Unified School District, et al., a 14-day extension oftime to file the Appellants' Reply Brief. Accordingly, the Reply Brief will be due on September 27, 20 I0.
Should you have any questions or concerns about this or any other matter, please feel free to contact me at your earliest convenience.
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STUTZ ARTIANO SHINOFF & HOLTZ A Professional Corporation
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