No. 10-55445

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRADLEY JOHNSON,

Plaintiff-Appellee,

v.

POWAY UNIFIED SCHOOL DISTRICT, et al.,

Defendants-Appellants.

On Appeal From the United States

District Court for the Southern District of California

No. 3:07-CV-00783-BEN-WVG (Hon. Roger T. Benitez)

Brief of Americans United for Separation of Church and State as

Amicus Curiae in Support of Appellants

Ayesha N. Khan

khan@au.org

Michael A. Blank

blank@au.org

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

518 C Street, NE

Washington, DC 20002

(202) 466-3234

Counsel for Amicus Curiae

July 23, 2010

i

TABLE OF CONTENTSPage

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

RULE 26.1 CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . x

NATURE OF AMICI’S INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. JOHNSON’S FREE-SPEECH CLAIM FAILS BECAUSE THEMESSAGES THAT TEACHERS IMPART TO STUDENTS IN THECLASSROOM ARE ATTRIBUTABLE TO THE GOVERNMENT. . . . . . 2

A. Teachers Speak on Behalf of the Government When They MakePresentations to Students During the School Day . . . . . . . . . . . . . . . 3

B. Attributing a Teacher’s School-Day Speech to the Teacher’sEmployer is Consistent with the Government-Speech Doctrine . . . . 9

C. Attributing Johnson’s Speech to the School Is Also Consistent with theSupreme Court’s Public-Employee-Speech Jurisprudence . . . . . . . 11

D. Classifying Johnson’s Speech as the Government’s Does Not ImperilAcademic Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

E. The District Court Erred in Relying on Decisions Involving PrivateSpeech By Students and Outsiders . . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. JOHNSON FAILED TO DEMONSTRATE AN ESTABLISHMENTCLAUSE VIOLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Whether Johnson’s Display Violated the Establishment Clause . . . 22

ii

B. Whether the School District’s Actions Reflected anUnconstitutional Religious Preference . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32 . . . . . . . . . . . . 29

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii

TABLE OF AUTHORITIESPage(s)

Cases:

ACLU of Ohio Foundation, Inc. v. Ashbrook,375 F.3d 484 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Adler v. Board of Education,342 U.S. 485 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Arizona Life Coalition, Inc. v. Stanton,515 F.3d 956 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

Berger v. Rensselaer Central School Corp.,982 F.2d 1160 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Bethel School District No. 403 v. Fraser,478 U.S. 675 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Board of Education of Kiryas Joel Village School District v. Grumet,512 U.S. 687 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Board of Education of Westside Community Schools v. Mergens,496 U.S. 226 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Boring v. Buncombe County Board of Education,136 F.3d 364 (4th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

Bradley v. Pittsburgh Board of Education,910 F.2d 1172 (3d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

Brown v. Armenti,247 F.3d 69 (3d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv

Busch v. Marple Newtown School District,567 F.3d 89 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Capitol Square Review & Advisory Board v. Pinette,515 U.S. 753 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ceniceros v. Board of Trustees of the San Diego Unified School District,106 F.3d 878 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Connick v. Myers, 461 U.S. 138 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20, 24

Curry ex rel. Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Doe v. Duncanville Independent School District, 70 F.3d 402 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Downs v. Los Angeles Unified School District,228 F.3d 1003 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5, 9, 17, 27

Edwards v. Aguillard,482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Edwards v. California University of Pennsylvania,156 F.3d 488 (3d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

Epperson v. Arkansas,393 U.S. 97 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

v

Faith Center Church Evangelistic Ministries v. Glover,480 F.3d 891 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Flint v. Dennison,488 F.3d 816 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Garcetti v. Ceballos, 547 U.S. 410 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13

Glassroth v. Moore,229 F. Supp. 2d 1290 (M.D. Ala. 2002), aff’d, 335 F.3d 1282 (11th Cir.2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Good News Club v. Milford Central School,533 U.S. 98 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Grutter v. Bollinger, 539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Hall v. Board of School Commissioners of Conecuh County, 656 F.2d 999 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 17

Hills v. Scottsdale Unified School District No. 48,329 F.3d 1044 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Indiana Civil Liberties Union v. O’Bannon,259 F.3d 766 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Johanns v. Livestock Marketing Association,544 U.S. 550 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Keyishian v. Board of Regents, 385 U.S. 589 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

vi

Lamb’s Chapel v. Center Moriches Union Free School District,508 U.S. 384 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Larson v. Valente,456 U.S. 228 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26

Lee v. Weisman,505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24, 27

Lee v. York County School Division,484 F.3d 687 (4th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8, 12

Lemon v. Kurtzman,403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Locke v. Davey,540 U.S. 712 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Marchi v. Board of Cooperative Educational Services of Albany,173 F.3d 469 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Mayer v. Monroe County Community School Corp., 474 F.3d 477 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5, 8, 12, 15

McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 27

Milwaukee Deputy Sheriffs’ Association v. Clarke, 588 F.3d 523 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Morse v. Frederick,551 U.S. 393 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

National Endowment for the Arts v. Finley,524 U.S. 569 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vii

Newdow v. Rio Linda Union School District,597 F.3d 1007 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Peloza v. Capistrano Unified School District,37 F.3d 517 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 20

Pickering v. Board of Education,391 U.S. 563 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pleasant Grove City v. Summum,555 U.S. ___, 129 S. Ct. 1125 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 20

Prince v. Jacoby,303 F.3d 1074 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Regents of University of California v. Bakke, 438 U.S. 265 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

San Leandro Teacher’s Association v. Governing Board of the San LeandroUnified School District,

209 P.3d 73 (Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Santa Fe Independent school District v. Doe, 530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

viii

School District of Abington Township v. Schempp, 374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Steele v. Van Buren Public School District, 845 F.2d 1492 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Stone v. Graham, 449 U.S. 39 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 27

Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Truth v. Kent School District,542 F.3d 634 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Walz v. Tax Commission of the City of New York,397 U.S. 664 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Walz ex rel. Walz v. Egg Harbor Township Board of Education,342 F.3d 271 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Washegesic v. Bloomingdale Public Schools,33 F.3d 679 (6th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Widmar v. Vincent,454 U.S. 263 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ix

Other Authorities:

AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, 1940 STATEMENT OFPRINCIPLES ON ACADEMIC FREEDOM AND TENURE WITH 1970 INTERPRETIVECOMMENTS (2006) ,http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm(follow “this statement” hyperlink) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16

x

RULE 26.1 CORPORATE DISCLOSURE STATEMENT

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case No. 10-5545

Bradley Johnson

v.

Poway Unified School District, et al.

Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Americans Unitedfor Separation of Church and State makes the following disclosure:

Americans United for Separation of Church and State is a 501(c)(3) nonprofitcorporation. No publicly held corporation owns Americans United, is an affiliate ofAmericans United, or has a financial interest in the outcome of this appeal.

Signed:

/s/ Ayesha N. Khan

1

NATURE OF AMICI’S INTERESTS

Americans United for Separation of Church and State is a national,

nonsectarian public interest organization that is committed to preserving the

constitutional principles of religious freedom and separation of church and state.

Since its founding in 1947, Americans United has participated as party, counsel, or

amicus curiae in many of the leading church-state cases decided by the Supreme

Court of the United States and by the United States Courts of Appeals. Americans

United has over 75,000 members nationwide, including many thousands within the

jurisdiction of this Court.

All parties have consented to the filing of this amicus brief.

SUMMARY OF ARGUMENT

Johnson‟s classroom displays are properly classified as governmental speech,

rather than private speech subject to free-speech protections. That classification is

consistent with past rulings of this Court, decisions from other Circuits, the

government-speech doctrine, the public-employee-speech doctrine, and academic-

freedom principles. The body of law on which the district court relied involves

efforts by private speakers to gain access to government property; the free-speech

tests applied in those cases have no bearing on the government‟s own speech.

The Establishment Clause, but not the Free Speech Clause, constrains the

government‟s speech. To be sure, the Establishment Clause forbids the government

2

from showing a preference for one religion over another, or for religion over non-

religion. But Johnson made no showing that other displays in School District

classrooms were comparable to his banners in authorship, context, longevity, or

content. Because of this failure of proof, the district court erred in concluding that

the School District‟s order that Johnson remove his banners entailed viewpoint

discrimination that ran afoul of the Establishment Clause, the Equal Protection

Clause, and California‟s No Preference Clause.

ARGUMENT

I. JOHNSON’S FREE-SPEECH CLAIM FAILS BECAUSE THE

MESSAGES THAT TEACHERS IMPART TO STUDENTS IN THE

CLASSROOM ARE ATTRIBUTABLE TO THE GOVERNMENT.

The Free Speech Clause restricts government regulation of private speech; it

does not apply to the government‟s own speech. Pleasant Grove City v. Summum,

555 U.S. __, 129 S. Ct. 1125, 1129 (2009); accord Johanns v. Livestock Mktg.

Ass’n, 544 U.S. 550, 553 (2005) (“the Government‟s own speech . . . is exempt

from First Amendment scrutiny"). When a teacher speaks to students during

contract time, he does so as a representative of the school, and free-speech

protections—including academic-freedom principles and public-forum

jurisprudence—are simply inapposite.

3

A. Teachers Speak on Behalf of the Government When They Make

Presentations to Students During the School Day.

This Court has twice addressed teachers‟ assertion of free-speech interests in

the presentation of messages to students during the school day. In each instance,

the Court concluded that the teacher lacked any free-speech rights because he was

speaking on behalf of his employer. Federal appeals courts outside this Circuit

have reached the same conclusion. Indeed, the district court below stands alone in

concluding that a teacher‟s speech, undertaken in the classroom, during the school

day, to an audience of school children, is private speech entitled to free-speech

protections.

In Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th Cir.

2000), this Court addressed whether a school district violated a teacher‟s free-

speech rights when it refused to allow him to display a message that conflicted

with the “Gay and Lesbian Awareness Month” messages displayed on a school

bulletin board. Id. at 1006-09. Teachers were encouraged to post materials on the

board without pre-approval, but the school‟s principal retained ultimate oversight

over the display. Id. at 1006. A teacher who opposed the school‟s message sought

to erect his own display reflecting his disapproval of homosexual acts. Id. at 1006-

07. The school principal directed the teacher to remove the competing display and

the teacher filed suit, claiming a free-speech right to advance his views. Id. at

1007-08. This Court concluded that the messages on the bulletin board were “a

4

case of the government itself speaking” and that the teacher thus lacked any free-

speech right to present his own message. Id. at 1011.

Similarly, in Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir.

1994), this Court held that a science teacher had no free-speech right to present his

religious views to students. Id. at 522. The Court explained:

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.

Other Circuits have likewise concluded that messages imparted to students

during the school day are attributable to the government and thus do not give rise

to any free-speech interests on the part of individual teachers. The Seventh Circuit,

for example, held in Mayer v. Monroe County Community School Corp., 474 F.3d

477 (7th Cir. 2007), that an elementary-school teacher had no free-speech right to

introduce her personal views about current events into her discussions with

students. Id. at 479. “[T]he 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 salary.” Id. (emphasis in

original). Accordingly, the school—and not any individual teacher—has the right

5

to control the messages that are imparted to students during the school day. Id.

Likewise, the Third Circuit held that a high-school teacher had no free-speech right

to choose her teaching methodology, reasoning broadly that “[a]lthough a teacher‟s

out-of-class conduct, including her advocacy of particular teaching methods, is

protected, her in-class conduct is not.” Bradley v. Pittsburgh Bd. of Educ., 910

F.2d 1172, 1176 (3d Cir. 1990) (internal citations omitted). And the Fourth Circuit

followed suit in Boring v. Buncombe County Board of Education, 136 F.3d 364

(4th Cir. 1998), holding that a high-school teacher had no free-speech right to

select the play to be performed by students in a statewide acting competition. Id. at

368.

Nor does it matter whether a teacher‟s speech is presented in conjunction with

the teaching of a class. The speech at issue in Downs arose outside the classroom

altogether, a fact that this Court easily dismissed as irrelevant: “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.” 228 F.3d at 1015. The Court made clear that

teachers may propound their own personal messages “on the sidewalks, in the

parks, through the chat-rooms, at his dinner table, and in countless other

locations”—but not on the schools‟ walls. Id. at 1016 (internal citation omitted).

6

Indeed, in Lee v. York County School Division, 484 F.3d 687 (4th Cir. 2007),

the Fourth Circuit addressed a situation that is legally indistinguishable from the

one at hand. In Lee, the school had a practice of allowing teachers to place

materials on classroom walls “that are of personal interest to them.” Id. at 690. The

plaintiff, the first teacher ever to be ordered to remove posted materials (see id. at

691 n.5), claimed, just like Johnson here, that he had a free-speech right to display

his materials because they were “unrelated to the curriculum.” Id. at 694 n.10; see

also id. at 691 (explaining that teacher “did not believe that the Items were related

to any particular Spanish curricular objective, and had not referred to any of them

while teaching”). The court disagreed, concluding that the teacher lacked a free-

speech right to display the items because they were part of the “curriculum” even

though they arose outside the context of formal instruction. Id. at 700.

In reaching that conclusion, the court relied on the definition of “curricular” set

forth in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 271 (1988):1 “To

be curricular . . . speech must constitute school-sponsored expression bearing the

imprimatur of the school. . . . [T]he speech must also be supervised by faculty

members and [be] designed to impart particular knowledge to the students.” Lee,

1 The Lee court relied on Hazelwood only for its definition of “curricular.” Lee,

484 F.3d at 697. The court did not, however, use Hazelwood‟s free-speech

standard to decide whether the teacher‟s speech was permissible, holding instead

that teachers lack any free-speech rights in the context of curricular instruction. Id.

at 700.

7

484 F.3d at 697 (internal citations omitted). The Fourth Circuit concluded that

Lee‟s displays satisfied the first requirement because they “were constantly present

for review by students in a compulsory classroom setting,” were posted on school-

owned bulletin boards subject to recognized restrictions on materials that could be

properly posted there, and the school board and school principal “maintained

oversight of the bulletin boards and their postings.” Id. at 698-99. With respect to

the second requirement, the court noted that “[c]lassroom speech can impart

particular knowledge if its purpose is to convey a specific message or information

to students. That specific message need not relate to [the particular subject taught

by the teacher], but could instead constitute information on social or moral values

that the teacher believes the students should learn or be exposed to.” Id. at 699.

The court found that Lee‟s displays were designed to “inform his students of

certain positive figures and these figures‟ social and moral values.” Id. The

displays were therefore plainly curricular. Id. The upshot of the Lee court‟s

analysis was that public schools, and not any individual teacher, have the ultimate

“right to regulate speech that occurs within a . . . classroom setting.” Id. at 695.

Like the displays in Lee, Johnson‟s banners “were constantly present for review

by students in a compulsory classroom setting,” were hung on school-owned

classroom walls subject to the policies of the School District, and were subject to

the oversight of School District officials. See Chiment Dep. 58:10-21, May 14,

8

2009, 3 Excerpts of R. at 342; Collins Dep. 43:17-25, May 12, 2009, 3 Excerpts of

R. at 301. Additionally, Johnson‟s speech was designed to impart messages “on

social or moral values” such as patriotism (Johnson Decl. ¶ 16, 2 Excerpts of R. at

188) and “the existence of God in our nation‟s history and culture” (Decision

Granting Pl.‟s Mot. for Summ. J. and Den. Def.‟s Mot. for Summ. J., Feb. 25, 2010

(hereinafter Decision), 1 Excerpts of R. at 016). Johnson‟s displays are therefore

plainly “curricular” under the analysis outlined in Lee.

The Fourth Circuit in Lee recognized an additional reason that school districts

rather than any individual teacher must retain ultimate discretion over the messages

that are imparted to students during the school day: the setting involves a captive

audience. Lee, 484 F.3d at 695. “Education is compulsory, and children must

attend public schools unless their parents are willing to incur the cost of private

education or the considerable time commitment of home schooling. Children who

attend school because they must ought not be subject to teachers‟ idiosyncratic

perspectives.” Mayer, 474 F.3d at 479.2 Johnson‟s students, and their parents,

deserve no less.

2 See also Milwaukee Deputy Sheriffs’ Ass’n v. Clarke, 588 F.3d 523, 530-31

(7th Cir. 2009) (holding forum analysis inapplicable to religious group‟s access to

Sheriffs‟ department meetings because forum analysis is inappropriate when one

seeks access to a captive audience) (citing Minn. State Bd. for Cmty. Coll. v.

Knight, 465 U.S. 271, 281-83 (1984) (holding forum analysis was not applicable

where plaintiff-group sought access to a government audience, rather than to the

9

B. Attributing a Teacher’s School-Day Speech to the Teacher’s

Employer Is Consistent with the Government-Speech Doctrine.

In concluding that the bulletin boards at issue in Downs were “an example of

the government opening up its own mouth” (228 F.3d at 1012), this Court

considered, among other factors, the identity of the individuals who were

authorized to post items (namely, school employees) as well as the entity that had

ultimate oversight over posted items (namely, school principals). Id. at 1011.

Although there are “special circumstances related to the school setting,” this Court

has recognized that the factors relied upon in Downs are “similar” to the factors

that the Court has considered outside the school setting in differentiating between

private and governmental speech (Arizona Life Coalition, Inc. v. Stanton. 515 F.3d

956, 964 n.5 (9th Cir. 2008)), namely:

(1) the central “purpose” of the program in which the speech in question

occurs; (2) the degree of “editorial control” exercised by the government or

private entities over the content of the speech; (3) the identity of the “literal

speaker”; and (4) whether the government or the private entity bears the

“ultimate responsibility” for the content of the speech, in analyzing

circumstances where both government and a private entity are claimed to be

speaking.

Id. at 964.

physical space in which to speak); Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d

1160, 1165-66 (7th Cir. 1993) (holding forum analysis inapplicable to Christian

organization seeking to distribute Bibles in elementary schools because

organization sought access to audience, not facilities)).

10

Johnson‟s banners are no less governmental under this four-factor test than they

are in the context of the “special circumstances related to the school setting.” Id. at

964 n.5. As the district court itself noted, “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.”

Decision, 1 Excerpts of R. at 004. The School District‟s practice is designed to

create varied learning environments to stimulate student interests and to expose

students to the diversity of ideas and viewpoints espoused by their educators.

Chiment Dep. 90:11-24, 91:3-10, 3 Excerpts of R. at 347. The District has always

maintained final editorial control over posted messages: The District grants

teachers discretion and control over displays only “within limits.” Chiment Dep.

65:6, 3 Excerpts of R. at 343. The District has consistently maintained that items

posted in teacher classrooms must comply with the District‟s hate and harassment

policy as well as with the policy on the teaching of controversial issues. Chiment

Dep. 58:10-21, 3 Excerpts of R. at 342; Collins Dep. 43:17-25, 3 Excerpts of R. at

301. And while Johnson is the banners‟ “literal speaker,” he speaks only by virtue

of both his position as a school teacher and the District‟s decision to allow him to

personalize his classroom. Thus, it is the District, and not Johnson, that bears

ultimate responsibility for the items on Johnson‟s classroom walls. If a court were

to find an Establishment Clause violation in the display erected by Johnson, the

11

District would undoubtedly be liable: A school district is responsible for a

teacher‟s actions that violate the Establishment Clause when it learns of, and does

not prohibit, the offending behavior. See Steele v. Van Buren Pub. Sch. Dist., 845

F.2d 1492, 1496 (8th Cir. 1988); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d

402, 406 (5th Cir. 1995); Hall v. Bd. of Sch. Comm’rs of Conecuh County, 656

F.2d 999, 1000 (5th Cir. 1981).

C. Attributing Johnson’s Speech to the School Is Also Consistent

with the Supreme Court’s Public-Employee-Speech

Jurisprudence.

“For most of [the Twentieth C]entury, the unchallenged dogma was that a

public employee had no right to object to conditions placed upon the terms of

employment-including those which restricted the exercise of constitutional rights.”

Connick v. Myers, 461 U.S. 138, 143 (1983). The Supreme Court recognized an

exception to this principal when it held in Pickering v. Board of Education, 391

U.S. 563 (1968), that government employees retain First Amendment rights to

speak as “citizen[s] . . . commenting upon matters of public concern.” Id. at 568. In

2006, the Supreme Court added a threshold question to the Pickering test when it

considered adverse employment actions taken against a deputy district attorney

after he prepared a memorandum alerting his superiors to serious

misrepresentations in an affidavit used to secure a search warrant in a pending

criminal case. See Garcetti v. Ceballos, 547 U.S. 410, 413-14 (2006). The Court

12

held that the plaintiff-employee had no free-speech rights in this context because

public-employee speech made pursuant to official job duties is the government‟s

speech, not the employee‟s. Id. at 421. As the Court explained, “[e]mployers have

heightened interests in controlling speech made by an employee in his or her

professional capacity. Official communications have official consequences,

creating a need for substantive consistency and clarity. Supervisors must ensure

that their employees‟ official communications are accurate, demonstrate sound

judgment, and promote the employer‟s mission.” Id. at 422-23. Thus, public

employees have no free-speech rights when they speak pursuant to their official

duties. Id. at 421.

It thus comes as no surprise that those courts that have applied the public-

employee-speech doctrine to the speech of public-school teachers have uniformly

concluded that teachers‟ presentations of messages to students during the school

day do not entail matters of public concern, and are thus undeserving of free-

speech protections. See, e.g., Lee, 484 F.3d at 700; Mayer, 474 F.3d at 479;

Boring, 136 F.3d at 368; Bradley, 910 F.2d at 1176.

As the district court noted, Johnson‟s banners were erected in the course of

executing his official duties. Decision, 1 Excerpts of R. at 004. Although Johnson

authored the displays without school officials‟ input (just as the plaintiff-employee

in Garcetti crafted his memorandum without his boss‟s input), because he spoke as

13

a government employee, the School District was entitled to control his message

without free-speech restraints.

D. Classifying Johnson’s Speech as the Government’s Does Not

Imperil Academic Freedom.

The Garcetti Court reserved the question of whether and how the holding in

that case applies to speech that arises in the academic context:

There is some argument that expression related to 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.

547 U.S. at 425. By withholding judgment on that point, the majority hoped to

avoid the problems perceived by the Garcetti dissenters, who suggested that the

holding “imperil[s] First Amendment protection of academic freedom in public

colleges and universities, whose teachers necessarily speak and write pursuant to

official duties.” Id. at 438 (Souter, J., dissenting) (internal quotation marks,

citations, and ellipses omitted) (emphasis added). But none of the Justices

suggested that academic freedom extends to classroom presentations in

elementary, middle, and high schools, where the curriculum is strictly

circumscribed and the audience is made up of children. Whatever academic

freedom may cover, it surely does not extend to Johnson‟s displays.

14

Academic freedom holds a “special niche in our constitutional tradition,” but

remains a relatively amorphous concept. Grutter v. Bollinger, 539 U.S. 306, 329

(2003). Justice Douglas first used the term in dissent in Adler v. Board of

Education, 342 U.S. 485 (1952), in which the Court upheld a New York law

authorizing the removal of any public-school employee who advocated the

overthrow of the government. See id. at 509 (Douglas, J., dissenting). Justice

Douglas‟s position was later adopted by Keyishian v. Board of Regents, 385 U.S.

589 (1967), when the Court overruled Adler and declared unconstitutional the

University of New York at Buffalo‟s requirement that incoming professors sign

certificates stating that they were not Communists. Id. at 606.

But neither Adler nor Keyishian involved teachers‟ classroom presentations, a

setting in which academic freedom has little currency because the concept “thrives

not only on the independent and uninhibited exchange of ideas among teachers and

students, but also, and somewhat inconsistently, on autonomous decisionmaking

by the academy itself.” Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 492 (3d Cir.

1998) (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12

(1985)). “The „four essential freedoms‟ that constitute [an institution‟s] academic

freedom have been described as a university‟s freedom to choose „who may teach,

what may be taught, how it shall be taught, and who may be admitted to study.”

Id. (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (internal

15

quotation marks and citation omitted)). Accordingly, “a public university professor

does not have a[n academic-freedom] right to decide what will be taught in the

classroom.” Id. at 491. That “academic freedom” belongs to the professor‟s

employer. Id. at 492; accord Brown v. Armenti, 247 F.3d 69, 75 (3d Cir. 2001) (a

university professor has academic freedom “out of the classroom” but not “in the

classroom” because in the latter context, he is fulfilling the “four essential

freedoms” that rest with the university itself). And although both Edwards and

Brown pre-dated Garcetti, the Seventh Circuit explicitly held in Mayer that

“principles of academic freedom [do not] supersede Garcetti in classrooms.” 474

F.3d at 479.

The courts‟ exegesis of academic freedom is consistent with the American

Association of University Professors (AAUP)‟s understanding of that concept.

The AAUP defines academic freedom as both granting protections to teachers and

imposing obligations on them because of their “special position in the

community.” AM. ASS‟N OF UNIV. PROFESSORS, 1940 STATEMENT OF PRINCIPLES

ON ACADEMIC FREEDOM AND TENURE WITH 1970 INTERPRETIVE COMMENTS 3-4

(2006) (hereinafter AAUP STATEMENT),

http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm

(follow “this statement” hyperlink). According to the AAUP, “[t]eachers are

entitled to full freedom in research and in the publication of the results, subject to

16

the adequate performance of their other academic duties.” Id. at 3. “Teachers are

[also] entitled to freedom in the classroom in discussing their subject, but they

should be careful not to introduce into their teaching controversial matter which

has no relation to their subject.” Id. (emphasis added). Finally, teachers “should at

all times be accurate, should exercise appropriate restraint, should show respect for

the opinions of others, and should make every effort to indicate that they are not

speaking for the institution.” Id. at 3-4.

Johnson‟s speech arose on his classroom walls, not in the context of his

“research and . . . publication.” Id. at 3. Johnson‟s banners also opined on a

“controversial matter which has no relation to [his] subject.” Id. As the district

court noted, “[i]t is undisputed that Johnson did not hang the banners as part of the

curriculum he teaches.” Decision, 1 Excerpts of R. at 004. Nor can Johnson‟s

speech reasonably be described as “accurate,” “restrain[ed],” or “respect[ful of] the

opinions of others.” AAUP STATEMENT at 4. And it was not accompanied by any

“indicat[ion] that [he was] not speaking for the institution.” Id.3 Accordingly,

Johnson‟s speech is manifestly undeserving of academic-freedom protections.

3 Even if such a disclaimer had been included alongside Johnson‟s banners, it

would not cure the Establishment Clause problem posed by the display because the

government cannot disclaim speech that it otherwise endorses. See County of

Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 600-01 (1989).

17

E. The District Court Erred in Relying on Decisions Involving

Private Speech By Students and Outsiders.

The district court‟s conclusion that Johnson‟s displays merited free-speech

protections flowed from the court‟s overwhelming reliance on cases involving

speech by students and non-school personnel. Indeed, all but one of the over-one-

dozen cases that the district court cited arose in that inapposite context.

The principal case on which the district court relied was Hazelwood, 484 U.S.

at 273, in which the Supreme Court held that a teacher could censor newspaper

articles written by students only insofar as the censorship was “reasonably related

to legitimate pedagogical concerns.” Id. This Court has explicitly recognized that

Hazelwood does not control in “a case of the government itself speaking.” Downs,

228 F.3d at 1011. The other cases that the district court cited were equally off-

point:

Morse v. Frederick, 551 U.S. 393, 403 (2007), involved a school‟s ability to

regulate student expression designed to promote illegal drug use

Good News Club v. Milford Central School, 533 U.S. 98, 109 (2001),

entailed a Christian student club‟s effort to gain access to a school facility

for afterschool meetings

Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819,

826-27 (1995), concerned a student club‟s ability to gain funding for its

newspaper

Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S.

384, 387 (1993), addressed a community group‟s effort to obtain access to

school facilities for the showing of a religious film

18

Board of Education of Westside Community Schools v. Mergens, 496 U.S.

226, 246-47 (1990), involved a student-run Christian club‟s effort to be

given equal access to school facilities under the Equal Access Act

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685-86 (1986),

concerned a school‟s ability to regulate a student‟s “vulgar speech and lewd

conduct”

Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788,

790 (1985), entailed a private charitable group‟s effort to participate in a

charity drive aimed at federal employees

Widmar v. Vincent, 454 U.S. 263, 265 (1981), addressed a private religious

group‟s effort to use university facilities after hours

Tinker v. Des Moines Independent Community School District, 393 U.S.

503, 504 (1969), involved a student‟s request to wear a black armband to

school, in protest of the country‟s involvement in the Vietnam war

Truth v. Kent School District, 542 F.3d 634, 640 (9th Cir. 2008), concerned

a student club‟s effort to obtain official school recognition

Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891, 904

(9th Cir. 2007), addressed a private religious group‟s effort to gain access to

a meeting room in a county library

Flint v. Dennison, 488 F.3d 816, 821 (9th Cir. 2007), involved students‟

expenditures on campaigns for student office

Hills v. Scottsdale Unified School District No. 48, 329 F.3d 1044, 1047-48

(9th Cir. 2003), entailed a private community group‟s effort to gain access to

a school‟s flyer-distribution system

Prince v. Jacoby, 303 F.3d 1074, 1077-78 (9th Cir. 2002), concerned a

student-run Bible club seeking access to benefits extended to other student-

run clubs

Sammartano v. First Judicial District Court, 303 F.3d 959, 962-63 (9th Cir.

2002), addressed private citizens seeking entry to a county courthouse

19

Ceniceros v. Board of Trustees of the San Diego Unified School District,

106 F.3d 878, 881 (9th Cir. 1997), involved a student-run religious club‟s

effort to meet during lunchtime, a privilege extended to non-religious

student clubs

San Leandro Teachers’ Ass’n v. Governing Board of the San Leandro

Unified School District, 209 P.3d 73, 77 (Cal. 2009), addressed labor

unions‟ effort to obtain access to internal faculty mailboxes to distribute

political messages to union members

None of these cases involved a government employee, let alone a teacher speaking

to students in his classroom.

The only case relied on by the district court that involved a teacher‟s classroom

speech was Epperson v. Arkansas, 393 U.S. 97 (1968) (cited in Decision, 1

Excerpts of R. at 001, 011-12), in which the Supreme Court struck down an

Arkansas statute prohibiting the teaching of evolution in public schools. Id. at 103.

The statute had been challenged by a public-school teacher who sought to

incorporate evolutionary theory into her teaching. Id. at 100. But Epperson was not

decided on free-speech grounds: The Court explicitly declined to address the

teacher‟s claim of free-speech and academic-freedom rights, id. at 100-01, instead

resolving the case on “the narrower terms” of the Establishment Clause. Id. at 106.

Thus, while Epperson commands that classroom presentations be subjected to

Establishment Clause scrutiny, the case has nothing to say about the application of

free-speech principles to Johnson‟s speech.

20

II. JOHNSON FAILED TO DEMONSTRATE AN ESTABLISHMENT

CLAUSE VIOLATION.

While the government‟s speech is exempt from scrutiny under the Free Speech

Clause, its actions “must comport with the Establishment Clause.” Summum, 129

S. Ct. at 1132.4 And because schoolchildren are impressionable and their

attendance at school is involuntary, courts are “particularly vigilant in monitoring

compliance with the Establishment Clause in elementary and secondary schools.”

Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987); see also Lee v. Weisman, 505

U.S. 577, 592 (1992) (noting that, in the public-school context, “there are

heightened concerns with protecting freedom of conscience from subtle coercive

pressure”).

A public school can run afoul of the Establishment Clause in a variety of ways.

Foremost among these is that it can take action that has a religious purpose or

effect. See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The Supreme Court, this

4 The Establishment Clause would apply here even if Johnson‟s speech retained

some private elements, because the Clause applies both to government speech and

to private speech endorsed by the government. See Allegheny, 492 U.S. at 599.

The Clause may even in some circumstances limit private speech in a public

forum. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 303 n.13 (2000) (“we

have never held the mere creation of a public forum shields the government entity

from scrutiny under the Establishment Clause”) (citing Capitol Square Review &

Advisory Bd. v. Pinette, 515 U.S. 753, 772 (1995) (O‟Connor, J., concurring) (“I

see no necessity to carve out . . . an exception to the endorsement test for the public

forum context”)).

21

Circuit, and all of the other Circuits have long recognized that public schools run

afoul of Lemon when they advance religious messages before students. See, e.g.,

Stone v. Graham, 449 U.S. 39, 41-43 (1980) (statute requiring posting of Ten

Commandments in public-school classrooms violates Establishment Clause);

Peloza, 37 F.3d at 522 (teaching of creationism in public school would violate

Establishment Clause); Washegesic v. Bloomingdale Public Schs., 33 F.3d 679,

683-84 (6th Cir. 1994) (portrait of Jesus in public-school hallway violates

Establishment Clause); Roberts v. Madigan, 921 F.2d 1047, 1057-58 (10th Cir.

1990) (poster in public school asking readers to open their eyes and see the hand of

God violates Establishment Clause). The district court concluded that Johnson‟s

display was permissible because his banners were principally historical and

patriotic rather than religious. Decision, 1 Excerpts of R. at 019.

A school district can also violate the Establishment Clause by “treat[ing] people

differently based on the God or gods they worship, or do not worship.” Bd. of

Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 714 (1994) (citing

Larson v. Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the

Establishment Clause is that one religious denomination cannot be officially

preferred over another”)). The district court held that the Poway Unified School

District ran afoul of this principle by requiring Johnson to remove his banners

while allowing other teachers‟ items—including “an image of Buddha, large

22

Tibetan prayer flags displays, Hindu messages, and anti-religious messages”—to

remain on classroom walls. Decision, 1 Excerpts of R. at 027-29.

Both of these district-court rulings should be reversed.

A. Whether Johnson’s Display Violates the Establishment Clause

This Court need not address whether Johnson‟s display runs afoul of the

Establishment Clause. Johnson lacks standing to challenge his own display, and

even if Johnson were found to have a free-speech interest in his banners (which he

does not, for all of the reasons described in Section I, supra), the School District

would have a valid basis to prohibit the display short of demonstrating an

Establishment Clause violation. If the Court does reach the question, however, the

record permits only one conclusion: Johnson‟s display was erected with a

religious purpose and has a primarily religious and coercive effect.

The federal courts of appeals have consistently held that school districts can

restrict speech that could give rise to a constitutional challenge even though the

speech might ultimately be found not to transgress Establishment Clause limits.

See, e.g., Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004, 1008 (7th Cir.

1990) (holding that school board‟s prohibition on teaching of nonevolutionary

theory of creation did not violate teacher‟s free-speech rights, stating that avoiding

“possible establishment clause violations” constitutes “legitimate concern”)

(emphasis added)). Otherwise, school districts would be charged with foretelling,

23

at the peril of legal liability, precisely where the courts would draw the line

between constitutionally permissible and impermissible activity. See Marchi v. Bd.

of Coop. Educ. Servs. of Albany, 173 F.3d 469, 476 (2d Cir. 1999) (“when

government endeavors to police itself and its employees in an effort to avoid

transgressing Establishment Clause limits, it must be accorded some leeway, even

though the conduct it forbids might not inevitably be determined to violate the

Establishment Clause”). The Supreme Court has identified “play in the joints” that

permits policies enforcing greater church-state separation than the Establishment

Clause requires. Locke v. Davey, 540 U.S. 712, 718 (2004) (quoting Walz v. Tax

Comm’n of N.Y.C., 397 U.S. 664, 669 (1970)). There need not be a “Scylla and

Charybdis through which any state or federal action must pass in order to survive

constitutional scrutiny.” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450

U.S. 707, 721 (1981) (Rehnquist, J., dissenting). Accordingly, even if Johnson

were found to have a valid free-speech interest in his banners, this Court could

uphold the exclusion of the banners without addressing whether the banners ran

afoul of the Establishment Clause.

If this Court does reach the question of whether Johnson‟s banners violated the

Establishment Clause, it should hold, as urged by the Appellant (see Appellant‟s

Opening Br. 44-46), that Johnson‟s cherry-picked excerpts of religious passages

reflect a manifestly religious purpose and have a primarily religious effect. See

24

McCreary County v. ACLU of Ky., 545 U.S. 844, 870 (2005) (a “display[ that has

an] unstinting focus . . . on religious passages” lifted from documents “with

highlighted references to God as their sole common element” presents “an

indisputable” Establishment Clause violation).5 Indeed, the violation is all the more

troubling because Johnson‟s students are legally compelled to be present in his

classroom. See Lee, 505 U.S. at 592 (discussing “coercive pressure” in public

schools). The Poway Unified School District would have run not just a potential,

but a likely, risk of being found to have violated the Establishment Clause if it had

allowed Johnson‟s displays to remain in place once the displays were brought to

the administration‟s attention. The district court‟s conclusion to the contrary,

announced with nary even a mention of the governing Lemon test (see Decision, 1

Excerpts of R. at 18-20), was erroneous.

5 In evaluating Johnson‟s display under the Establishment Clause, it would not

be proper to consider items displayed elsewhere by other teachers. See Allegheny,

492 U.S. at 598 n.48 (declaring courthouse crèche display unconstitutional while

refusing to consider items elsewhere within the same building); see also ACLU of

Ohio Found., Inc. v. Ashbrook, 375 F.3d 484, 493-94 (6th Cir. 2004) (refusing to

consider courtroom Ten Commandments display in context of nearby items

“posted at different times, by different parties”); Ind. Civil Liberties Union v.

O’Bannon, 259 F.3d 766, 773 (7th Cir. 2001) (refusing to consider Ten

Commandments monument in context of other monuments on Indiana Statehouse

grounds because other monuments were not “directly near[by]”); Glassroth v.

Moore, 229 F. Supp. 2d 1290, 1303-04 (M.D. Ala. 2002) (refusing to consider

courthouse Ten Commandments display in context of items “seventy feet away

with no sign to indicate that they [we]re connected to or related to the monument in

any way”), aff’d, 335 F.3d 1282 (11th Cir. 2003).

25

B. Whether the School District’s Actions Reflected an

Unconstitutional Religious Preference

In holding that the School District preferred other religious viewpoints over

Johnson‟s, the district court cited several other displays that Johnson located

during discovery in classrooms spread throughout the School District. Decision, 1

Excerpts of R. at 004-06. But Johnson has not demonstrated that those displays are

comparable to his banners in any material way.

Some of the items listed by the district court—such as a poster depicting the

lyrics to John Lennon‟s “Imagine”—are on their face incomparable to Johnson‟s

banners because they cannot, when viewed as a whole and in context, be taken to

convey a religious message. See Newdow v. Rio Linda Union Sch. Dist., 597 F.3d

1007, 1019 (9th Cir. 2010) (appearance of words “under God” in Pledge of

Allegiance does not violate Establishment Clause because they appear alongside a

variety of other words that, when viewed as a whole, do not convey a religious

message). Most of the other items—such as the various posters asserting political

messages—are simply not religious at all. Surely the Establishment Clause does

not require a school to purge classroom walls of all viewpoint-based messages—

any more than it must cleanse the curriculum of them. (A different analysis would

pertain if free-speech principles were in play, but they are not.) Government

opines on a wide range of subjects, in schools and elsewhere; indeed, “[i]t is the

very business of government to favor and disfavor points of view on (in modern

26

times, at least) innumerable subjects.” Nat’l Endowment for the Arts v. Finley, 524

U.S. 569, 598 (1998) (Scalia, J., concurring).

With respect to the remaining items—such as the string of Tibetan prayer flags

and a poster depicting Mahatma Gandhi‟s “7 Social Sins”—the record is far too

undeveloped to permit a court to decide whether the School District has preferred

“one religious denomination over another.” Larson, 456 U.S. at 244 (quoted at

Decision, 1 Excerpts of R. at 027). For starters, the record does not indicate

whether the School District knew of these items prior to discovery. The School

District cannot be said to have “preferred” displays of which it did not know. Nor

does the record indicate whether the displays were created by students, members of

the public, or teachers. Messages presented by students and parents, even those

prepared as part of a lesson plan, give rise to free-speech considerations that are

lacking in the context of teacher-created displays. See Walz ex rel. Walz v. Egg

Harbor Twp. Bd. of Educ., 342 F.3d 271, 279-80 (3d Cir. 2003) (recognizing

student‟s free-speech interest in distributing religious materials during school

holiday parties, but finding interest outweighed by school‟s interests in fostering

appropriate learning environment and furthering educational process); Curry ex

rel. Curry v. Hensiner, 513 F.3d 570, 578-79 (6th Cir. 2008) (recognizing free-

speech interest in student‟s wish to sell candy canes with religious message as part

of fifth-grade marketing project, but applying Hazelwood to conclude that interest

27

was outweighed by school‟s legitimate pedagogical concerns); Busch v. Marple

Newtown Sch. Dist., 567 F.3d 89, 96-97 (3d Cir. 2009) (applying Hazelwood to

uphold school‟s decision to disallow parent to present bible story as part of show-

and-tell exercise). The record also fails to indicate whether these other items were

erected as part of a curricular lesson or in some other context—an important fact,

given that religious texts can be studied in the public schools (see Sch. Dist. of

Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963)), provided that it is done in a

manner that entails teaching rather than preaching (see Stone, 449 U.S. at 42).

Indeed, a display can violate the Establishment Clause in one context but be

perfectly permissible in another. See McCreary, 545 U.S. at 866 n.14.

The legitimacy of a School District‟s decision to allow some but not other

displays to remain in place cannot be assessed without these contextual details.

See Lee, 505 U.S. at 597 (“Our Establishment Clause jurisprudence remains a

delicate and fact-sensitive one”). As this Court recognized in Downs, in order to

enable an appellate panel to determine whether a school district has maintained

viewpoint neutrality, a litigant must treat the panel members “not as if we were

pigs sniffing for truffles, but instead [] fill our troughs to the brim with the

relevant, let alone necessary, information.” 228 F.3d at 1007 n.1 (citation omitted).

Here, Johnson has not even begun to provide “the relevant, let alone necessary,

information.” Id. The district court‟s conclusion that the Poway Unified School

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District preferred one religious denomination over another cannot be sustained on

this record.6

CONCLUSION

The decision below is fundamentally misguided. A public-school teacher‟s

school-day presentations to schoolchildren constitute governmental speech. That

speech is subject to the Establishment Clause, but it is not subject to free-speech

protections. Furthermore, Johnson has not carried his burden of demonstrating that

the School District departed from viewpoint neutrality in violation of the

Establishment Clause, the Equal Protection Clause, or California‟s No Preference

Clause. Accordingly, the decision below must be reversed in its entirety.

6 The district court‟s holdings that Poway Unified School District ran afoul of

the Equal Protection Clause and California‟s No Preference Clause are due to be

reversed for the same reason. Those rulings, like the district court‟s Establishment

Clause ruling, were premised on the court‟s conclusion that the School District

failed to maintain viewpoint neutrality. Decision, 1 Excerpts of R. at 029-31.