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
[email protected]
Michael A. Blank
[email protected]
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
TABLE OF CONTENTS
Page
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.
II.
JOHNSON’S FREE-SPEECH CLAIM FAILS BECAUSE THE
MESSAGES THAT TEACHERS IMPART TO STUDENTS IN THE
CLASSROOM ARE ATTRIBUTABLE TO THE GOVERNMENT. . . . . . 2
A.
Teachers Speak on Behalf of the Government When They Make
Presentations to Students During the School Day . . . . . . . . . . . . . . . 3
B.
Attributing a Teacher’s School-Day Speech to the Teacher’s
Employer is Consistent with the Government-Speech Doctrine . . . . 9
C.
Attributing Johnson’s Speech to the School Is Also Consistent with the
Supreme Court’s Public-Employee-Speech Jurisprudence . . . . . . . 11
D.
Classifying Johnson’s Speech as the Government’s Does Not Imperil
Academic Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
E.
The District Court Erred in Relying on Decisions Involving Private
Speech By Students and Outsiders . . . . . . . . . . . . . . . . . . . . . . . . . . 17
JOHNSON FAILED TO DEMONSTRATE AN ESTABLISHMENT
CLAUSE VIOLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A.
Whether Johnson’s Display Violated the Establishment Clause . . . 22
i
B.
Whether the School District’s Actions Reflected an
Unconstitutional Religious Preference . . . . . . . . . . . . . . . . . . . . . . . 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32 . . . . . . . . . . . . 29
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ii
TABLE OF AUTHORITIES
Page(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
iii
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
iv
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
v
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
vi
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 Leandro
Unified School District,
209 P.3d 73 (Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Santa Fe Independent school District v. Doe,
530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
vii
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
viii
Other Authorities:
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, 1940 STATEMENT OF
PRINCIPLES ON ACADEMIC FREEDOM AND TENURE WITH 1970 INTERPRETIVE
COMMENTS (2006) ,
http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm
(follow “this statement” hyperlink) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
ix
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 United
for Separation of Church and State makes the following disclosure:
Americans United for Separation of Church and State is a 501(c)(3) nonprofit
corporation. No publicly held corporation owns Americans United, is an affiliate of
Americans United, or has a financial interest in the outcome of this appeal.
Signed:
/s/ Ayesha N. Khan
x
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 academicfreedom 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
1
from showing a preference for one religion over another, or for religion over nonreligion. 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.
2
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 freespeech 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 100607. 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
3
case of the government itself speaking” and that the teacher thus lacked any freespeech 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
4
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).
5
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 freespeech 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.
6
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 schoolowned 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,
7
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
8
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)).
9
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
10
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
11
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 publicemployee-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 freespeech 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
12
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.
13
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
14
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
15
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).
16
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-onedozen 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 offpoint:
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
17
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 studentrun 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
18
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.
19
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”)).
20
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
21
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,
22
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
23
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).
24
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
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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 freespeech 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
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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 showand-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.
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