Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding D.C. No. 3:07-cv-00783-BEN-WVG
The opinion of the court was delivered by: Tallman, Circuit Judge:
Argued and Submitted May 5, 2011-Pasadena, California
Before: Barry G. Silverman, Richard C. Tallman, and Richard R. Clifton, Circuit Judges.
We consider whether a public school district infringes the First Amendment liberties of one of its teachers when it orders him not to use his public position as a pulpit from which to preach his own views on the role of God in our Nation's history to the captive students in his mathematics classroom. The answer is clear: it does not.
When Bradley Johnson, a high school calculus teacher, goes to work and performs the duties he is paid to perform, he speaks not as an individual, but as a public employee, and the school district is free to "take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted." Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995). Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation's history, or God's role in our Nation's history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.
Because we further conclude that the school district did not violate Johnson's rights under either the Establishment or Equal Protection clauses of the United States Constitution, as applied by the Fourteenth Amendment,*fn1 we reverse the district court's award of summary judgment to Johnson and remand with instructions to enter summary judgment in favor of the Poway Unified School District and its officials on all federal and state claims.*fn2
Bradley Johnson has spent more than 30 years teaching math to the students of the Poway Unified School District of San Diego County, California. In August 2003, he moved to the newly opened Westview High School to teach calculus and algebra. He teaches there still and is the faculty sponsor of the school's student Christian club.
In late 2006, a fellow teacher at Westview set this action in motion when he questioned Dawn Kastner, the newly hired principal of Westview, about two large banners prominently displayed in Johnson's classroom. Kastner, who had also heard about Johnson's banners from a student and another teacher, went to Johnson's classroom to see the banners for herself. What she found surprised her. In Johnson's classroom, two large banners, each about seven-feet wide and two-feet tall, hung on the wall. See Appendix. One had red, white, and blue stripes and stated in large block type: "IN GOD WE TRUST"; "ONE NATION UNDER GOD"; "GOD BLESS AMERICA"; and, "GOD SHED HIS GRACE ON THEE."*fn3 The other stated: "All men are created equal, they are endowed by their CREATOR." On that banner, the word "creator" occupied its own line, and each letter of "creator" was capitalized and nearly double the size of the other text.
Kastner recalled being overwhelmed by the size of the banners. She remembered walking into Johnson's class "and going, 'Wow, these are really big.' " She was more concerned, though, about the message. "It was a math class," she later explained. "There were a lot of phrases that individually or in context were not problematic at all. But because they were taken out of context and very large, they became a promotion of a particular viewpoint"-a religious viewpoint "that might make students who didn't share that viewpoint uncomfortable." The "common thread in all of those were the words 'God, Creator.' Those were all sort of pulled out of the context of their original [meaning] - and the signs were, like, 10 feet, 7 feet, something like that. There were two very large signs."
Unsure as to what she should do, Kastner called Melavel Robertson, one of Poway's assistant superintendents. She described the banners to Robertson and told her that "some people [had] mention[ed] that they don't know why these signs are allowed in the classroom, and I just saw what they're talking about." At Robertson's request, she had pictures taken of Johnson's banners and sent to Robertson, who forwarded them to Bill Chiment, the assistant superintendent tasked with "legal issues."
While waiting for further direction from the superintendent's office, Kastner met with Johnson to talk about his banners. She told him that she felt the signs might inappropriately emphasize the words "God" and "Creator" and suggested that his displays might be more appropriate if the passages were each displayed in the context of the historical artifact or document from which they were pulled. "We talked about the possibility of putting the entire thing up in context so if a phrase was from the Declaration [of Independence], put the entire Declaration up." Also, "we talked about taking a smaller version of that and having smaller - smaller expressions of his personal beliefs around his desk area."
Kastner asked Johnson to consider how a student of a different faith
might feel if they walked into his classroom and
saw his banners. "[T]hey may feel like, 'Wow, I'm not welcome,' or
'I'm not gonna fit in this classroom.' And they may feel bad. And I
can't imagine that that would ever be your intent." Johnson was not
convinced. According to Kastner, he told her, "Dawn, sometimes that's
necessary," and refused to either remove his banners or display the
more contextual versions the school offered to provide.*fn4
He explained that he had displayed the banners in some form
or another since 1982, that they simply contained patriotic phrases,
and that he considered it his "right to have them up."
After the meeting with Johnson, Kastner spoke with Chiment and informed him of their discussion. Eventually, the full school board approved the decision to order Johnson to remove the banners. On January 19, 2007, Chiment phoned Johnson and told him that he would need to remove his banners. Four days later, Chiment followed up his phone call with a letter directing Johnson to review Poway Unified School District Administrative Procedure 3.11.2, "The Teaching of Controversial Issues," as well as California Education Code § 51511.*fn5 He told Johnson to pay particular care to Poway's requirement that teachers "[f]ollow the requirements on prohibited instruction as contained in the California Education Code" and "[d]istinguish between teaching and advocating, and refrain from using classroom teacher influence to promote partisan or sectarian viewpoints."
Chiment explained that the "prominent display of these brief and narrow selections of text from documents and songs without the benefit of any context and of a motto, all of which include the word 'God' or 'Creator' has the effect of using your influence as a teacher to promote a sectarian viewpoint." He added that these uses also constituted "aid to a particular religious sect, creed, or sectarian purpose" because they were "not incidental or illustrative of matters properly included in your course of study as a teacher of mathematics."
Johnson complied with the district's order and removed his banners. Shortly thereafter, he filed suit in federal court, alleging that Poway had violated his rights under the First and Fourteenth amendments of the United States Constitution, and article I, sections 2 and 4, of the California Constitution. He sought declaratory and injunctive relief.
After the lawsuit was filed, Johnson conducted site inspections at all four high schools in the school district. He identified and photographed a lengthy list of items he believed displayed sectarian viewpoints, including Tibetan prayer flags; a John Lennon poster with "Imagine" lyrics; a Mahatma Gandhi poster; a poster of Gandhi's "7 Social Sins"; a Dalai Lama poster; a poster that says, "The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality"; and a poster of Malcolm X.*fn6 Both parties also deposed school officials, including Kastner and Chiment, and some teachers, including Johnson. In his deposition, Johnson initially maintained that his banners were purely patriotic with no religious purpose. When pressed, however, he stated:
My purpose was to celebrate our national heritage of - and the national motto saying the Pledge of Allegiance. I know that there's - you know, is it God or is it - or is there no God. If that's the choice, then this is espousing God as opposed to no God, I'll say that, but not any particular God.
He later added, in regard to his selections, "I'm not intending to highlight or promote any of that kind of religious background because I don't know what it was. I'm trying to highlight the religious heritage and nature of our nation, that we have that as a foundation."
On August 14, 2009, cross-motions for summary judgment were filed. On February 25, 2010, the district court granted Johnson summary judgment on each of his claims. It concluded that Poway had created a limited public forum for teacher speech in its classrooms and had impermissibly limited Johnson's speech based upon his viewpoint. It granted Johnson declaratory relief and ordered Poway not to interfere with Johnson's future display. It also found that the school officials were not entitled to qualified immunity and ordered each to pay nominal damages. Johnson later moved for attorney's fees in the amount of $240,563.15. That motion has been stayed pending the outcome of Poway's timely appeal.
We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the district court's grant of summary judgment to "determine, viewing the evidence in the light most favorable to the nonmoving party and drawing all justifiable inferences in its favor, whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). Because the parties filed cross-motions for summary judgment, we consider each party's evidence to evaluate whether summary judgment was appropriate. Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
We consider the district court's determination that Poway violated Johnson's rights under the Free Speech and Establishment clauses of the First Amendment, as well as his equal ...