Bradley Johnson v. Poway Unified School District, et al

Filing

FILED OPINION (BARRY G. SILVERMAN, RICHARD C. TALLMAN and RICHARD R. CLIFTON) REVERSED AND REMANDED.: RCT Authoring, Johnson shall bear all costs. FILED AND ENTERED JUDGMENT. [7891127]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY R. JOHNSON,
Plaintiff-Appellee,
v.
POWAY UNIFIED SCHOOL DISTRICT;
JEFF MANGUM, individually and in
his official capacity as a Member
of the Board of Education for the
Poway Unified School District;
LINDA VANDERVEEN, individually
and in her official capacity as a
Member of the Board of
Education for the Poway Unified
School District; ANDREW PATAPOW,
individually and in his official
capacity as a Member of the
Board of Education for the Poway
Unified School District; TODD
GUTSCHOW, individually and in his
official capacity as a Member of
the Board of Education for the
Poway Unified School District;
PENNY RANFTLE, individually and
in her official capacity as a
Member of the Board of
Education for the Poway Unified
School District; DONALD A.
PHILLIPS, individually and in his
official capacity as Superintendent
of the Poway Unified School
District;

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JOHNSON v. POWAY UNIFIED SCHOOL DISTRICT

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

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



Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
May 5, 2011—Pasadena, California
Filed September 13, 2011
Before: Barry G. Silverman, Richard C. Tallman, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Tallman

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

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Robert J. Muise (argued), Thomas More Law Center, Ann
Arbor, Michigan, and Charles S. LiMandri, Law Offices of
Charles S. LiMandri, Rancho Santa Fe, California, for
plaintiff-appellee Bradley R. Johnson.
Francisco M. Negron, Jr., National School Boards Association, Alexandria, Virginia, and Thomas E.M. Hutton, Patterson Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle,
Washington, for Amicus Curiae National School Boards
Association and California School Boards Association in Support of defendants-appellants Request for Reversal.
Ayesha N. Khan, Michael A. Blank, Americans United for
Separation of Church and State, Washington, D.C., for
Amicus Curiae Americans United for Separation of Church
and State in Support of appellants.
David Blair-Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, California, for Amicus Curiae
American Civil Liberties Union of San Diego and Imperial
Counties in Support of plaintiff-appellee and Affirmance with
Modification of Judgment.
Steven W. Fitschen, The National Legal Foundation, Virginia
Beach, Virginia, for Amici Curiae Christian Educators Association International and WallBuilders, Inc., in Support of
plaintiff-appellee Urging Affirmance.

OPINION
TALLMAN, Circuit Judge:
We consider whether a public school district infringes the
First Amendment liberties of one of its teachers when it
orders him not to use his public position as a pulpit from
which to preach his own views on the role of God in our

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Nation’s history to the captive students in his mathematics
classroom. The answer is clear: it does not.
When Bradley Johnson, a high school calculus teacher,
goes to work and performs the duties he is paid to perform,
he speaks not as an individual, but as a public employee, and
the school district is free to “take legitimate and appropriate
steps to ensure that its message is neither garbled nor distorted.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515
U.S. 819, 833 (1995). Just as the Constitution would not protect Johnson were he to decide that he no longer wished to
teach math at all, preferring to discuss Shakespeare rather
than Newton, it does not permit him to speak as freely at work
in his role as a teacher about his views on God, our Nation’s
history, or God’s role in our Nation’s history as he might on
a sidewalk, in a park, at his dinner table, or in countless other
locations.
Because we further conclude that the school district did not
violate Johnson’s rights under either the Establishment or
Equal Protection clauses of the United States Constitution, as
applied by the Fourteenth Amendment,1 we reverse the district court’s award of summary judgment to Johnson and
remand with instructions to enter summary judgment in favor
1

The First Amendment provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.

Section 1 of the Fourteenth Amendment provides, in relevant detail:
No State shall . . . deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
“The term ‘liberty’ in the Fourteenth Amendment to the Constitution
makes the First Amendment applicable to the States.” McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 336 n.1 (1995).

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of the Poway Unified School District and its officials on all
federal and state claims.2
I
Bradley Johnson has spent more than 30 years teaching
math to the students of the Poway Unified School District of
San Diego County, California. In August 2003, he moved to
the newly opened Westview High School to teach calculus
and algebra. He teaches there still and is the faculty sponsor
of the school’s student Christian club.
In late 2006, a fellow teacher at Westview set this action in
motion when he questioned Dawn Kastner, the newly hired
principal of Westview, about two large banners prominently
displayed in Johnson’s classroom. Kastner, who had also
heard about Johnson’s banners from a student and another
teacher, went to Johnson’s classroom to see the banners for
herself. What she found surprised her. In Johnson’s classroom, two large banners, each about seven-feet wide and twofeet tall, hung on the wall. See Appendix. One had red, white,
and blue stripes and stated in large block type: “IN GOD WE
TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS
AMERICA”; and, “GOD SHED HIS GRACE ON THEE.”3
The other stated: “All men are created equal, they are
endowed by their CREATOR.” On that banner, the word
“creator” occupied its own line, and each letter of “creator”
was capitalized and nearly double the size of the other text.
Kastner recalled being overwhelmed by the size of the banners. She remembered walking into Johnson’s class “and
2

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

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going, ‘Wow, these are really big.’ ” She was more concerned, though, about the message. “It was a math class,” she
later explained. “There were a lot of phrases that individually
or in context were not problematic at all. But because they
were taken out of context and very large, they became a promotion of a particular viewpoint”—a religious viewpoint
“that might make students who didn’t share that viewpoint
uncomfortable.” The “common thread in all of those were the
words ‘God, Creator.’ Those were all sort of pulled out of the
context of their original [meaning] — and the signs were, like,
10 feet, 7 feet, something like that. There were two very large
signs.”
Unsure as to what she should do, Kastner called Melavel
Robertson, one of Poway’s assistant superintendents. She
described the banners to Robertson and told her that “some
people [had] mention[ed] that they don’t know why these
signs are allowed in the classroom, and I just saw what
they’re talking about.” At Robertson’s request, she had pictures taken of Johnson’s banners and sent to Robertson, who
forwarded them to Bill Chiment, the assistant superintendent
tasked with “legal issues.”
While waiting for further direction from the superintendent’s office, Kastner met with Johnson to talk about his banners. She told him that she felt the signs might inappropriately
emphasize the words “God” and “Creator” and suggested that
his displays might be more appropriate if the passages were
each displayed in the context of the historical artifact or document from which they were pulled. “We talked about the possibility of putting the entire thing up in context so if a phrase
was from the Declaration [of Independence], put the entire
Declaration up.” Also, “we talked about taking a smaller version of that and having smaller — smaller expressions of his
personal beliefs around his desk area.”
Kastner asked Johnson to consider how a student of a different faith might feel if they walked into his classroom and

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saw his banners. “[T]hey may feel like, ‘Wow, I’m not welcome,’ or ‘I’m not gonna fit in this classroom.’ And they may
feel bad. And I can’t imagine that that would ever be your
intent.” Johnson was not convinced. According to Kastner, he
told her, “Dawn, sometimes that’s necessary,” and refused to
either remove his banners or display the more contextual versions the school offered to provide.4 He explained that he had
displayed the banners in some form or another since 1982,
that they simply contained patriotic phrases, and that he considered it his “right to have them up.”
After the meeting with Johnson, Kastner spoke with Chiment and informed him of their discussion. Eventually, the
full school board approved the decision to order Johnson to
remove the banners. On January 19, 2007, Chiment phoned
Johnson and told him that he would need to remove his banners. Four days later, Chiment followed up his phone call with
a letter directing Johnson to review Poway Unified School
District Administrative Procedure 3.11.2, “The Teaching of
Controversial Issues,” as well as California Education Code
§ 51511.5 He told Johnson to pay particular care to Poway’s
requirement that teachers “[f]ollow the requirements on prohibited instruction as contained in the California Education
Code” and “[d]istinguish between teaching and advocating,
and refrain from using classroom teacher influence to promote
partisan or sectarian viewpoints.”
4

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

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Chiment explained that the “prominent display of these
brief and narrow selections of text from documents and songs
without the benefit of any context and of a motto, all of which
include the word ‘God’ or ‘Creator’ has the effect of using
your influence as a teacher to promote a sectarian viewpoint.”
He added that these uses also constituted “aid to a particular
religious sect, creed, or sectarian purpose” because they were
“not incidental or illustrative of matters properly included in
your course of study as a teacher of mathematics.”
Johnson complied with the district’s order and removed his
banners. Shortly thereafter, he filed suit in federal court, alleging that Poway had violated his rights under the First and
Fourteenth amendments of the United States Constitution, and
article I, sections 2 and 4, of the California Constitution. He
sought declaratory and injunctive relief.
After the lawsuit was filed, Johnson conducted site inspections at all four high schools in the school district. He identified and photographed a lengthy list of items he believed
displayed sectarian viewpoints, including Tibetan prayer
flags; a John Lennon poster with “Imagine” lyrics; a Mahatma
Gandhi poster; a poster of Gandhi’s “7 Social Sins”; a Dalai
Lama poster; a poster that says, “The hottest places in hell are
reserved for those who in times of great moral crisis, maintain
their neutrality”; and a poster of Malcolm X.6 Both parties
also deposed school officials, including Kastner and Chiment,
and some teachers, including Johnson. In his deposition,
Johnson initially maintained that his banners were purely
patriotic with no religious purpose. When pressed, however,
he stated:
My purpose was to celebrate our national heritage of
— and the national motto saying the Pledge of Allegiance. I know that there’s — you know, is it God
6

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

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or is it — or is there no God. If that’s the choice,
then this is espousing God as opposed to no God, I’ll
say that, but not any particular God.
He later added, in regard to his selections, “I’m not intending
to highlight or promote any of that kind of religious background because I don’t know what it was. I’m trying to highlight the religious heritage and nature of our nation, that we
have that as a foundation.”
On August 14, 2009, cross-motions for summary judgment
were filed. On February 25, 2010, the district court granted
Johnson summary judgment on each of his claims. It concluded that Poway had created a limited public forum for
teacher speech in its classrooms and had impermissibly limited Johnson’s speech based upon his viewpoint. It granted
Johnson declaratory relief and ordered Poway not to interfere
with Johnson’s future display. It also found that the school
officials were not entitled to qualified immunity and ordered
each to pay nominal damages. Johnson later moved for attorney’s fees in the amount of $240,563.15. That motion has
been stayed pending the outcome of Poway’s timely appeal.
II
We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo the district court’s grant of summary judgment to “determine, viewing the evidence in the light most
favorable to the nonmoving party and drawing all justifiable
inferences in its favor, whether there are any genuine issues
of material fact and whether the moving party is entitled to
judgment as a matter of law.” Orr v. Bank of Am., NT & SA,
285 F.3d 764, 772 (9th Cir. 2002). Because the parties filed
cross-motions for summary judgment, we consider each
party’s evidence to evaluate whether summary judgment was
appropriate. Fair Hous. Council of Riverside Cnty., Inc. v.
Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).

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III
We consider the district court’s determination that Poway
violated Johnson’s rights under the Free Speech and Establishment clauses of the First Amendment, as well as his equal
protection rights under the Fourteenth Amendment.
A
We address first whether the district court erred in holding
that Poway violated Johnson’s federal free speech rights when
it ordered that he no longer display his banners in his classroom.
In undertaking this inquiry, we consider whether the court
erred in applying a pure forum-based analysis rather than the
Pickering-based inquiry crafted by the Supreme Court to measure the constitutionality of the government’s curtailment of
government-employee speech. Pickering v. Bd. of Educ. of
Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568
(1968) (“[T]he State has interests as an employer in regulating
the speech of its employees that differ significantly from
those it possesses in connection with regulation of the speech
of the citizenry in general.”). Because we hold that Pickering’s employee-speech analysis controls, we further consider
whether Poway’s actions ran afoul of the sequential five-step
Pickering-based test we adopted in Eng v. Cooley, 552 F.3d
1062, 1070-72 (9th Cir. 2009). As we can conceive of no
basis for concluding that Johnson’s speech was protected, we
reverse the district court’s award of summary judgment on
this issue and remand with instructions to enter judgment in
favor of Poway.
1
[1] To some degree, we can understand the district court’s
mistake. An analysis of the government’s regulation of speech
ordinarily hinges on the context, or forum, in which the

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speech takes place. See, e.g., Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 44-46 (1983). Under
that traditional rubric, the government’s power is at its least
when speech takes place in a public forum, is greater when it
is regulating speech in a limited public forum, and is at its
greatest when regulating speech in a non-public forum. Id.
[2] However, the Supreme Court has held that where the
government acts as both sovereign and employer, this general
forum-based analysis does not apply. Pickering, 391 U.S. at
568; accord Garcetti v. Ceballos, 547 U.S. 410, 417-19
(2006); City of San Diego, Cal. v. Roe, 543 U.S. 77, 80 (2004)
(“[A] governmental employer may impose certain restraints
on the speech of its employees, restraints that would be
unconstitutional if applied to the general public.”). Instead,
the Court applies a distinct Pickering-based analysis that “reconcile[s] the employee’s right to engage in speech and the
government employer’s right to protect its own legitimate
interests in performing its mission.” Roe, 543 U.S. at 82.
As initially described in Pickering, this analysis required
only that courts balance “ ‘the interests of the [public
employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs
through its employees.’ ” Eng, 552 F.3d at 1070 (alteration in
original) (quoting Pickering, 391 U.S. at 568). Since Pickering, however, the test has evolved. See, e.g., Ceballos, 547
U.S. at 423-24, 426 (speech must not be made pursuant to
duties as employee); Roe, 543 U.S. at 82-83 (“speech must
touch on a matter of ‘public concern’ ” (citing Connick v.
Myers, 461 U.S. 138, 143 (1983)); Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977) (causation). We have distilled this evolution into a “sequential fivestep” inquiry:
(1) whether the plaintiff spoke on a matter of public
concern; (2) whether the plaintiff spoke as a private

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citizen or public employee; (3) whether the plaintiff ’s protected speech was a substantial or motivating factor in the adverse employment action; (4)
whether the state had an adequate justification for
treating the employee differently from other members of the general public; and (5) whether the state
would have taken the adverse employment action
even absent the protected speech.
Eng, 552 F.3d at 1070. Notably, “because these are sequential
steps,” a plaintiff ’s failure to satisfy a single one “necessarily
concludes our inquiry.” Huppert v. City of Pittsburg, 574 F.3d
696, 703 (9th Cir. 2009).
Despite Pickering and its progeny, the district court concluded that “the Pickering balancing test for government
employee speech is the wrong test to apply” to measure the
legality of Poway’s actions. Johnson v. Poway Unified Sch.
Dist., No. 3:07-cv-783-BEN-WVG, 2010 WL 768856, at *8
(S.D. Cal. Feb. 25, 2010). It rested this conclusion on a single
fact—that Johnson’s speech occurred in school, noting “ ‘[i]t
can hardly be argued that either students or teachers shed
their constitutional rights to freedom of speech or expression
at the schoolhouse gate.’ ” Id. at *7 (alteration in original)
(quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503, 506 (1969) (emphasis added)). On appeal, Johnson
urges us to follow suit. We decline his invitation.
[3] Contrary to Johnson’s belief and the district court’s
determination, no justifiable cause exists for refusing to apply
our Pickering-based analysis to Johnson’s claim. See Tucker
v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir. 1996)
(applying Pickering) (“Casting these red herrings aside, we
look instead to applicable doctrine, which is found in the case
law governing employee speech in the workplace.”); see also
Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 649-50 (9th Cir.
2006) (rejecting an employee’s contention that a “stricter test”
than our Pickering-based analysis should apply when the

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underlying speech is religious); Downs v. L.A. Unified Sch.
Dist., 228 F.3d 1003, 1016 (9th Cir. 2000).7 First, our “school
speech” precedent in no way suggests that Pickering does not
control in cases of in-school teacher speech. Not one of those
cases relied upon by the district court applied a Pickeringbased analysis because not one involved a government
employee—a fact that renders Pickering’s absence not only
unsurprising, but necessary. Compare Johnson, 2010 WL
768856, at *8 (citing cases), with Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 266 (1988) (student journalists);
Truth v. Kent Sch. Dist., 542 F.3d 634, 648-49 (9th Cir. 2008)
(student Bible club), overruled on other grounds by L.A.
Cnty., Cal. v. Humphries, 131 S. Ct. 447 (2010); Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007) (student); and Hills
v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044,
1048-50 (9th Cir. 2003) (per curiam) (religious non-profit
corporation).
Pickering and Tinker are not mutually exclusive concepts.
Tinker, 393 U.S. at 506 (“First Amendment rights, applied in
light of the special characteristics of the school environment,
are available to teachers and students.” (emphasis added)).
The very basis for undertaking a Pickering-based analysis of
teacher speech, whether in-class or out, is the Court’s recognition that teachers do not “relinquish the First Amendment
rights they would otherwise enjoy as citizens to comment on
matters of public interest in connection with the operation of
the public schools in which they work.” Pickering, 391 U.S.
at 568. That much should be evident from the test itself,
7

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

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which requires that we “balance between the interests of the
teacher, as a citizen, . . . and the interest of the State.” Id.
(emphasis added); accord Ceballos, 547 U.S. at 418 (noting
that absent a First Amendment right there can be no First
Amendment claim).
Thus, to do as Johnson suggests would require us to ignore
that Pickering itself concerned a school district’s attempt to
curtail the out-of-school speech of a high school teacher. 391
U.S. at 564, 568. It would require us to forget the very rationale undergirding the Court’s creation of the Pickering doctrine: that “[w]hen a citizen enters government service, the
citizen by necessity must accept certain limitations on his or
her freedom,” or else “there would be little chance for the
efficient provision of public services.” Ceballos, 547 U.S. at
418 (citing Connick, 461 U.S. at 143 (“[G]overnment offices
could not function if every employment decision became a
constitutional matter.”)). It would require that we somehow
conclude that a teacher’s in-school speech warrants greater
protection than his or her out-of-school speech—a proposition
directly at odds with the common understanding of Pickering
and its progeny. Id. at 423-24 (explaining that “public statements” made “outside the course of performing . . . official
duties” engender the greatest “First Amendment protection
because that is the kind of activity engaged in by citizens who
do not work for the government”); see Downs, 228 F.3d at
1016.
Moreover, addressing similar claims in similar contexts, we
have refused to unnecessarily narrow Pickering’s application.
Berry, 447 F.3d at 649 (declining to apply a forum-based
analysis to evaluate the government’s curtailment of an
employee’s religious speech “because [the forum analysis]
does not take into consideration the employer’s interests that
led the Supreme Court to adopt the Pickering balancing test
in the first place.”); id. at 650 (“Here, Mr. Berry contends that
his speech is protected under the First Amendment as religious speech, rather than as comments upon matters of public

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concern. Nonetheless, we conclude that the Pickering balancing approach applies regardless of the reason an employee
believes his or her speech is constitutionally protected.”);
Tucker, 97 F.3d at 1210.
So too have our sister circuits. When addressing claims
concerning in-school teacher speech, each has applied Pickering to measure the constitutionality of the government’s conduct. E.g., Evans-Marshall v. Bd. of Educ. of Tipp City
Exempted Vill. Sch. Dist., 624 F.3d 332, 340 (6th Cir. 2010);
Borden v. Sch. Dist. of East Brunswick, 523 F.3d 153, 171 (3d
Cir. 2008) (holding under Pickering-based analysis that
school could prohibit faculty participation in student-initiated
prayer); Lee v. York Cnty. Sch. Div., 484 F.3d 687, 700 (4th
Cir. 2007) (holding under a Pickering-based analysis that a
school board did not infringe the rights of a teacher when it
ordered him to remove religious material from a classroom
bulletin board); Brammer-Hoelter v. Twin Peaks Charter
Acad., 492 F.3d 1192, 1204 (10th Cir. 2007); Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007);
Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477,
479-80 (7th Cir. 2007) (applying Pickering-based test and
holding that “the [F]irst [A]mendment does not entitle primary and secondary teachers, when conducting the education
of captive audiences, to cover topics, or advocate viewpoints,
that depart from the curriculum adopted by the school system”). We see no reason to depart from their company.
[4] In sum, we think it plain that the appropriate guide for
measuring the legality of the government’s curtailment of
employee speech in the workplace, including that of teachers,
would be that Supreme Court “case law governing employee
speech in the workplace.” See Tucker, 97 F.3d at 1210 (citing
Pickering); see also Downs, 228 F.3d at 1012, 1015. The district court erred by declining to apply the controlling
Pickering-based analysis.

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2
Having identified the Pickering-based approach as the
appropriate standard by which to measure Poway’s conduct,
we apply our five-step Pickering-based analysis to determine
whether Poway violated Johnson’s federal free speech rights
when it ordered that he remove his banners from his classroom.8
Applying that standard, we conclude that there is no legitimate question as to whether the school violated Johnson’s
rights—it did not. Downs, 228 F.3d at 1016; see EvansMarshall, 624 F.3d at 340; Mayer, 474 F.3d at 479-80;
Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 491 (3d Cir.
1998) (“[A]lthough a teacher’s out-of-class conduct, including her advocacy of particular teaching methods, is protected,
her in-class conduct is not.” (citation and internal quotation
marks omitted)); see also Borden, 523 F.3d at 171; Lee, 484
F.3d at 700. Though we do not lightly conclude that Johnson
surpasses Eng-step one, “(1) whether the plaintiff spoke on a
matter of public concern,” 552 F.3d at 1070, we recognize
that our hesitation is driven not by the nature of the speech
itself but by the “in-school” setting and opportunity for that
speech. These concerns underlie our inquiry under Eng-step
two, “(2) whether the plaintiff spoke as a private citizen or
public employee,” id. at 1071 (relying on Ceballos, 547 U.S.
at 423-24), and lead us to conclude that Johnson spoke as an
employee, not as a citizen. Accordingly, we climb no further.
Huppert, 574 F.3d at 703 (“[F]ailure to meet one [step] necessarily concludes our inquiry.”).
8

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

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a
[5] Under Eng, Johnson must first demonstrate that his
banners “touched upon a matter of public concern.” Connick,
461 U.S. at 149; Eng, 552 F.3d at 1070.
This inquiry “is one of law, not fact.” Connick, 461 U.S. at
148 n.7. And our aim, at least in theory, is simple: to determine whether the content of the employee’s speech is sufficiently important to the public that its curtailment “warrant[s]
judicial review.” Berry, 447 F.3d at 649; accord Roe, 543
U.S. at 82-83.
To put theory into practice, we undertake a “generalized
analysis of the nature of the speech.” Desrochers v. City of
San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009); see Weeks
v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001) (declining to
adopt “rigid multi-part tests that would shoehorn communication into ill-fitting categories”). Under that analysis, we consider generally “the content, form, and context of a given
statement, as revealed by the whole record,” id. (quoting Connick, 461 U.S. at 147-48), to ascertain whether speech “fairly
can be said to relate to ‘any matter of political, social, or other
concern to the community,’ ” Huppert, 574 F.3d at 703 (quoting Connick, 461 U.S. at 147-48).
Of the three concerns, content is king. Desrochers, 572
F.3d at 710. It is “the greatest single factor in the Connick
inquiry,” id., and our primary concern. See, e.g., Rankin v.
McPherson, 483 U.S. 378, 386-87 (1987); Givhan v. W. Line
Consol. Sch. Dist., 439 U.S. 410, 414-16 (1979).9 Form and
9

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

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context only truly inform our legal inquiry in those “close”
cases where “the subject matter of a statement is only marginally related to issues of public concern.” Desrochers, 572 F.3d
at 710 (quoting Johnson v. Multnomah Cnty., Or., 48 F.3d
420, 425 (9th Cir. 1995)). In those cases, “the fact that [a
statement] was made because of a grudge or other private
interest or to co-workers rather than to the press may lead the
court to conclude that the statement does not substantially
involve a matter of public concern.” Id. (quoting Multnomah
Cnty., 48 F.3d at 425).
[6] In the present case, our crowning of content is dispositive. Desrochers, 572 F.3d at 710; see Rankin, 483 U.S. at
386-87. Though Johnson maintains that his banners express
purely patriotic sentiments—that they concern “well-known
historical, patriotic phrases and slogans central to our
Nation’s history”—it seems as plain to us as it was to school
officials that Johnson’s banners concern religion. As Johnson
conceded at his deposition, “[T]his is discussing God as
opposed to no God . . . . I’m trying to highlight the religious
heritage and nature of our nation, that we have that as a foundation.” Moreover, his after-the-fact statements merely reinforce the obvious. One would need to be remarkably
unperceptive to see the statements “IN GOD WE TRUST,”
“ONE NATION UNDER GOD,” “GOD BLESS AMERICA,” “GOD SHED HIS GRACE ON THEE,” and “All men
are created equal, they are endowed by their CREATOR,” as
public concern and should thus be subject to Pickering balancing” regardless of the manner in which they were conveyed. (discussing Rankin)).
Similarly, in Givhan, the Court rejected the assertion that Mrs. Givhan, a
public high school teacher, had forfeited her First Amendment interest in
her speech protesting “racial discrimination—a matter inherently of public
concern,” Connick, 461 U.S. at 148 n.8—simply because she “arrange[d]
to communicate privately with h[er] employer rather than to spread h[er]
views before the public.” 439 U.S. at 414-16.

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organized and displayed by Johnson and not understand them
to convey a religious message.10 See Appendix.
[7] Because speech concerning religion is unquestionably
of inherent public concern, Tucker, 97 F.3d at 1212-13; see
Connick, 461 U.S. at 144 (“[I]t [i]s already ‘too late in the day
to doubt that the liberties of religion and expression may be
infringed by the denial of or placing of conditions upon a benefit or privilege.’ ” (quoting Sherbert v. Verner, 374 U.S. 398,
404 (1963))), our inquiry under Eng step one is concluded,
and we climb to the second step of Eng.11
10

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

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b
[8] The second Eng step requires Johnson to show that he
“spoke as a private citizen,” not as a “public employee.” Eng,
552 F.3d at 1070-71.12
Two inquiries are necessary to resolve this mixed question
of law and fact. Posey v. Lake Pend Oreille Sch. Dist. No. 84,
546 F.3d 1121, 1129 (9th Cir. 2008). First, a factual determination must be made as to the “scope and content of a plaintiff ’s job responsibilities.” Eng, 552 F.3d at 1071. In
undertaking this inquiry, courts are not to rely mechanically
on formal or written job descriptions, which “often bear little
resemblance to the duties an employee actually is expected to
perform.” Ceballos, 547 U.S. at 424-25. “The proper inquiry
is a practical one.” Id. at 424.
Second, the “ultimate constitutional significance” of those
facts must be determined as a matter of law. Eng, 552 F.3d
at 1071 (citations and internal quotation marks omitted). If
Johnson spoke as any ordinary citizen might, then our inquiry
continues. Ceballos, 547 U.S. at 419. But if Johnson’s speech
“owes its existence” to his position as a teacher, then Johnson
spoke as a public employee, not as a citizen, and our inquiry
is at an end. Id. at 421-22 (The First Amendment “does not
invest [government employees] with a right to perform their
jobs however they see fit.”); Evans-Marshall, 624 F.3d at 340
(concluding that when teacher speaks as a government
employee “the school board that hires that speech . . . can
surely ‘regulate the content of what is or is not expressed’ ”
(quoting Rosenberger, 515 U.S. at 833 (The government
12

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

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retains the power to “regulate the content of what is or is not
expressed when it is the speaker or when it enlists private
entities to convey its own message.”))); see Downs, 228 F.3d
at 1013 (“Simply because the government opens its mouth to
speak does not give every outside individual or group a First
Amendment right to play ventriloquist.”).
Our factual issue is not in dispute. Johnson does not hold
a unique or exotic government position. As found by the district court, he is a math teacher who performs the ordinary
duties of a math teacher. Johnson, 2010 WL 768856, at *2.
In addition, Johnson did not make his speech while performing a function not squarely within the scope of his position.13
He was not running errands for the school in a car adorned
with sectarian bumper stickers or praying with people sheltering in the school after an earthquake. “Rather, Johnson hung
his banners pursuant to a long-standing Poway Unified School
District policy, practice, and custom,” id., of permitting teachers to decorate their classrooms subject to specific limitations
and the satisfaction of the principal or a District administrator.
[9] More importantly, we recognize that “[e]xpression is a
teacher’s stock in trade, the commodity she sells to her
employer in exchange for a salary.” Mayer, 474 F.3d at 479;
Evans-Marshall, 624 F.3d at 340. Thus, as a practical matter,
we think it beyond possibility for fairminded dispute that the
“scope and content of [Johnson’s] job responsibilities” did not
include speaking to his class in his classroom during class
hours. Cf. Ceballos, 547 U.S. at 424.
13

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

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[10] We consider next our legal inquiry: whether Johnson’s speech owes its existence to his position, or whether he
spoke just as any non-employee citizen could have. The
answer is clear; he spoke as an employee. Downs, 228 F.3d
at 1015; see also Peloza, 37 F.3d at 522-23. Certainly, Johnson did not act as a citizen when he went to school and taught
class, took attendance, supervised students, or regulated their
comings-and-goings; he acted as a teacher—a government
employee. Cf. Ceballos, 547 U.S. at 422 (“Ceballos did not
act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. . . . When he went to work
and performed the tasks he was paid to perform, Ceballos
acted as a government employee.”). Similarly, Johnson did
not act as an ordinary citizen when “espousing God as
opposed to no God” in his classroom. Peloza, 37 F.3d at
522-23; Mayer, 474 F.3d at 479-80 (“The Constitution does
not entitle teachers to present personal views to captive audiences against the instructions of elected officials.”); see Lee,
484 F.3d at 695.
As we recognized in Peloza,14 teachers do not cease acting
as teachers each time the bell rings or the conversation moves
beyond the narrow topic of curricular instruction. Peloza, 37
F.3d at 522; see Downs, 228 F.3d at 1015. Rather, because of
the position of trust and authority they hold and the impressionable young minds with which they interact, teachers necessarily act as teachers for purposes of a Pickering inquiry
when at school or a school function, in the general presence
14

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

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of students, in a capacity one might reasonably view as official.15
Peloza, 37 F.3d at 522; Tucker, 97 F.3d at 1210, 1212-13 (“A
teacher appears to speak for the state when he or she teaches;
therefore, the department may permissibly restrict such religious advocacy.”)16; see Aguillard, 482 U.S. at 584 (“The
State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’
emulation of teachers as role models and the children’s susceptibility to peer pressure.”); Downs, 228 F.3d at 1015; see
also Berry, 447 F.3d at 651-52 (discussing displays in public
areas of government offices).
[11] An ordinary citizen could not have walked into Johnson’s classroom and decorated the walls as he or she saw fit,
anymore than an ordinary citizen could demand that students
remain in their seats and listen to whatever idiosyncratic perspective or sectarian viewpoints he or she wished to share.
See Peloza, 37 F.3d at 522-23; Mayer, 474 F.3d at 479-80;
Lee, 484 F.3d at 695. Unlike Pickering, who wrote a letter to
his local newspaper as any citizen might, 391 U.S. at 564, or
Givhan, who met with her school’s principal, a fellow
employee who willingly “opened his office door to” her
speech, 439 U.S. at 415, Johnson took advantage of his position to press his particular views upon the impressionable and
“captive” minds before him. See Aguillard, 482 U.S. at
583-84; Tucker, 97 F.3d at 1203.
15

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

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Finally, as Downs demonstrates, we need not reach a different conclusion simply because Poway allows its teachers
some freedom in decorating their classrooms. 228 F.3d at
1011-12. In Downs, high school teachers and other staff members created a bulletin board in a school hallway on which
staff could post, pursuant to a school board policy, materials
related to “Gay and Lesbian Awareness Month.” Id. at 1006.
Like Poway’s policy for classroom decoration, “[m]aterials
did not need approval before posting on the Gay and Lesbian
Awareness bulletin boards, but were subject to the oversight
of the school principal, who had ultimate authority within the
school over the content of the boards.” Id. Also like Poway’s
policy, the school policy at issue in Downs permitted only
faculty and staff to post materials, but allowed “[m]aterials
. . . cover[ing] a wide range of topics” to be posted. Id.
Dissatisfied with the materials being posted by his coworkers, Downs decided to counteract their message by hanging a competing bulletin board on which he posted his own
anti-homosexual materials. Id. at 1006-07. After his coworkers complained, the school district ordered that he
remove his board and materials. Id. at 1007. Like Johnson,
Downs sued. Id. at 1008.
[12] On appeal, we quickly cast aside Downs’s contention,
echoed by Johnson today, that the school had created a limited public forum either by allowing teachers to post materials
of their choosing or by not “strictly policing” those materials
posted and had thus relinquished its right to restrict the viewpoints expressed.17 Id. at 1011-12; Tucker, 97 F.3d at 1209.18
17

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

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We concluded that it would be better “to focus on who actually was responsible for the speech on Leichman High’s . . .
bulletin boards”: the government. Downs, 228 F.3d at
1011-12.
Only school faculty and staff had access to post
materials on these boards. While these faculty and
staff members may have received materials from
outside organizations, the faculty and staff members
alone posted material on the bulletin boards, and at
all times their postings were subject to the oversight
of the school principals. Although much, if not all,
of what Downs posted appeared on the bulletin
board directly across the hall from his assigned
classroom, the proximity of the board to his classroom detracts in no way from the conclusion that the
bulletin board, like all others in Leichman High’s
halls, were the property and responsibility of Leichman High and LAUSD. That Leichman High’s principals do not spend the majority of their days
roaming the school’s halls strictly policing—or, in
Downs’s point of view, censoring—the school’s bulletin boards does not weaken our conclusion that
there is no genuine issue of material fact concerning
whether [the principals] had the authority to enforce
and give voice to school district and school board
In Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 802
. . . (1985), the Court stated, “[t]he government does not create
a public forum by inaction or by permitting limited discourse, but
only by intentionally opening a nontraditional forum for public
discourse.” (emphasis added). Assuming that Tucker and his coworkers talked about whatever they wanted to at work (before the
passage of the challenged order), and that they posted all sorts of
materials on the walls, that still would not show that the government had intentionally opened up the workplace for public discourse.
97 F.3d at 1209.

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policy. Inaction does not necessarily demonstrate a
lack of ability or authority to act.
***
We do not face an example of the government
opening up a forum for either unlimited or limited
public discussion. Instead, we face an example of the
government opening up its own mouth . . . .
Id. at 1011-12. Accordingly, the board could “ ‘take legitimate and appropriate steps to ensure that its message [wa]s
neither garbled nor distorted’ by its individual messengers,”
including ordering Downs to curtail his speech. Id. at 1011,
1013 (quoting Rosenberger, 515 U.S. at 833 (“[W]hen the
government appropriates public funds to promote a particular
policy of its own it is entitled to say what it wishes.”)). We
see no reason why the logic of Downs should not apply in the
present case.19 Johnson spoke as an employee, not as a citizen.
[13] In sum, nothing in our holding today prevents Johnson from himself propounding his own opinion on “the religious heritage and nature of our nation” or how “God places
prominently in our Nation’s history.” “Subject to any applicable forum analysis, he may [generally] do so on the sidewalks,
19

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

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in the parks, through the chat-rooms, at his dinner table, and
in countless other locations.” Id. at 1016 (citing Rust v. Sullivan, 500 U.S. 191, 198 (1991)). “He may not do so, however,
when he is speaking as the government, unless the government allows him to be its voice.” Id.; see Pleasant Grove, 129
S. Ct. at 1131 (“The Free Speech Clause restricts government
regulation of private speech; it does not regulate government
speech.”). Because the speech at issue owes its existence to
Johnson’s position as a teacher, Poway acted well within constitutional limits in ordering Johnson not to speak in a manner
it did not desire. Ceballos, 547 U.S. at 421-22; Downs, 228
F.3d at 1013 (citing Rosenberger, 515 U.S. at 833); Peloza,
37 F.3d at 522-23.
B
If the displays at issue in this case did not concern religion,
our identification of the speech as the government’s would
end our inquiry. Ceballos, 547 U.S. at 421-22. As we have
discussed, the Free Speech Clause “has no application” to
government speech, Pleasant Grove, 129 S. Ct. at 1131, and,
as we will discuss, individuals like Johnson have no personal
interest in government speech on which to base an equal protection claim, Downs, 228 F.3d at 1017; see Ceballos, 547
U.S. at 421-22. In regard to those claims, the bare fact that the
speech belongs to the government is dispositive.
The same cannot be said for the Establishment Clause,
however. That Clause does apply to government speech. E.g.,
Pleasant Grove, 129 S. Ct. at 1131-32 (noting that the “involvement of public officials in advocacy may be limited by
law, regulation, or practice,” including the Establishment
Clause). And thus the government could run afoul of the
Clause either through its speech, id., or, as argued by Johnson,
through its act to curtail its speech—in this case, the display
of the banners,20 see Vasquez v. L.A. Cnty., 487 F.3d 1246,
20
To be clear, Johnson and amici err in asserting that Poway could only
curtail Johnson’s display if the banners violated the Establishment Clause.
In fact, the opposite is true. Poway may freely curtail its own speech
unless that curtailment runs afoul of the Establishment Clause.

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1247-48, 1254-58 (9th Cir. 2007) (evaluating whether the
removal of a cross from the Los Angeles County seal “conveyed a state-sponsored message of hostility toward Christians” in contravention of the Establishment Clause). In short,
as Johnson complains, that Poway’s “policy, practice, and/or
custom, of prohibiting [the] banners,” while permitting other
displays,21 “conveys an impermissible, government-sponsored
message of disapproval of and hostility toward the Christian
religion . . . and our Nation’s Judeo-Christian heritage.”22
The district court found that the government had done just
that; it ruled that Poway had violated the Establishment
Clause by endorsing “Buddhist, Hindu, and anti-religious
speech . . . while silencing the Judeo-Christian speech of
Johnson.” Johnson, 2010 WL 768856, at *19. We review that
conclusion de novo, Vasquez, 487 F.3d at 1254, and believe
the claim involves two distinct but related contentions. First,
that Poway evidenced a hostility toward Judeo-Christianity in
curtailing the display of the banners, and second, that it displayed a hostility toward Judeo-Christianity and an endorsement of other religious beliefs via its presentation of the
“other displays.”
[14] We start with the basics. The Establishment Clause
does not wholly preclude the government from referencing
religion. Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528,
1534 (9th Cir. 1985) (“Not all mention of religion is prohibited in public schools.”); see also Stone v. Graham, 449 U.S.
39, 42 (1980) (per curiam) (“[T]he Bible may constitutionally
21
To recap, we refer to the Tibetan prayer flags; a John Lennon poster
with “Imagine” lyrics; a Mahatma Gandhi poster; a poster of Gandhi’s “7
Social Sins”; a Dalai Lama poster; a poster that says, “The hottest places
in hell are reserved for those who in times of great moral crisis, maintain
their neutrality”; and a poster of Malcolm X.
22
We think it worthwhile to note the inherent inconsistency of Johnson’s
claims. If Johnson’s speech does not contain some religious import, then
we would be hard-pressed to see how the cessation of that speech evidences a “hostility toward the Christian religion.”

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be used in an appropriate study of history, civilization, ethics,
comparative religion, or the like.”). Not only would such a
drastic and draconian requirement raise substantial difficulties
as to what might be left to talk about, but, as the district court
took great pains to point out, it would require that we ignore
much of our own history and that of the world in general.23 Cf.
Grove, 753 F.2d at 1534 (noting Stone).
[15] Rather, what the Clause requires is “governmental
neutrality”—“neutrality between religion and religion, and
between religion and nonreligion.” McCreary Cnty., Ky. v.
ACLU of Ky., 545 U.S. 844, 860 (2005) (quoting Epperson v.
Arkansas, 393 U.S. 97, 104 (1968)) (other citations omitted).
It requires that the government “not be overtly hostile to religion but also that it may not place its prestige, coercive
authority, or resources behind a single religious faith or
behind religious belief in general, compelling nonadherents to
support the practices or proselytizing of favored religious
organizations and conveying the message that those who do
not contribute gladly are less than full members of the community.” Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 9 (1989)
(plurality opinion); see Lemon v. Kurtzman, 403 U.S. 602,
612 (1971). In essence, the Clause serves not as a closed door,
but as a judicious chaperone; it permits a certain degree of
impartial and friendly dialogue, but is swift to step in once
that dialogue turns stigmatic or coercive. Tex. Monthly, 489
U.S. at 9; Trunk v. City of San Diego, 629 F.3d 1099, 1109
(9th Cir. 2011); see McCreary Cnty., 545 U.S. at 876 (“‘The
constitutional obligation of “neutrality” . . . is not so narrow
a channel that the slightest deviation from an absolutely
straight course leads to condemnation.’ ” (quoting Sherbert,
374 U.S. at 422 (Harlan, J., dissenting), with approval)).
23

For instance, one could not discuss Egyptian pyramids, Greek philosophers, the Crusades, or the Mayflower if even incidental or colloquial references to objects or individuals of religious significance were
constitutionally taboo.

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[16] To determine whether the government has strayed too
far from the straight course, we continue to apply the threefactor test set forth in Lemon. “Under Lemon, a government
act is consistent with the Establishment Clause if it: (1) has
a secular purpose; (2) has a principal or primary effect that
neither advances nor disapproves of religion; and (3) does not
foster excessive governmental entanglement with religion.”
Vasquez, 487 F.3d at 1255 (citing Lemon, 403 U.S. at
612-13); accord McCreary Cnty., 545 U.S. at 859, 875. We
have noted, however, that “[i]n recent years, the Supreme
Court essentially has collapsed these last two prongs to ask
‘whether the challenged governmental practice has the effect
of endorsing religion.’ ” Trunk, 629 F.3d at 1106 (quoting
Access Fund v. U.S. Dep’t of Agric., 499 F.3d 1036, 1043 (9th
Cir. 2007) (reviewing cases)). We also note that these factors
are not to be applied in a vacuum. Pleasant Grove, 129 S. Ct.
at 1136. Context is critical when evaluating the government’s
conduct. Cnty. of Allegheny v. ACLU Greater Pittsburgh
Chapter, 492 U.S. 573, 598 (1989) (“Under the Court’s holding in Lynch, the effect of a crèche display turns on its setting.
Here, unlike in Lynch, nothing in the context of the display
detracts from the crèche’s religious message.”); accord Trunk,
629 F.3d at 1102; Grove, 753 F.2d at 1534.
[17] Applying Lemon to the undisputed facts before us, we
find no violation. First, Poway did not contravene the Clause
when it ordered that Johnson’s banners be removed. “The
Court has been particularly vigilant in monitoring compliance
with the Establishment Clause in elementary and secondary
schools.” Aguillard, 482 U.S. at 583-84 (“Families entrust
public schools with the education of their children, but condition their trust on the understanding that the classroom will
not purposely be used to advance religious views that may
conflict with the private beliefs of the student and his or her
family.”). For that reason, “[w]e have made it clear that
‘[g]overnmental actions taken to avoid potential Establishment Clause violations have a valid secular purpose under
Lemon.’ ” Nurre v. Whitehead, 580 F.3d 1087, 1096 (9th Cir.

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2009) (quoting Vasquez, 487 F.3d at 1255), cert. denied 130
S. Ct. 1937 (2010); Peloza, 37 F.3d at 522.
[18] Moreover, action taken to “avoid conflict with the
Establishment Clause” and maintain the very neutrality the
Clause requires neither has a primary effect of advancing or
inhibiting religion nor excessively entangles government with
religion. Nurre, 580 F.3d at 1097-98; Vasquez, 487 F.3d at
1257-58; see Sch. Dist. of Abington Twp., Pa. v. Schempp,
374 U.S. 203, 225-26 (1963) (rejecting the contention that the
absence of religion equates to “affirmatively opposing or
showing hostility to religion”). Notably, as in Nurre and
Vasquez, we do not, and need not, “adjudge the constitutionality of the” display in question in order to resolve the government’s ability to curtail that bit of its own speech. Vasquez,
487 F.3d at 1257; accord Nurre, 580 F.3d at 1097-98. It is
enough to note that our precedent and that of our sister circuits demonstrate that the government’s ongoing display of
the banners would raise at least the possibility of an Establishment Clause claim.24 Cf. Tucker, 97 F.3d at 1213; Lee, 484
F.3d at 695; see Berry, 447 F.3d at 650-51. Poway was entitled to summary judgment on this aspect of Johnson’s claim.
24

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

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In evaluating the constitutionality of the other displays, we
think the court neglected its own admonishment that government speech “ ‘[s]imply having religious content or promoting a message consistent with a religious doctrine does not
run afoul of the Establishment Clause.’ ” Johnson, 2010 WL
768856, at *6 (alteration in original) (quoting Van Orden v.
Perry, 545 U.S. 677, 690 (2005) (plurality opinion)). Admittedly, Gandhi, the Dalai Lama, and Malcolm X each have
some religious connotation. However, as the district court
noted, simple connotation does not run afoul of Lemon. Van
Orden, 545 U.S. at 691-92. The same is true of the other posters. See Pleasant Grove, 129 S. Ct. at 1135 (describing John
Lennon’s song “Imagine” in its discussion of speech that may
have different meanings to different people); Grove, 753 F.2d
at 1534 (discussing The Learning Tree). Each would be violative only if used to endorse or inhibit religion, and nothing in
the record suggests such use here.
The Tibetan prayer flags are no different. Though some
amici suggest that the flags are so recognizably religious that
their use “as an instrument of religion cannot be gainsaid,”
Schempp, 374 U.S. at 224 (discussing the Bible); see Stone,
449 U.S. at 41 (Bible and Ten Commandments), the record
contains only evidence to the contrary. Lori Brickley, the science teacher who provided the flags, testified that she had no
idea as to whether the flags had any particular or significant
religious import, only that she had been told they represented
“the basic elements” Tibetan people believe “necessary for
their life.” She also noted that though one of the flags contains
a small picture of Buddha not one of her students had ever
identified the flags as religious.
Furthermore, Brickley testified that the flags were neither
hung nor used for any religious purpose. She explained that
she uses the flags as part of her discussion of fossils found on
and near Mount Everest because the flags are authentic—
bought in Nepal near Mount Everest—and are typically purchased by climbers to put “at the top of Mount Everest when

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they reach the peak.” She described how she typically shows
a video of scientists taking cores samples on Everest and uses
the flags to further stimulate the interest of her students. She
said that the flags “represent climbing a mountain” and
accomplishing “an amazing goal.”
Limited to these facts, we would not think that an objective
observer could conclude that the flags were displayed for a
religious purpose. McCreary Cnty., 545 U.S. at 862 (“The
eyes that look to purpose belong to an ‘objective observer,’
one who takes account of the traditional external signs that
show up in the . . . official act.” (citations and internal quotation marks omitted)); id. at 859 (noting the rarity of finding
a religious purpose). Rather, the undisputed evidence supports
a common-sense conclusion that the flags are intended to
stimulate scientific interest, not religious pressure (or even
permissible religious discussion). Id. at 863; cf. Stone, 449
U.S. at 42.
[19] Of course, because the speech is the government’s,
Brickley’s purpose is not dispositive. Pleasant Grove, 129 S.
Ct. at 1136 (“Contrary to respondent’s apparent belief, it frequently is not possible to identify a single ‘message’ that is
conveyed by an object or structure, and consequently, the
thoughts or sentiments expressed by a government entity that
accepts and displays such an object may be quite different
from those of either its creator or its donor.”). Poway’s policy
prohibiting sectarian and religious displays only further supports a conclusion of secular purpose. McCreary Cnty., 545
U.S. at 863 (“[T]he government’s action was held unconstitutional only because openly available data supported a commonsense conclusion that a religious objective permeated the
government’s action.”).
In regard to “endorsement”—Lemon factors two and three
—the evidence again suggests the absence of a violation.
Though the flags may very well represent the Buddhist faith,
their use by Poway has nothing to do with their religious con-

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notation. Instead, the evidence in this case demonstrates that
the district uses the flags to stimulate interest in science and
scientific discovery without any mention of religion. Thus,
while the flags might themselves contain “religious content,”
Van Orden, 545 U.S. at 690, the primary effect of the school’s
use was entirely secular and fostered no entanglement with
religion. Cf. Lemon, 403 U.S. at 612-13. Unlike in Allegheny,
the “context of the display” here sufficiently “detracts” from
any religious message the flags might otherwise convey. See
492 U.S. at 598. Any residual religious effect was therefore
anodyne, not stigmatic. Trunk, 629 F.3d at 1109 (“By
‘endorsement,’ we are not concerned with all forms of government approval of religion—many of which are anodyne—
but rather those acts that send the stigmatic message to nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents
that they are insiders, favored members . . . .’ ” (alteration in
original) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290, 309-10 (2000)) (citation and internal quotation marks
omitted)).
[20] Because neither Poway’s removal of Johnson’s banners nor its display of other materials violated the Clause, the
district court should have granted summary judgment to
Poway, not Johnson. We reverse the court’s judgment as to
Johnson’s Establishment Clause claim and remand with
instructions that it enter summary judgment in favor of
Poway.
C
Finally, we reach Poway’s claim that the district court erred
in granting Johnson summary judgment on his claim that the
district court denied him equal protection of the law when it
ordered that he remove his banners but continued to permit
the display of other posters and materials that Johnson
believes exhibit sectarian viewpoints. We again agree with
Poway that the court erred.

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Our resolution of Johnson’s freedom of speech and Establishment Clause claims leaves little room for discussion. All
the speech of which Johnson complains belongs to the government, and the government has the right to “speak for
itself.” Pleasant Grove, 129 S. Ct. at 1131 (citation and internal quotation marks omitted). When it does, “it is entitled to
say what it wishes,” Rosenberger, 515 U.S. at 833, “and to
select the views that it wants to express.” Pleasant Grove, 129
S. Ct. at 1131 (citing Nat’l Endowment for Arts v. Finley, 524
U.S. 569, 598 (1998) (Scalia, J., concurring) (“It is the very
business of government to favor and disfavor points of view
. . . .”)).
[21] Because Johnson had no individual right to speak for
the government, he could not have suffered an equal protection violation. Downs, 228 F.3d at 1017 (“Because we determine that Downs has no First Amendment right to speak for
the government, his equal protection claim based upon the
deprivation of this asserted right also fails to withstand summary judgment.”); see Ceballos, 547 U.S. at 421-22
(“Restricting speech that owes its existence to a public
employee’s professional responsibilities does not infringe any
liberties the employee might have enjoyed as a private citizen.
It simply reflects the exercise of employer control over what
the employer itself has commissioned or created.”).
[22] We reverse and remand to the district court with
instructions to enter judgment in favor of Poway on this issue.
IV
In conclusion, we agree with the district court that no genuine issue of material fact remains in the present case. However, the district court made a critical error when it
determined that Poway had created a limited public forum for
teacher speech and evaluated Poway’s actions under a traditional forum-based analysis rather than the controlling
Pickering-based inquiry. Applying the correct legal principles

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to the undisputed facts before us, we conclude that Poway
was entitled to judgment as a matter of law on each of the
claims raised by Johnson.
We thus reverse and remand with instructions that the district court vacate its grant of injunctive and declaratory relief,
as well as its award of damages, and enter summary judgment
in favor of Poway and its officials on all claims. Johnson shall
bear all costs. Fed. R. App. P. 39(a)(3).
REVERSED and REMANDED with instructions.

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APPENDIX

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