KMTG
Legal Alert
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Education Law
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1675 Chester Ave., Ste. 320
Bakersfield, CA 93301
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1432 Higuera Street
San Luis Obispo, CA 93401
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Walnut Creek, CA 94597
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Legal Alerts are published by Kronick
Moskovitz Tiedemann & Girard as a timely
reporting service to alert clients and
other friends of recent changes in case
law, opinions or codes. This alert does
not represent the legal opinion of the firm
or any member of the firm on the issues
described, and the information contained
in this publication should not be construed
as legal advice. Should further analysis
or explanation of the subject matter be
required, please contact the attorney with
whom you normally consult.
© 2009 Kronick Moskovitz Tiedemann & Girard
March 30, 2010
School District May Not Censor Teacher’s In-Classroom Expression That
Refers to Judeo-Christian Views While It Allows Other Teachers To Express
Views on Controversial Subjects
In Johnson v. Poway Unified School District, (Slip
Copy, 2010 WL 768856, S.D.Cal., February 25,
2010), the United States District Court for the
Southern District of California considered the
following issue: “May a school district censor
a high school teacher’s expression because it
refers to Judeo-Christian views while allowing
other teachers to express views on a number of
controversial subjects, including religion and
anti-religion?” The United States District Court
held that the school district may not censor the
high school teacher’s expression.
Facts
Bradley Johnson (“Johnson”) is employed by
the Poway Unified School District (“District”)
as a high school math teacher. Johnson has
taught math in the District for 30 years. Over
the last two decades, Johnson has hung two
banners on the walls of his classrooms without
objection from students, parents, or
administrators. Each banner is approximately
two feet tall and seven feet wide. One banner,
which has hung in Johnson’s classroom for 25
years, has red, white, and blue stripes and
contains the phrases “In God We Trust, “One
Nation Under God,” “God Bless America,” and
“God Shed His Grace On Thee.” The second
banner, which has hung in Johnson’s
classroom for 17 years, quotes the Declaration
of Independence and states, “All Men Are
Created Equal, They Are Endowed By Their
Creator.” The word “creator” is in all uppercase
letters.
Johnson hung the banners not as part of his
curriculum, but instead pursuant to District’s
“long-standing . . . practice, and custom of
permitting teachers to display personal
messages on their classroom walls.” This
policy allows teachers to display messages and
items in their classrooms “that reflect the
individual teacher’s personality, opinions, and
values, as well as messages relating to matters
of political, social, and religious concerns, so
Shared Vision. Innovative Legal Solutions. Successful Clients.
Bulletin No. 935817.2
long as these displays do not materially disrupt
school work or cause substantial disorder or
interference in the classroom.” Other teachers
in District’s high schools display items such as
Tibetan prayer flags with images of Buddha,
lyrics to the song “Imagine,” a poster of
Mahatma Gandhi, a poster quoting Gandhi’s “7
Social Sins,” a poster of Buddhist leader Dali
Lama, a poster of Muslim minister Malcolm X,
a Greenpeace poster, various posters of sports
teams, athletes, and rock bands, bumper
stickers that reference diversity, a Libertarian
Party poster, posters that reference peace, an
anti-war poster, a pro-defense poster, a poster
of Martin Luther King, Jr., and various other
posters with the American flag.
In the fall of 2006, another math teacher
questioned the high school’s principal about
why Johnson was permitted to have the
banners on his walls. After an investigation,
the school board decided to order Johnson to
remove the banners. The assistant
superintendent ordered that a full copy of the
Declaration of Independence and pictures of
United States coins be delivered to Johnson so
he could place them on the wall in place of the
banners. Johnson declined to display these
items and instead offered to post the full texts
from which the phrases on the banner came.
The principal ordered Johnson to remove the
banners because they “were impermissible
because they conveyed a Judeo-Christian
viewpoint” while District officials stated that the
display of the Tibetan prayer flags, lyrics of
Lennon’s “Imagine,” posters of the Dalai Lama,
and posters of Gandhi and his teachings were
permissible under the policy.
Decision
Johnson moved for summary judgment on his
claims that District violated his First
Amendment free speech rights under the United
States Constitution and his free speech rights
1

RELATED
AREAS OF PRACTICE
Education Law
SACRAMENTO
400 Capitol Mall, 27th Floor
Sacramento, CA 95814
Tel: 916.321.4500
BAKERSFIELD
1675 Chester Ave., Ste. 320
Bakersfield, CA 93301
Tel: 661.864.3800
SAN LUIS OBISPO
1432 Higuera Street
San Luis Obispo, CA 93401
Tel: 805.786.4302
WALNUT CREEK
1350 Treat Boulevard, Suite 105
Walnut Creek, CA 94597
Tel: 925.395.2380
WWW.KMTG.COM
Legal Alerts are published by Kronick
Moskovitz Tiedemann & Girard as a timely
reporting service to alert clients and
other friends of recent changes in case
law, opinions or codes. This alert does
not represent the legal opinion of the firm
or any member of the firm on the issues
described, and the information contained
in this publication should not be construed
as legal advice. Should further analysis
or explanation of the subject matter be
required, please contact the attorney with
whom you normally consult.
© 2009 Kronick Moskovitz Tiedemann & Girard
KMTG
Legal Alert
cont.
under the California Constitution. The District
Court granted summary judgment in Johnson’s
favor on his free speech claims.
The court found that the undisputed evidence in
this case reveals District ran afoul of the First
Amendment. The court rejected the notion
that, because Johnson was a teacher, he had no
First Amendment protection in his classroom.
The United States Supreme Court has
previously held that neither teachers nor
students shed their constitutional rights to free
speech at the schoolhouse gate.
The court performed a First Amendment forum
analysis and concluded that the classroom
walls of District constitute a limited public
forum for faculty speech because “District has
intentionally opened its high schools to
expressive conduct by its faculty on non-
curricular subjects.” It noted teachers other
than Johnson have been allowed to use their
classroom walls for a variety of topics,
including religious speech, anti-religious
speech, pro-war and anti-war speech,
nationalistic speech, and patriotic speech.
However, District only singled out Johnson’s
speech for suppression because of its
message.
Because of the nature of this forum, District’s
“regulation of speech must be viewpoint
neutral” which “requires that a school
administration not favor one speaker’s message
over another.”
Further, the court found that District’s fear of
violating the Establishment Clause was not
justified and there “is no realistic danger that
an observer would think that [District] was
endorsing a particular religion or a particular
church or creed by permitting Johnson’s
personal patriotic banners to remain on his
classroom wall.” Any perceived notion that
District was endorsing “a single religion is
dispelled by the fact that other teachers are
also permitted to display other religious
messages and anti-religious messages on
classroom walls.”
The court also rejected District’s argument that
Johnson’s free speech rights were abridged
because he is a government employee.
Shared Vision. Innovative Legal Solutions. Successful Clients.
March 30, 2010
Bulletin No. 935817.2
Although “the Free Speech Clause does not
apply to the government’s own speech,” a
government employee may engage in private
speech while he or she is on government
property.” The “government does not have a
free hand to regulate private speech on
government property.”
Finally the court rejected District’s argument
that the banners were “curricular speech” and
that District had “absolute control over the
curriculum and may dictate the content of what
its teachers may or may not speak.” The court
found that Johnson supplied the banners and
selected the content of the banners and hung
the banners inside his classroom. As such,
Johnson was expressing his ideas and “[t]his
was not a case of the school district electing to
speak for itself on a topic as part of its selected
curriculum.”
Thus, the court held District engaged in
viewpoint discrimination and violated
Johnson’s First Amendment free speech rights.
What This Means To You
Districts should exercise caution when either
authorizing or prohibiting employee and
student speech on the topic of religion.
Balancing the Establishment Clause prohibition
against government establishment of religion,
the Free Exercise Clause, allowing for the free
exercise of religion and the Free Speech Clause
can be difficult and we recommend counsel be
consulted for guidance.
Questions
If you have any questions concerning the
content of this Legal Alert, please contact the
following from our office, or the attorney with
whom you normally consult.
Diana D. Halpenny or Christian M. Keiner |
916.321.4500
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