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A public school district in San Diego did not violate a math teacher’s constitutional rights in ordering him to take down large banners in his classroom that espoused the role of God in the nation’s history, a federal appeal court has ruled. The U.S. Court of Appeals for the 9th Circuit found unanimously on Sept. 13 that Bradley Johnson’s classroom was not a public forum that entitled him to broadened First Amendment rights. The panel concluded that he was displaying the banners as a government employee, which limited his freedom of expression. “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,” Judge Richard Tallman wrote. “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.” The court reversed a summary judgment ruling by U.S. District Judge Roger Benitez, who upheld Johnson’s claims that the school was a limited public forum in which teachers could express their viewpoints; as a result, the district had violated his First Amendment right to free speech and his rights under the establishment and equal protection clauses of the 14th Amendment, Benitez concluded. He ordered school officials to pay damages; Johnson has a pending motion for more than $240,500 in attorney fees. When asked whether he would seek a petition for re-hearing before the 9th Circuit, Johnson’s attorney, Robert Muise, senior trial counsel at the Thomas More Law Center in Ann Arbor, Mich., said: “Absolutely. And if that fails, we’ll seek a cert petition” before the U.S. Supreme Court. The district’s attorney, Jack Sleeth, a shareholder at Stutz, Artiano, Shinoff & Holtz in San Diego, did not return a call for comment. The district attracted the amicus support from National School Boards Association, California School Boards Association, Americans United for Separation of Church and State and the American Civil Liberties Union of San Diego and Imperial Counties. Johnson drew amicus support from the Christian Educators Association International and WallBuilders Inc., an organization that focuses on the “moral, religious, and constitutional foundation on which America was built,” according to its Web site. Muise worked on the case with Charles LiMandri, a solo practitioner in Rancho Santa Fe, Calif., who has been actively involved in defending Proposition 8, California’s ban on gay marriage. According to the panel’s opinion, Johnson, who teaches at Westview High School in the Poway Unified School District in San Diego and is faculty sponsor of the school’s student Christian club, hung two banners on the wall, each measuring seven feet across and two feet tall. One banner said: “In God we trust,” “One nation under God,” “God bless America” and “God shed his grace on thee.” The other said: “All men are created equal, they are endowed by their creator.” The appeals panel wrote that Johnson considered it his “right to have them up.” School administrators ordered him to take them down, which he did. He then filed suit in federal court, seeking declaratory and injunctive relief. The panel relied on the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education of Township High School District 205, which outlined the test for speech as it pertains to government employees. The panel concluded that Johnson’s banners “concern religion,” not “purely patriotic sentiments.” Additionally, Johnson was not acting as a citizen, but a government employee, when he came to class as a teacher. “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,” the panel wrote. Muise said the panel relied on the wrong test. “This case needed to be viewed under a forum analysis, not under the Pickering balancing test,” he said. He questioned the panel’s backing of the district’s decision to take down Johnson’s banners despite an open policy on what teachers could display in their classrooms. Other teachers weren’t asked to take down material that could be considered religious, he said. Johnson took photographs of classrooms in the district’s four high schools in which were displayed images he believed contained “sectarian viewpoints,” including Tibetan prayer flags. “Those Tibetan prayer flags are far more religious in nature than the patriotic notions of Mr. Johnson,” he said. The panel said, however, that the science teacher who displayed the Tibetan prayer flags used them in the context of informing students that they traditionally are planted atop Mt. Everest. “Though the flags may very well represent the Buddhist faith, their use by Poway has nothing to do with their religious connotation,” the panel wrote. “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.” Amanda Bronstad can be contacted at [email protected].

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