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No. 11-44 F3 NewsFlash SEPTEMBER 2011
Ninth Circuit Holds that School District May Prohibit Teacher
from Displaying Religious Banners in the Classroom
The United States Court of Appeals for the Ninth Circuit recently held that a school district may prohibit
a teacher from hanging banners that contain religious phrases in his classroom. (Johnson v. Poway
Unified School District (9 th Cir. 2011) No. 10-55445) The Ninth Circuit explained that a teacher may not
use his public position to preach his own views on the role of God in our Nation’s history to the captive
students in his mathematics class.
In this case, a high school mathematics teacher hung two banners in his classroom that were each
approximately seven feet wide and two feet tall. The first banner 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.” The second banner stated, “All men are
created equal, they are endowed by their CREATOR.” When the school district became aware of the
banners, it directed the teacher to remove them. The teacher removed the banners and sued the school
district, claiming that it violated his First Amendment free speech rights.
The teacher argued that the school district discriminated against him based on his viewpoint because it
allowed other teachers to display items that he claimed contained 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 great times of moral crisis, maintain their neutrality”; and a poster of Malcolm X. The trial court
granted summary judgment in favor of the teacher. It found that the district had impermissibly limited the
teacher’s speech based on his viewpoint (Judeo-Christian). It ordered the district to not interfere with the
teacher’s future display. The school district appealed the decision to the Ninth Circuit Court of Appeals.
The Ninth Circuit reversed the trial court’s decision. The Court determined that the teacher’s banners
clearly conveyed a religious message. It found that the teacher was acting as a public school employee
when he hung the banners and, therefore, the school district had the authority to restrict his speech. The
Court explained that the Constitution did not permit the teacher to speak as freely about God’s role in
history when acting as a teacher as he could in other locations off school grounds. The Court stated that
he took advantage of his position as a teacher to press his particular views upon the impressionable and
“captive” minds of his students. The Court clarified that the other “sectarian” items at the teacher’s
school were not displayed for religious purposes and did not endorse or inhibit religion. As a result, the
school district did not discriminate against the teacher based on his Judeo-Christian viewpoint. The Court
concluded that the school district did not violate the teacher’s First Amendment rights and granted
summary judgment in favor of the school district.

While the facts of this case supported the school district’s decision to order the banners removed, the
application of the First Amendment to religious speech in the classroom requires careful analysis and
should be examined on a case-by-case basis. We recommend that you consult with legal counsel
regarding how this new law may apply to your specific facts and circumstances.
F3 NewsFlash prepared by Gretchen Shipley and Susan Winkelman
Gretchen is a partner in the F3 San Marcos office.
Susan is an associate in the F3 San Marcos office.
This F3 NewsFlash is a summary only and not legal advice. Information on a free NewsFlash subscription can be found at
www.fagenfriedman.com.
As part of the E-ducation Professional Development Series hosted by ACSA and F3, we offer webinars on various topics. You can
find the information on the ACSA website at http://www.acsa.org/MainMenuCategories/ProfessionalLearning/E-ducation-Series.aspx.
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