Government Liability Update

School District Can Order Teacher to Take Down Banners in Classroom

In Johnson v. Poway Unified School District, published September 13, 2011, the Ninth Circuit reversed summary judgment granted to a math teacher who sued a school district for ordering him to take down banners he had put up in his classroom, which stated: “IN GOD WETRUST”; “ONE NATION UNDER GOD”; “GOD BLESSAMERICA”;  “GOD SHED HIS GRACE ON THEE"; and “All men are created equal, they are endowed by their CREATOR" [with the word "Creator" set forth in its own line, with larger type].  The school district concluded that the banners were arranged in such a way as to promote religion; and ordered the teacher to take the banners down.  He alleged that the order violated his constitutional rights to free speech and equal protection, as well as the protections of the Establishment Clause.

The Ninth Circuit concluded that the Pickering test applied to the free-speech claim.  Under that test, the First Amendment does not protect speech by a public employee, made as an employee, against action by the employer.  The teacher's banners, posted in his classroom, were speech made in his capacity as teacher.  Equal protection did not require the school district to remove all references to religion from the school, since the clause permits a public employer to choose the messages it conveys.  The order did not violate the Establishment Clause by infringing on religious freedom without a rational purpose, since maintaining the government's neutrality in religious matters is a rational purpose.

Summary Judgment Proper Where Entity Establishes Prima Facie Case That Intersection Is Not Dangerous and Plaintiff's Contrary Expert Evidence Is Properly Excluded

In Salas v. CalTrans, ordered published August 29, 2011, the Third District Court of Appeal affirmed a trial court ruling granting CalTrans summary judgment in an auto vs. pedestrian case.  The accident arose when a motorist hit a pedestrian who was walking back and forth outside the crosswalk on a state highway.  The plaintiff alleged that the roadway was in a dangerous condition due to insufficient markings and the high speeds of motorists.  CalTrans established a prima facie case for summary judgment by presenting evidence that the accident took place during the daytime on a clear day; that the roadway was straight and visibility was not obstructed; that there was only one other auto vs. pedestrian accident at the intersection in the preceding 10 years; and that a roadway expert opined that the intersection was safe.  The burden shifted to the plaintiff to raise a triable issue of fact.  The trial court sustained CalTrans's objections to nearly all of the plaintiff's expert evidence; and the plaintiff failed to adequately address those rulings on appeal.  The remaining evidence -- that auto vs. auto accidents had taken place in the vicinity of the intersection -- failed to raise a triable issue of fact.