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.
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