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Teacher Has No Right to Religious Banners: 9th Cir.

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By Stephanie Rabiner, Esq. on September 14, 2011 4:06 PM

Finding that a San Diego teacher had no right to hang 7-foot-long religious banners in his classroom, the 9th Circuit has reiterated that a public teacher's free speech rights essentially cease to exist while on school property and in the presence of students.

Emphasizing the words "God" and "creator" as found in quotes throughout American history, high school math instructor Bradley Johnson was ordered to remove the large banners, which were deemed to promote a particular viewpoint and potentially make students feel uncomfortable.

The reality is that the Supreme Court has long held public employees relinquish some First Amendment rights.

Like private employers, the government is entitled to "take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted."

In determining whether an action is legitimate or in violation of a teacher's free speech rights, a court must consider, amongst other things, whether the plaintiff spoke as a private citizen or as an employee. A plaintiff who speaks as an employee is not entitled to First Amendment protection.

A teacher, according to the 9th Circuit, necessarily acts as teachers when at school and around students. Speech--or banners--in a classroom exist as a virtue of employment.

Moreover, room decor is present as a teacher conducts his duties, including instruction, and taking attendance.

Because Bradley Johnson was acting as an employee when he placed and kept the religious banners in his classroom, the Poway United School District was well within its rights to order their removal.

Keep in mind that this decision leaves room for instances during which a teacher's free speech rights can be violated. Teachers do not always speak as employees.

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