                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 13 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BRADLEY R. JOHNSON,                               No. 10-55445

              Plaintiff - Appellee,               D.C. No. 3:07-cv-00783-BEN-
                                                  WVG
  v.

POWAY UNIFIED SCHOOL DISTRICT;                    MEMORANDUM *
et al.,

              Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                         Argued and Submitted May 5, 2011
                               Pasadena, California

Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.

       Poway Unified School District and its officials appeal the district court’s

award of summary judgment in Bradley Johnson’s favor on claims arising under




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the California Constitution, article I, sections 2 and 4.1 We have jurisdiction under

28 U.S.C. § 1291, and we reverse.

      Poway did not violate Johnson’s rights under the liberty of speech clause of

the California Constitution by ordering that he curtail his in-class employee

speech. San Leandro Teachers Ass’n v. Governing Bd. of the San Leandro Unified

Sch. Dist., 209 P.3d 73, 87 (Cal. 2009).

      Because Poway’s conduct satisfies Lemon v. Kurtzman, 403 U.S. 602, 612

(1971), it also did not violate either the establishment clause or the no preference

clause of the California Constitution under the circumstances before us. East Bay

Asian Local Dev. Corp. v. State of Cal., 13 P.3d 1122, 1138 (Cal. 2000) (“We do

not believe, however, that the protection against the establishment of religion

embedded in the California Constitution creates broader protections than those of

the First Amendment.”); id. at 1139 (“Having concluded above that an exemption

from a landmark preservation law satisfies all prongs of the Lemon test, it follows

that the exemption is neither a governmental preference for or discrimination

against religion.”).




      1
         We reverse the district court’s award of summary judgment to Johnson on
his federal claims in a published opinion filed concurrently with this disposition.
The relevant facts underlying all of the issues on appeal are found there.

                                           2
      We reverse and remand with instructions that the district court vacate its

grant of injunctive and declaratory relief and award of damages and enter summary

judgment in favor of Poway and its officials on all claims. Johnson shall bear all

costs. Fed. R. App. P. 39(a)(3).

      REVERSED and REMANDED with instructions.




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