dissenting:
I dissent because I do not believe that summary judgment was appropriate on Peterson’s free exercise of religion claim. Since the district court presented this claim to the jury as one. that Peterson had won, and for their consideration in determining what amount of damages to award, I would reverse the judgment on the jury’s damage award. I therefore would not reach Peterson’s cross-appeal of the district court’s denial of his petition for attorney’s fees.
There is no basis for assuming that Peterson engaged in conduct protected by the Free Exercise Clause.1 As I read the record, Peterson did not prove—and perhaps cannot prove—that his expressed desire to home school was “rooted in religious beliefs,” Wisconsin v. Yoder, 406 U.S. 205, 215-16, 218, 92 S.Ct. 1526, 1533-34, 1535, 32 L.Ed.2d 15 (1972), and that reassignment to a teacher’s position “burden[ed][his] practice of ... religion by pressuring him ... to commit an act forbidden by [his] religion or by preventing him ... from engaging in conduct or having a religious experience which the faith mandates.” Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir.1987), aff'd sub nom. Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148-49, 104 L.Ed.2d 766 (1989); see also Vernon v. City of Los Angeles, 27 F.3d 1385, 1393 (9th Cir.), cert. denied, 513 U.S. 1000, 115 S.Ct. 510, 130 L.Ed.2d 417 (1994). The only evidence on the first point is Peterson’s deposition testimony that he and his wife “determined that we would like to give our children their education based around a belief in God, as compared to an *1362education without that emphasis.”2 That doesn’t come close to what the Supreme Court required in Yoder on the issue of whether the Amish parents’ claim was “rooted in religious beliefs,” and Peterson has cited to no other case suggesting that such testimony is sufficient to warrant summary judgment on a free exercise claim. Moreover, Peterson did not prove that Minidoka’s actions caused any substantial, concrete harm to his freedom to practice his religion. Peterson is still free to believe in God as the creator and to teach his children that belief at home.
Even assuming Peterson’s conduct enjoys protection under the Free Exercise Clause, there are genuine issues of material fact about whether, on balance, his right to engage in it is outweighed by Minidoka’s interest in maintaining the effectiveness of its educational program, see Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35, inasmuch as there is evidence that Peterson’s conduct “materially and substantially impede[d] the operation or the effectiveness of the [Minidoka] educational program.” Brantley, 718 F.2d at 1359; see also Tinker, 393 U.S. at 509, 89 S.Ct. at 737-38. As I see it, this case is a lot like Gillette v. Delmore, 886 F.2d 1194 (9th Cir.1989), cert. denied, 506 U.S. 1035, 113 S.Ct. 815, 121 L.Ed.2d 687 (1992), where we reversed a summary judgment against a fireman because, under the Pickering balancing test, there were genuine issues of material fact about whether the fireman’s constitutionally protected speech actually “impair[ed] discipline by superiors or harmony among coworkers, ha[d] a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impede[d] the successful operation of the [fire] department.” Id. at 1198. Here, too, there are genuine issues of material fact about the negative impact of Peterson’s conduct on the students and faculty and on his ability to perform as principal.
Minidoka presented evidence showing that after Peterson announced he was considering home schooling, several teachers began to wonder openly about his commitment to the public schools, to lose respect for him as their boss, and to question their own ability to teach. Minidoka also presented evidence that individual Board members and the school secretary at Paul Elementary received numerous calls from parents who were critical of Peterson’s contemplation of home schooling. But the magistrate judge (and in turn the majority) resolve against Minidoka the reasonable inferences raised by this evidence; as the magistrate judge put it: “There is some evidence in this case from teachers that Peterson’s consideration of home schooling for his children was creating tension and an unpleasant atmosphere; however this is also contradicted by evidence that the school year proceeded much as normal.” Discrediting Minidoka’s evidence in this way is for the trier of fact to do, not the court on summary judgment.
Most importantly, I believe there are genuine issues of material fact about whether Peterson’s expressed contemplation of home schooling for religious reasons was a “substantial or motivating factor” in Minidoka’s decision to reassign him. Erickson v. Pierce County, 960 F.2d 801, 804 (9th Cir.), cert. denied, 506 U.S. 1035, 113 S.Ct. 815, 121 L.Ed.2d 687 (1992). While there is no dispute that at some point Peterson told Superintendent Bishop that he wanted to teach his children at home for religious reasons, there is a substantial factual dispute about whether Minidoka factored religion into its decision to reassign Peterson. At best for Peterson, the evidence suggests that the Board’s decision to reassign him was motivated by his ex*1363pressed contemplation of home schooling, without regard to why he was so contemplating.3 In fact, there isn’t even a hint in the record that, if all else had been the same, Minidoka would not have reassigned Peterson if his contemplation of home schooling had been based on a desire to be closer to his children or on a belief that the teachers were not qualified. Here, as in Mabey v. Reagan, 537 F.2d 1036, 1041, 1045 (9th Cir.1976), the evidence is at least in conflict about why Peterson was reassigned, such that a trier of fact could conclude that his expressed contemplation of home schooling for religious reasons wasn’t a “substantial” or “motivating” factor.4
Finally, whether or not Minidoka can satisfy the third prong of Mt. Healthy, there is enough evidence in the record regarding other reasons (like insubordination and noncooperation) for Peterson’s reassignment that the school district, like the defendants in Mt. Healthy, Allen, and Gillette, should have a chance to show that it would have done what it did regardless. Neither the district court (nor the majority) even considers the issue.
I would, therefore, reverse.
. We apply a three-part test to determine whether a termination violates the First and Fourteenth Amendments. As we explained in Erickson v. Pierce County, 960 F.2d 801 (9th Cir.),
First, the terminated employee must establish that the conduct at issue was entitled to constitutional protection. Second, the employee must prove that the constitutionally protected conduct was a substantial or motivating factor behind the tennination. Third, once the terminated employee has established the first two elements, the employer must prove that it would have made the same decision to terminate even if the employee had not engaged in the protected conduct.
Id. at 804 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), and Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir. 1989)), cert. denied, 506 U.S. 1035, 113 S.Ct. 815, 121 L.Ed.2d 687 (1992). In the realm of public school employment, the first prong of the Mt. Healthy test requires a dual inquiry. We first examine whether the school employee’s conduct implicates a constitutional right, and if it does, we balance the interest of the employee in engaging in the conduct against the state’s interest in promoting efficiency in the educational services that it provides through its public school employees. See Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Gillette, 886 F.2d at 1198. And on balance "[t]he state may legitimately interfere with the constitutionally protected conduct of a public school employee whenever that conduct materially and substantially impedes the operation or effectiveness of the educational program.” Brantley v. Surles, 718 F.2d 1354, 1359 (5th Cir. 1983); see Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 509, 513, 89 S.Ct. 733, 737-38, 740, 21 L.Ed.2d 731 (1969).
. Nothing in the record, for example, indicates that Peterson believes, as the majority opinion implies, that "[t]he belief in God as the creator, set out in the opening chapters of the Bible, is among the most basic and most pervasive of tenets in the biblical religions that have entered into our civilization. To relate that belief to education is a type of exercise of religion. Creation by God implies purpose and design in what God has created. From the perspective of the believer God is not another category to be considered along with other forces, but a living presence guiding the teacher and the student.” Maj. op. at 1356. Nor did Peterson ever indicate that his free exercise claim is "based on his personal sense of what his religion requires,” as the majority opinion suggests. Id. at 1356.
. The May 6, 1992 letter from Superintendent Pavlock to Peterson says that "[i]n light of your verbal notification to me that your children will be home schooled ... a professional assignment change will be made.” The Board’s Chair, David M. Elison, testified during his deposition that "I'd say the main consideration in regard to the decision which ultimately was made to reassign would have to do with the fact that [Peterson] was not willing to cooperate with the board and tell us what his intentions were regarding the matter which we felt would directly affect his administration in that building. He was reassigned not because he was going to home school, but because he just simply was not willing to work with the board in regard to that decision which he was going to make.”
. Indeed, Peterson’s brief concedes as much, for he asserts ”[i]n this case, there remains total confusion between the written documents and the contradictory testimony as to just when and why Mr. Peterson was demoted and reassigned."