Wednesday, September 14, 2011

Ninth Circuit: Teacher Has No Right to Display God Banners

A unanimous three-judge panel of the Ninth Circuit ruled yesterday in Johnson v. Poway Unified School District that the District did not violate a teacher's First Amendment rights when officials ordered him to remove banners from his classroom reading "In God We Trust," "One Nation Under God," "God Bless America," "God Shed His Grace On Thee," and "All Men Are Created Equal; They Are Endowed By Their CREATOR."

Teacher Johnson argued that the district violated his rights under the Speech and Establishment Clauses when officials ordered him to remove the banners.  He argued that other district teachers displayed religious symbols in their classrooms--including Tibetan prayer flags, a John Lennon poster with the "Imagine" lyrics, a Mahatma Gandhi poster, a Dalai Lama poster, and the like--and that he was treated unfairly.  The district court ruled in his favor, saying that the district created a public forum and engaged in viewpoint discrimination by requiring Johnson, but not these others, to remove his banners.

The Ninth Circuit reversed.  It ruled that the district court erroneously applied public forum analysis, when it should have applied public employee doctrine under Pickering.  Applying Pickering, the court ruled that Johnson spoke in his capacity as a public school teacher, not as a private citizen, and that his speech was therefore not protected.  (The court said that Johnson displayed his banners in his room, under a time-honored policy in the district allowing teachers to decorate their own classrooms.  Thus his display was part of his job as a teacher, not his independent speech as a citizen.)

The court further ruled that the district's act in requiring Johnson to remove his banners did not violate the Establishment Clause.  Applying the Lemon test, the court ruled that the district had a secular purpose (because it ordered the removal as part of its vigilant efforts to avoid Establishment Clause problems) and that the district's order had a religion-neutral, sect-neutral effect (because in context the other displays that it allowed to remain--the Tibetan prayer flags, the Lennon poster, the Gandhi poster--all had a primarily secular meanings).

The result isn't a particular surprise; the court itself began its opinion with the line, "The answer is clear."


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As far as the Establishment Clause issue goes, the 9th Circuit got it right. The District Court was not correct in holding that the school district "endorsed" Buddhist, Hindu and anti-religious speech while "silencing" the teacher's Judeo-Christian speech.

As the 9th Circuit states in its opinion, speech that contains a religious aspect or promotes a message that is consistent with one or more religious views is not a violation of the Establishment Clause. This rule applies to all of the other school displays that were discussed in the opinion. The teacher who displayed the Tibetan prayer flags testified that she used the flags in teaching about fossils found near Mount Everest, and that the flags increased student interest in the subject because they are authentic and many climbers of the mountain put the flag at the top of the mountain when they reach the peak. Even though one flag contained a picture of the Buddha, not a single student ever "identified the flags as religious." Given the nature of these flags and the way they were used by the teacher, it was pretty clear that they were not "endorsements" of religion but rather speech that merely contained a religious aspect. The same can be said for the other displays: the posters of Ghandi, Malcolm X and the John Lennon "Imagine" poster.

Now consider the displays by Mr. Johnson, the teacher who sued. In his math classroom he displayed banners that were seven feet wide and two feet tall, containing four phrases in all capital letters, each containing the word "GOD," and one more stating, "All men are created equal, they are endowed by their CREATOR," with 'CREATOR' being in all caps and almost double the size of the other words. Clearly his display was much more a promotion of religion than were the posters and flags displayed in the other classrooms.

Posted by: Vince Oppedisano | Sep 15, 2011 11:38:35 AM

I agree with the courts decision that people should not be exposed to religion they do not want to be exposed to. However, I dont see a problem with some of the phrases such as "In God We Trust" because everyone is exposed to that phrase all the time because of being written on U.S. currency. If certain phrases are being used elsewhere on a constant basis I dont see a problem with having it posted in another.

Posted by: Jeremy Miller | Sep 22, 2011 8:46:00 AM

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