Wednesday, September 14, 2011
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."