Reversing a decision by the United States district court for southern California, the Ninth Circuit federal court of appeals ruled that the Poway Unified School District did not violate the First or Fourteenth Amendment rights of math teacher Bradley R. Johnson when he was instructed to take posters off the walls of his classroom.
The signs were ten by seven feet, one reading “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and, “GOD SHED HIS GRACE ON THEE.” The other read “All men are created equal, they are endowed by their CREATOR.”
Federal district judge Roger T. Benitez had ruled that the school district created a “limited public forum” for teacher speech in its classrooms, and impermissibly limited Johnson’s speech based upon the viewpoint he expressed.
The appeals court determined that this was the wrong standard, because a classroom is not a public forum of any kind. Despite the efforts of the Thomas More Law Center, Ann Arbor Michigan, on Johnson’s behalf, the court ruled that teachers, as employees of the school district, are speaking on behalf of their employer.
“Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all,” Judge Richard C. Tallman wrote for a three-judge panel, “preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.”
After receiving complaints from teachers and other students, Westview High School principal Dawn Kastner suggested that it would be more appropriate to display the full context of the historical documents from which the phrases were pulled, and “smaller expressions of his personal beliefs around his desk area.”
The district school board eventually directed Johnson to take the signs down. Bill Chiment, the assistant superintendent for the district assigned to handle legal issues, directed Johnson to district policy that teachers “distinguish between teaching and advocating, and refrain from using classroom teacher influence to promote partisan or sectarian viewpoints.” Chiment added that the displays constituted “aid to a particular religious sect, creed, or sectarian purpose” because they were “not incidental or illustrative of matters properly included in your course of study as a teacher of mathematics.”
In ruling for the school district, the appellate court relied on the United States Supreme Court 1968 decision, Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, that “[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”
A public employee retains their right as a citizen to comment on matters of public interest and concern, but generally not when acting on behalf of the state in the course of their employment. Like any private employer, the state has an interest in promoting the efficiency of public services its provides through its employees.
Johnson’s opportunity to hang posters in a classroom, the court concluded, owes its existence to his position as a teacher, not to his standing as a citizen. “He was not running errands for the school in a car adorned with sectarian bumper stickers or praying with people sheltering in the school after an earthquake. ‘Rather, Johnson hung his banners pursuant to a long-standing Poway Unified School District policy, practice, and custom,’ of permitting teachers to decorate their classrooms subject to specific limitations and the satisfaction of the principal or a District administrator.”
While Johnson may offer his own opinions on the religious heritage and nature of the United States “on the sidewalks, in the parks, through the chat-rooms, at his dinner table, and in countless other locations,” Tallman wrote, “He may not do so, however, when he is speaking as the government.”