Classroom.pngIf you were a high school teacher, what posters and inspirational items would you put up in your classroom?  What if at your school, “no posters” was not an option, and you were expected to make some personal statement to your students and peers?  The next question you may have to ask is what are the limits your employer can place on what you say?  What rights does the administration itself have in this scenario? 

The U.S. Court of Appeals for the Ninth Circuit is considering this very question in Johnson v. Poway Unified School District, a case that could provide answers not only to this question but to a number of others bearing on what First Amendment free speech rights teachers possess.  The Court of Appeals heard oral argument on May 5, 2011, and will probably issue a decision soon.

The facts of Johnson are as follows.  The Poway Unified School District allowed teachers to place posters and other materials on the walls of their classrooms conveying messages completely of the individual teacher’s choosing.  Examples included anti-war materials and posters of rock musicians Nirvana, Bruce Springsteen, and the Beatles.  Some of the materials appeared to pertain to religion, including: a 35 to 40-foot long string of Tibetan prayer flags with writings in Sanskrit and images of Buddha; a poster of John Lennon and the lyrics to the song “Imagine” (which at one point asks listeners to imagine a world with “no religion”); a poster of Buddhist leader the Dalai Lama; and posters of Muslim minister Malcolm X. 

Bradley Johnson, a math teacher, maintained in his classroom two banners, each approximately seven feet wide and two feet tall.  One, striped in red, white and blue, contained the phrases: “In God We Trust,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace On Thee.”  A second banner quoted from the Declaration of Independence by stating “All Men Are Created Equal, They Are Endowed By Their Creator,” and placed the word “Creator” in all uppercase letters.  Johnson had taught at the school for 30 years.  The first banner had been in his classroom for 25 years, and the second for 17 years. 

There was no evidence of any student complaints about Johnson’s banners.  A fellow math teacher in 2006, however, asked the administration why Johnson was allowed to have them.  The administration, apparently concerned that the banners infringed principles of separation of church and state, followed up and ultimately ordered Johnson to take the banners down.  He responded by bringing a federal court lawsuit, arguing that the administration’s order infringed his free speech rights and other rights.  The trial court agreed with Johnson, and granted his motion for summary judgment. 

The Court of Appeals must now make a choice that may have widespread effects on how to interpret the free speech rights of educators, and how far management rights in this area extend. 

Key to the Court of Appeals’ decision will be choice of a doctrinal lens through which to evaluate the conflicting rights.  The trial court chose “forum analysis,” the doctrine applicable to speech of citizens generally, and not the standard developed by courts for evaluating public employee speech in particular.  “Forum analysis” is traditionally applied, for example, to university walkways, open areas in a city, school bulletin boards and message boards, and similar venues for expression.  Essentially, forum analysis dictates that, once the government opens up a forum for free expression, it cannot pick and chose what opinions are expressed.  Here, the “forum” found by the trial court, and opened up by the District, was the high school classrooms.  The trial court found that Johnson’s expression in the classroom had improperly been singled out for censorship. 

Courts typically evaluate the First Amendment claims of public employees under a different doctrinal test, one that more significantly favors management rights.  In a line of cases concluding with Garcetti v. Ceballos in 2006, the U.S. Supreme Court has described that public employees surrender some constitutional rights when they come to work for the government, and can only assert free speech claims related to their employment under limited circumstances – specifically, when their speech is on a matter of “public concern,” when the expression survives a balancing test of management rights against employee speech rights, and when the expression itself is not part of the employee’s “official duties.”  Here, treating Johnson’s placement of his banners as curricular or part of his “official duties” as a high school teacher would constitute a way for the Court of Appeals to reverse the trial court, and assure public high school administrators that they have more traditional management rights in this area.  Applying this test would mean that Johnson as a public employee would essentially have no free speech claim to assert with regard to what is on his classroom walls (and the same would be true for his fellow instructors).

As a caveat, the Supreme Court in Garcetti did identify educators as possible special cases.  The Court did not necessarily want its “official duties” standard, for example, to strip university professors of their academic freedom in shaping their curriculum and scholarship.  But many argue that the “official duties” limitation on free speech rights should apply at least to some extent to educators, since the same reasons for limiting the speech rights of employees generally apply to educators as well (e.g., the limitation allows for more effective government functioning on behalf of the public). 

The oral argument was broadcast on C-SPAN on May 5, 2011.  Although there is obviously no way to determine how the Court will rule, questions from the panel suggest the Court is considering taking a different view from that of the trial court, and applying the Garcetti test to the speech at issue.    

LCW will provide an update once the Ninth Circuit issues its decision.