The U.S. Court of Appeals for the Ninth Circuit, in Johnson v. Poway Unified School District, yesterday issued a decision that answers numerous questions bearing on the First Amendment free speech rights of high school teachers.  At the core of Johnson is the extent to which high school teachers’ expression to students in the course of instruction is protected by the First Amendment.

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.

In 2007, the District, concerned about a violation of principles of separation of church and state ordered that Johnson remove the banners.  Johnson sued alleging his First Amendment free speech rights had been violated. 

The trial court agreed with Johnson, and granted his motion for summary judgment.  It did so by applying First Amendment “forum analysis,” specifically by determining that once the District had allowed teachers free reign to express themselves through posters and other expression on their classroom walls, the District could not then pick and choose what teachers could express. 

The Court of Appeals yesterday reversed, holding that for public employees, forum analysis must give way to the specific framework the U.S. Supreme Court has developed for evaluating public employee speech claims.  That framework asks Courts to determine, among other things, whether the employee spoke on matters of “public concern” and whether the employee spoke as a private citizen rather than a public employee.  If either of these elements is not satisfied, the employee has no free speech claim and the analysis proceeds no further. 

The Court of Appeals in Johnson found, first, that Johnson’s speech satisfied the “public concern” test.  In broad terms, the Court stated that “speech concerning religion is unquestionably of inherent public concern.”

The Court went on, however, to hold that Johnson’s banners nevertheless constituted his speech as a public employee, and thus that there was no First Amendment protection.  An employee speaks as a public employee when the speech is made pursuant to his or her “official duties.”  The Court applied the following standard for determining whether Johnson was speaking as a public employee in this case: “[B]ecause of the position of trust and authority they hold and the impressionable young minds with which they interact, teachers necessarily act as teachers for purposes of [an “official duties” analysis] when [they are] at school or a school function, in the general presence of students, in a capacity one might reasonably view as official.”  The Court described in a footnote “that teachers may still speak as government employees if fewer than all three conditions are met.”

The Court determined that Johnson’s banners were pursuant to his “official duties” under this standard: “An ordinary citizen could not have walked into Johnson’s classroom and decorated the walls as he or she saw fit, anymore than an ordinary citizen could demand that students remain in their seats and listen to whatever idiosyncratic perspective or sectarian viewpoints he or she wished to share.”  The Court held that because teacher expression in this context was for legal purposes the speech of the government itself, that meant the government (here the District) was free to limit it.

The Court concluded its opinion by determining whether the District’s directive that Johnson remove his banners violated the U.S. Constitution’s Establishment Clause prohibition on separation of church and state, given that the District did not also order other teachers’ items of an allegedly religious nature to be removed (for example, the Tibetan prayer flags).  The Court of Appeals found no violation.  It reasoned that actions, like the District’s, that themselves constitute efforts to avoid violations of separation of church and state are less likely to violate the Clause.  The Court also emphasized that the other posters and displays in classrooms had minimal if any religious message, given the Court’s view of the record, whereas the religious message of Johnson’s banners was much clearer. 

The Court allowed itself some poetic license in observing that not all mention of religion by the Government will infringe the Establishment clause: “In essence, the Clause serves not as a closed door, but as a judicious chaperone; it permits a certain degree of impartial and friendly dialogue, but is swift to step in once that dialogue turns stigmatic or coercive.” 

Finally, footnote 12 to the Court’s opinion answers in part a question about academic freedom, and the extent to which it should prevent the “official duties” standard from removing First Amendment protection for traditional freedoms enjoyed by teachers, professor, and scholars.  The Court’s opinion states that this concern for academic freedom, as expressed by the U.S. Supreme Court, applies only “to teachers at ‘public colleges and universities,’ not primary and secondary school teachers.” 

The Johnson opinion contains a substantial amount of analysis bearing on the free speech rights of high school teachers.  We will provide a further report if the U.S. Supreme Court takes up the case, or if there are further important developments.

Questions of constitutional law, including questions concerning faculty members’ freedom of expression, typically require legal analysis.  Liebert Cassidy Whitmore attorneys are experienced in these issues and available to advise employers.