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.