The U.S. Court of Appeals for the Ninth Circuit, in Johnson v. Poway Unified School District recently 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. 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 reversed, however, holding that Johnson had no free speech claim. The Court held that for public high school teachers in this context, "forum analysis" must give way to the specific framework the U.S. Supreme Court has developed for public employee speech claims. That framework asks, among other things, whether the employee spoke as a private citizen rather than a public employee. An employee speaks as a public employee when the speech is made pursuant to "official duties." In those circumstances, there is no First Amendment free speech claim.
The Court held that Johnson's banners constituted his speech as a public employee. The Court applied the following standard for making this determination for a teacher, in this particular 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 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."
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.
David Urban (durban@lcwlegal.com) is an attorney at the Los Angeles office of Liebert Cassidy Whitmore, a full-service education (including business and facilities), labor and employment law firm representing California school districts. Dave is also a contributing author to the firm's California public agency labor and employment blog.
Reproduced with permission from Small School Districts Association, January-February 2012 Issue. For more information about SSDA, please visit www.ssda.org