Poway Prohibits Pedagogical Proselytization


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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75 Responses

  1. Avatar Mike Schilling says:

    Had Johnson been teaching civics or history, where discussion of the subject matter of the posters would have been more on point

    Since calculus was invented by Isaac Newton, religious nutjobbery is completely on point.Report

  2. Avatar Tod Kelly says:

    Burt, next time it might be helpful if you included some details.


    Another great and fascinating analysis. Seeing this and both the Plan0 and Bay Minette cases studies as a whole, I can’t help but notice that with each new case you talk about the lines are getting progressively fuzzier. I’m wondering if this was by design on your part, or just they way the it turned out?

    I have a harder time than most detaching myself from the human elements of cases like this, so as I read the entire thing this first bit was in the forefront of my mind:

    “But at some point he and a colleague got into a dispute about an unrelated issue”

    I know that the important issues here are rights and precedents, but it’s hard for me to shake the the notion that all of this hubbub was the result of some petty squabble over parking spaces some other such thing.

    That being said, I agree with you that school had the rich to tell him to remove the signs. (Which, I gotta say, are probably the result of the math teachers love of both God and his students – but which could easily, easily be misconstrued to mean ‘Fish You, Secularists!’)Report

    • Avatar Kimmi says:

      Ya know, some people love to quote G-d all the live long day, and I never ever get the feeling that they’d care if you didn’t believe in him. Or if you were gay, or pro-abortion, or nothing. They’d love you no matter what, and be just as good to you as they could possibly be.

      It’s the exclusive people what get on my nerves.
      Course, I can’t see the sort of people what put a loving G-d at the forefront of their faith forcing him on other people.Report

    • Avatar Burt Likko says:

      Tod, of the three cases I tackled, this was by far the hardest because not only were the legal analyses at both levels so deep, and not only was I effectively taking on two opinions at once, but both results were subject to critique. Also I like my posts to stand alone, so that means doing some backgrounding on territory I may have covered even very recently (e.g., the Lemon test).

      Finding the nuance between the two opinons to discern the right result was, and remains, very difficult. My defense mechanism for complexity is loquaciousness and there are no page or word limits here as there are in a legal brief. I think of the three cases I’ve done recently, this one is by far the most challenging for all sides.Report

      • Avatar Tom Van Dyke says:

        You got this one right, Burt. The teacher has no “free speech” rights: the school decides what can & can’t be said.

        Certainly it was unfair giving free rein to other favored viewpoints [Buddhism, John Lennon’s “Imagine”] but that’s for powers higher than the principal to fix.

        However, via Lemon, an idea grew in the 20th century that simple theism is the same as “religion,” that the existence of God is a matter of opinion, and to say God exists is “establishing” religion. This of course, is a modern innovation and not demanded by the Constitution. The ratifiers of neither the First or Fourteenth ever conceived they were amending the Constitution to outlaw God, i.e., theism.

        “We are a religious people and our institutions presuppose a Supreme Being,” wrote William O. Douglas in Clausen, as recently as 1952.

        Our institutions presuppose God, except we can’t acknowledge it, as Bradley Johnson did in his classroom. Absurdity are us.Report

        • Avatar Burt Likko says:

          Now I know all the work I put into this post was worth it — TVD is a challenging audience to please. Much appreciated, sir.Report

        • Avatar Tim M says:

          “Our institutions presuppose God”

          I would find it interesting if you would defend that statement a bit. I don’t see anything presupposing God in our institutions, except at the level of rhetorical flourish (“endowed by their creator” etc). I suppose you could reach to say that laws make moral judgements, and all morality is rooted in religion, but that’s a religious statement in and of itself. The constitution, which lays out the legal institutions of the country, is conspicuously free of references to God, even as window dressing.Report

          • Avatar ThatPirateGuy says:

            Pop quiz time how many times do the word creator or god appear in the constitution?Report

          • Avatar Burt Likko says:

            These are Justice Douglas’ words, not necessarily TVD’s, although I do interpret his reference to them above as an endorsement by TVD of their [putative] truth.Report

          • Avatar Tom Van Dyke says:

            @TimM: “Endowed by their creator” is not a rhetorical flourish. It established “the right to have rights.”

            The American system—its political philosophy, even admittedly a political theology—is that man has certain pre-political and unalienable rights that precede governments.

            The objection to even writing a “Bill of Rights” was that by enumerating some of them, it could be taken that they were limited by those enumerations, just as the federal [central] gov’t is limited by the Constitution.

            This is why Roger Sherman and others insisted on the Ninth Amendment, that

            The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

            The problem with “social contract” theory, as practiced in the UK and most other systems/institutions, is that rights are purely political, whatever you can wrest from the crown or parliament, Leviathan as it were.

            The great American Founder James Wilson, our first great legal theorist, pointed this out in contradistinction to Blackstone and Burke:

            “Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke — Sir William Blackstone.” —Wilson, Of the Natural Rights of Individuals

            Now this seems like the tall weeds of arcane theory to the modern product of our academic establishment, who is taught that the Constitution is all there is to our system, a “godless” social contract.

            But the argument remains that neither the First or Fourteenth Amendments ever declared God-given rights— hence God Hisself—as an area of “neutrality” or a matter of subjective opinion. For the ratifiers of the First and Fourteenth held God to be a reality.

            [Yes, per freedom of conscience, people are free to demur on an individual level on whatever they want: people are free to believe in creationism even though it’s pap. But demurral on the individual level does not place a requirement on society or even government. To accommodate all demurrals on the individual level, we must cede reality to an epistemological nihilism, and exile all values and morals in the name of “neutrality.” As we see, “neutrality” isn’t neutral atall.]

            I would not have chosen William O. Douglas’s formulation: I picked him out as a lion of jurisprudential liberalism, that even he, as late as 1952, was making an argument similar to the one I make here. The “godless” Constitution is a recent invention, yet most folks born since 1952 believe it has always been so.

            I should probably have done a full blogpost on this, but I admit a laziness and a greater affinity for discussions like these than monographs.

            Thx for asking, Tim. I hope you did indeed find it “interesting” and yours was not just another spider-to-the-fly invitation.Report

            • Avatar ThatPirateGuy says:

              Endowed by their creator does not appear in our founding document. So why on earth are you referencing it?

              Constitution != declarationReport

              • Avatar Tom Van Dyke says:

                Asked and answered infra, Mr. Pirate. The Declaration has no legal force, true; however, it gives us a tool to understand what the ratifiers understood themselves to be ratifying.

                Further, religion was left to the states: the First Amendment enjoins the central gov’t from butting in. To this day, 90+% of the state constitutions acknowledge a Supreme Being in one form or another. The ratification of neither the First or Fourteenth made them unconstitutional.

                Well, at least that’s how it stands now. I have no expectations about what the “living” Constitutionalists will rule as time goes by. But as it stands now, the question of God remains open: the Constitution demands neither God nor godlessness.

                This is a very difficult issue to negotiate discussion in a forum like this. I thank you in advance for a cooperative—as opposed to adverserial—joint inquiry. Any other approach will kill it.Report

      • Avatar RTod says:

        “there are no page or word limits here as there are in a legal brief”

        I did not know this. What is the page limit?Report

        • Avatar Burt Likko says:

          Depends on the kind of brief you’re doing, of course. For instance, in California’s appellate courts, an appellant’s or respondent’s opening brief is limited to 14,000 words. Or, in California’s trial courts, most motions must be 15 pages of argument or less. These are normally generous enough limits that I don’t need to crimp my style, but sometimes more complex things come up and I need to uncomfortably squish things down.Report

    • Avatar wardsmith says:

      Tod, just because I know you’re dying to find out, there are as many as 963 oil change establishments near Poway 🙂Report

  3. Avatar Pat Cahalan says:

    > The ironic thing is, it seems that he and his
    > principal were on their way to a productive
    > discussion about reaching that exact
    > solution when the lawsuit got filed.

    Wait. Who filed the suit, then?Report

    • Avatar Burt Likko says:

      Well, Johnson did. And we can’t ever really know the dynamics of how that came about.Report

      • Avatar Patrick Cahalan says:

        Ah, I grok your nuance.

        Yes, sometimes people are standing there arguing about which ride to go on at Disneyland vs. waiting for the Main Street Electrical Parade, and then the Parade starts and things take a different course.

        The die has been cast, and all that.Report

  4. Avatar ThatPirateGuy says:

    I certainly would ask for another calculus teacher for my kid* if I saw that stuff in their teachers classroom.

    *Kid is currently hypothetical and I have yet to convince the gf we Gould have one.Report

  5. Avatar E.C. Gach says:

    Having not read through your thorough analysis yet Burt, my first thoughts are, it’s not “his” classroom, so the Principal or whoever else is in charge of the school’s property cand do as they see fit.

    However, in principle I see no problem with one teacher expressing their point of view as such. If kids don’t like it or feel unwelcome, they don’t have to like him. Part of growing up is learning how to tolerate, deal with, or not deal with, those things and people who displease us.Report

    • Avatar Burt Likko says:

      I’m about 85% with you, E.C. Gach. I would say that it’s not Johnson’s classroom, so the school authorities can create whatever Constitutional rule they see fit. The big issues for what “Constitutional” means in this context are viewpoint-neutral and evenhandedly administered. That’s a treacherous sea to navigate, though, and I’m not entirely satisifed even with my own proposed route through it.Report

  6. Avatar Creon Critic says:

    But in acting, the school should have acted evenhandedly. If Johnson has to take down his religious/political/historical posters, then so do his colleagues.

    Isn’t this context dependent? With different contexts in the other classrooms the particular postings become permissible or impermissible? So I could see a music teacher and the Lennon Imagine display or a social studies teacher and the Tibetan prayer flags changing the analysis – as well as whether the display dominates the classroom as Johnson’s posters did. Also, there is the discussion of intent, the fact that the teacher who put up the prayer flags “had no idea as to whether the flags had any particular or significant religious import” is a pretty significant. I think the point of evenhandedly applying the analysis is right, but I’m not sure that it would result in all colleagues having to remove their posters as well.

    (Thanks for a fascinating post. And hurray for long(er) form posts, you didn’t need the “TL/DR” people anyway.)Report

    • Avatar Patrick Cahalan says:

      I’m going to agree with Burt’s suggestion.

      If action is required or desirable, the standard for action must be set, thus providing all of the teachers with the actual framing of intent, on the part of the administration.

      Because intent is pretty important in these sorts of disputes, it behooves the guys and gals in charge to make their position clear. If you find Johnson’s display inappropriate for whatever reason, you need to draft and quantify that and then disburse it to the entire faculty at once, to ensure equal treatment.

      Plus, it will save the district a metric fishton of money when they get sued.

      Any sort of written policy that allows whatever it is you think is appropriate while disallowing what you think is inappropriate, dispensed to the faculty and enforced across the board, is better than an ad hoc one-off ruling against a particular faculty member.Report

      • Avatar Creon Critic says:

        For me part of the issue is that there is less danger of inadvertently giving the impression of state support for some religions rather than others. Overall, Christianity is the privileged religion in the US (December 25 as a federal holiday, the White House Christmas Tree, etc.), there is far less danger of Tibetan Buddhism eclipsing Christianity in this way. Which isn’t to say in similar circumstances, a Tibetan Buddhist’s math class displaying overwhelmingly celebratory imagery should not also receive the same treatment as Johnson. Overall, I think context matters and principals should be given more latitude beyond everythings allowed free-for-all or nothings allowed prohibition.Report

        • Avatar Burt Likko says:

          While I agree with you about Buddhism, there are those who would say that “anti-religion” is making a credible threat at being Established, though. I think a lot of those who have that point of view fog up the difference between secularism and antipathy to religion (generally inadvertently), but that does not mean that there is not a point to be made there.

          For instance, as a nonbeliever, I would prefer the President not add “so help me God” to the end of his oath of office. But if the President wants to say it as a religious expression of his sincerity when making the oath, then yes, he can do so, and a lawsuit to prevent him from doing so is both incorrect as a matter of law and misguided.

          Neutrality means just that, even if it’s sometimes hard to find. I don’t think either court here found a truly neutral result.Report

          • Avatar wardsmith says:

            Burt, How do you feel in court with the witness stating, “I promise to tell the truth, the whole truth and nothing but the truth… so help me God”? Or is that only in the movies anymore?Report

            • Avatar greginak says:

              You don’t have to swear to gosh to tell the truth anymore. sorry.Report

            • Avatar Burt Likko says:

              Actually, it’s the clerk stating it and the witness saying “I do.”

              By statute, it’s proper to administer the oath either with or without the “…so help you God” portion and the decision about which version to use is at the discretion of the clerk.

              My own declarations and affidavits use the religion-neutral form of the oath.

              At time, I feel that the “…so help you God” is a bit presumptive in that it simply assumes that the witness believes in God in the first place. But so what? The witness still is required to tell the truth and that’s what counts. The penalty of perjury applies with equal force to all witnesses, regardless of their religious views.

              I treat the “…so help you God” clause (when imposed upon me or my clients) as an irritating surplussage. No need to make a fuss nor any profit to be had in doing so.Report

  7. Avatar Katherine says:

    If Johnson has to take down his religious/political/historical posters, then so do his colleagues.

    I think this is the core of the matter. If the school, or the courts, are going to make Johnson take down posters convening a theist viewpoint (nothing in them is specifically Christian), they also have to prevent teachers from having posters expression Buddhist, Hindu, secularist/anti-religion, etc. beliefs. You can’t single out one group.Report

  8. Avatar Jaybird says:

    I love these posts.

    My problem is that I have nothing to add to the points you’ve made. I just start thinking about something else and then make a comment about *THAT*.

    So pardon my digression.

    I don’t really know how to feel about ceremonial deism.

    It’s not an establishment of a religion (it’s barely monotheism) and it allows pretty much everybody to project their own religion onto the religion as it is practiced. So a Catholic guy and a Southern Babtist and a Jewish guy and a Muslim can all smile and nod and think that it’s their take on the deity being thanked for the fellowship, food, and the grand opening of this here hardware store.

    In that, ceremonial deism is inclusive of pretty much everybody who agrees with Eisenhower’s statement that “our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.” (“A deeply felt religious faith, and I don’t care what it is” is a great description of ceremonial deism in the first place.)

    On the other hand, it kinda gives the game away, no? The point is the deeply felt and “I don’t care what it is” and, in that, it undercuts the exact same thing that it’s supposedly holding up… and the proper response to that, for a person who has a particular flavor of deeply felt religious faith, is to point out how this ceremonial deism is *ACTUALLY* Post-Protestant Evangelical Christianity (or whatever)… at which point we see stuff like in the lawsuit.

    It seems mostly harmless, until it isn’t, at which point it should probably be told to knock it off… but a rule outlawing such in the first place would likely result in more general harm in the long term.Report

  9. Avatar Dan Miller says:

    Fascinating post. Thanks!Report

  10. Avatar DensityDuck says:

    I dunno. At first glance I’m tremendously annoyed by these posters, because it’s blatantly obvious that they are pushing a specific viewpoint regarding religion–call it Ceremonial Deism if you like, but it’s clear that the point is “God exists and the US is based on what he wants”.

    But, on the other hand…would I be happy with giant homemade banners saying “Religion is a lie, independent thought is the only way to truth”? Or “Bush caused 9/11”? Or “government interference in the market will destroy prosperity”? No.

    Which, paradoxically, means that I have to accept all of them. Because, when I get down to it, my objection is aesthetic. The message is stridently delivered in a needlessly blunt manner that lacks any attempt at subtlety or interest in the audience; it’s poorly thought-out and belies a lack of intellectual capability (in the presentation and the simplicity of statement, not in the specific notions behind it, to which I’m not speaking); the graphical design (font choice, typesetting, layout) is as bland as an unsalted wheat-flour cracker. It’s ugly. And that’s why I don’t like it.Report

  11. For me a big sticking point is that those posters were hung in a calculus classroom, and have nothing whatsoever to do with calculus. Thus, even if a student were to want to express a dissenting view, there would be little context in which she could do so without disrupting the class’s schedule and routine. If one does think of a classroom as a limited public forum (and I don’t). then there must be room for expression of an opposing viewpoint. In a calculus classroom, there seems little chance that a student may do so.Report

    • Avatar Patrick Cahalan says:

      That’s a good point, Doc.

      If it isn’t a limited public forum, then the speech issue doesn’t apply.

      And if it is, then the good teacher has a disproportionate amount of power over the other people in the public forum. Hey, I just referenced a new post! Serendipity!Report

    • Avatar Mike Schilling says:

      Set theory, maybe? With the right assumptions you can take apart a sphere and reassemble the pieces into three spheres of the same size.Report

  12. Avatar Robert Cheeks says:

    Burt, what percentage of 9th District Circus decisions are laughed out of the Supreme Court?
    On the other hand the teacher is guilty of coercion.Report

    • Avatar Patrick Cahalan says:

      I’m actually curious as to the answer to Bob’s question.Report

    • Avatar Burt Likko says:

      “Laughed out”? None. The Supremes take their work seriously, as they should. If they see error of law coming from the Ninth, that is a matter to be addressed with sobriety, not contempt or derision.

      I don’t know how many 9th Circuit decisions are reversed. I suggest that if you undertake such a study, you would be well-advised to separate out capital punishment cases from the rest. Should you do such a thing, I would predict that the reversal rate is roughly the same across all the Circuits. Perhaps I would be wrong.

      Now, it is true that a disproportionate number of the active Circuit Judges on the Ninth Circuit were appointed by President Bill Clinton and that the Circuit has a reputation for being particularly liberal. But I’m not all that confident that the liberal reputation of the Ninth has been all that well-earned (at least, outside of the capital punishment arena). It is the case that some individual Judges on the Ninth (Reinhardt, Pregerson, Paez) are unusually eloquent and powerful in their opinions, and these tend to be lionized by liberals and demonized by conservatives. But the righties have their heroes on this bench, too (Kozinski some of the time, O’Scannlian, Bybee).

      The Ninth Circuit opinion in this case was decided by a panel of two Clinton appointees and a Bush II appointee. Note that the panel decision was unanimous.Report

      • Avatar wardsmith says:

        There is this site. It also references others. I’m currently playing with the scotusblog, but its search engine doesn’t seem to work right so I’m doing some Google-Fu tricks on it.Report

        • Avatar wardsmith says:

          The answer seems to be 80% overturn ratio the last 10 yrs or so. That also includes “vacates” whatever they are.Report

          • Avatar Burt Likko says:

            How does that compare with other Circuits, and does that include or exclude capital punishment cases?Report

            • Avatar wardsmith says:

              Worse than the other circuits but then again the 9th is the biggest. Couldn’t work out the capital punishment angle. I ain’t a lawyer so this is the kind of stuff I was having to wade through memo They seem to have done best in that year, which is why I gave it to you. Maybe you’ll know which if any are capital cases, the verbiage doesn’t really help me. In the good old days I could have used my friend’s law school Westlaw access and done searches there, but he’s fully retired now so no joy.Report

              • Avatar Robert Cheeks says:

                WS, thanks for the info. We must keep in mind that the Ninth covers the land of fruits and nuts and that alone has be a terrible burden. I do hope you’ll care on with the inquiry because an 80% throw out rate seems high. I seem to remember some of the cases in the 80’s and 90’s got the court tagged with, “circus.” Burt, I appreciate your efforts to maintain the idea of the supremecy of the law.Report

              • Avatar Burt Likko says:

                I confess I’m a little bit surprised that the rate is that high (if I read Scotusblog’s memo correctly, about 10% higher than the reversal rate for the other Circuits), but again I think the capital punishment angle would account for a lot of that as the Ninth really does stand apart on that issue as compared to its sister circuits — a high number of states in its jurisdiction with capital punishment on their books but a high occurrence of judges on the Circuit who have significant qualms about capital punishment in the first place. I can recall one opinion in a habeas case by Justice Scalia in which he focused particular ire and irritation at the Ninth. Scalia indulges in invective much more than any of his colleagues (although Justice Kagan is starting to give him a run for his money) so again this may not be the most objective, reliable data point from which to draw a conclusion.

                On further consideration, I wonder if the high reversal rate has something to do with the fact that the Supreme Court gets to pick and choose which cases it reviews. If there was something approximating consensus among the nine Justices that a particular case had been decided correctly, it’s doubtful that they would select that case for review.

                But it could very well also be the case that despite these things, the Ninth is appreciably more out of step with the Supremes than its sister Circuits and that wardsmith‘s research bears out that proposition. Thanks for doing the tedious work of looking into it, WS!Report

              • Avatar Kimmi says:

                …. Or, it could just be that they see different cases. 3rd circuit takes all the corporate cases, because nearly all corporations get incorporated in Delaware (or at least a lot of the large ones).Report

  13. Avatar Anderson says:

    Really enjoyable read. As a student, I can’t imagine myself getting too upset over these posters..They almost strike me as funny, in a “America, fuck yeah!” kind of way. So long as the teacher didn’t actively call attention to the posters or give the impression of favoring religious students over non-religious students. If he teaches me calculus well, then I’m happy.

    But when it comes to obeying your boss, I don’t think the teacher’s case is strong enough to warrant claims of discrimination. Maybe a little heavy-handed, but certainly within the principal’s jurisdiction. The principal’s action met all three prongs on the Lemon test and no school wants to be on the hook for a potential Establishment clause debacle. Although, ironically, by trying to avoid one lawsuit, the school only ended up getting in different one. God’s will, perhaps?Report