Poway Prohibits Pedagogical Proselytization
A calculus teacher named Bradley Johnson at a public high school in Poway, California decorated his classroom with posters described as:
…two large banners, each about seven-feet wide and two feet tall, hung on the wall. … One had red, white, and blue stripes and stated in large block type: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and, “GOD SHED HIS GRACE ON THEE.” The other stated: “All men are created equal, they are endowed by their CREATOR.” On that banner, the word “creator” occupied its own line, and each letter of “creator” was capitalized and nearly double the size of the other text.
Photographs of the posters as they were displayed in Johnson’s classroom are available for review on the last two pages of the Ninth Circuit’s decision.
Johnson had displayed posters like this in his classrooms since 1982 without complaint prior to the events leading to this lawsuit. But at some point he and a colleague got into a dispute about an unrelated issue, and the principal got involved and was asked to evaluate the religious posters. Although there were some more formal procedures involved in making it happen, she eventually told him to take the posters down. Johnson claimed a right of free speech to display the posters but the principal said, “No, these posters are different because of their religious content,” and demanded that Johnson take them down, which he did, but he sued his employer for making him do it and sought the right to put them back up.
The case presents a question of whether the teacher’s free speech rights trump the school’s obligation to not Establish a religion. Since I’m unpacking and opining on not one but two extensive opinions, I’ll get to the punchline early for those inclined to offer their opinions based upon reasoning like “TL/DR”: the district (trial) court sided with Johnson. But on appeal, the Ninth Circuit Court of Appeals sided with the principal. The posters must stay down. No petition for rehearing before an en banc panel of the Ninth Circuit nor has a petition for certiorari yet been filed with the Supreme Court. The facts and law supporting each side are offered below the fold.
1. The Facts
Functionally uncontested by either party, and acknowledged to various degrees by both courts, are these salient facts.
- Johnson had purchased the posters with his own money. (Presumably, he did not personally create them if he purchased them.)
- Johnson was well-known to be the faculty sponsor of the school’s Christian Club.
- Johnson had displayed the signs in his classrooms for over 20 years with no complaints from anyone, nor any apparent disruption in his classes.
- Johnson was paid by the school district to teach calculus, not civics, and all parties agreed that the posters did not have any particular relevance to calculus or math in general.
- Poway School District permitted a diversity of non-cirriculuar displays in other classrooms, including “Tibetan prayer flags with writings in Sanskrit and images of Buddha”; “… a large poster of John Lennon and the lyrics to the song ‘Imagine'” (the lower court’s opinion quoted the lyrics and highlighted the lines that seemed to be critical of religion); posters of Gandhi including some with quotes from him, Malcolm X, Martin Luther King, Jr., and the Dalai Lama; a Libertarian Party poster and a Greenpeace poster; posters depicting musicians and athletes; a Navy poster depicting an aircraft carrier; and posters and bumper stickers with a variety of political and social slogans, at some of which touched on or referred to matters of religion.
- The Assistant Superintendent who investigated the banners testified that no individual banner was a problem; rather, it was all of the banners read together and taken as a whole.
- The principal and the assistant superintendent both believed the quotes on Johnson’s posters had been taken out of context to convey a meaning unintended by their original authors, and Johnson and the principal could not agree on the appropriate way to address that issue, although both offered ideas.
- The principal’s order that the banners be removed justified the order (in part) on the grounds that the banners conveyed a Judeo-Christian viewpoint.
- The principal claimed that their conversation regarding the appropriateness of the posters included this exchange: “If an Islamic student walks into your classroom and sees all of these phrases…. they may feel like, ‘Wow, I’m not welcome,’ or ‘I’m not gonna fit in this classroom.’ And they may feel bad.” “Dawn, sometimes that’s necessary.” Whether Johnson disputed that testimony is unclear from the published opinions.
The weight to be assigned to these facts may vary from analyst to analyst. Another interesting fact noted by the Ninth Circuit but not the District Court seems to me relevant as to the issue of the intent of the parties.
The school district’s administrators made a finding that Johnson’s posters conveyed a sectarian religious message, and that they had the intent and purpose of advancing a particular religious viewpoint, which they felt they had a duty to prevent under the Establishment Clause (my phrasing, not theirs).
Johnson initially testified in his deposition that his intent was only to be patriotic, but later stated:
My purpose was to celebrate our national heritage of — and the national motto saying the Pledge of Allegiance. I know that there’s — you know, is it God or is it — or is there no God. If that’s the choice, then this is espousing God as opposed to no God, I’ll say that, but not any particular God. … I’m not intending to highlight or promote any of that kind of religious background because I don’t know what it was. I’m trying to highlight the religious heritage and nature of our nation, that we have that as a foundation.
2. Legal Contentions
Johnson claimed that his Federal constitutional rights were violated in three ways. First, he claimed his free speech rights were violated. Second, he said the District’s actions violated the Establishment Clause. Finally, he said that he was denied the equal protection of the laws. Notably, Johnson did not claim that his rights under the Free Exercise Clause were implicated by having to take down the posters. Johnson also brought cognate claims of similar rights violations under the California Constitution, which is for all intents and purposes co-extensive with the Federal rights.
The District Court also included a passage (page 8, line 20 – page 10, line 1) aimed at the question of to what extent the Constitution permits a public official to do and say in recognition of religion. This issue came up in another thread recently and the particulars of that discussion were such that I didn’t get a satisfactory take out of the idea. It’s meaty enough that it deserves its own post for discussion. This post is going to be in depth enough as it is. Suffice to say that I hope everyone agrees on at least the extremes — the government cannot tell Johnson he needs to suspend his religious beliefs when he goes to work, nor can the government sanction Johnson evangelizing to his students when he should be teaching them calculus. Hanging the posters is clearly in between at least those extremes. Where on that spectrum it falls, you will have to decide for yourself.
3. Free Speech
The District Court and the Ninth Circuit disagreed on the extent to which a teacher enjoys free speech rights in class; this was the foundation of the divergent results. We can seriously get into the intellectual weeds here looking at the legal foundations of these various doctrines. Some of that is unavoidable here.
A. Forum-Based Analsysis
The District Court found that teachers enjoy functionally unlimited free speech rights in a setting like a classroom at a school where teachers are allowed to hang posters as described here. The school, to this judge’s mind, had become at least a limited public forum and Johnson enjoyed very close to the same rights to speak on issues in the classroom as he would have on the street. Very important to the District Court’s analysis was the issue of what kind of a forum had been created in the school — an open, public forum; a closed, private forum; or something in between.
The District Court came to the conclusion that a limited public forum had been created, and the teacher enjoyed functionally the same rights to comment on pretty much anything in the classroom that he would enjoy were he not a public employee and out in a public park. This does not seem like the right analysis of a limited public forum and I do not think that can possibly be the right result. A school can and must require that a teacher say certain things as part of his job — it can require that the teacher dispense instruction about particular subjects (in Johnson’s case, that would be calculus). It can and probably must require that the teacher refrain from other kinds of speech that would be protected in another setting — producing pornography, for instance. If Johnson must talk about calculus and cannot talk about pornography, then we’re not really dealing with a public forum or even a quasi-public forum, at least not as far as he’s concerned.
Ultimately, and after a lot of time in the weeds, the District Court reaches the real conundrum in cases involving speech with religious content:
In Faith Center, the Ninth Circuit reviewed these cases and drew a line between speech from a religious perspective (which was constitutionally protected in each of the limited public forums) and pure religious worship (which exceeded the boundaries of the forums). Faith Center, 480 F.3d at 913.
And really, that’s where we come back to a point that (it seems to me) broad consensus exists and therefore an irreconcilable problem also exists: it is inherently difficult to tell when speech from a religious perspective ends and worship or evangelism has begun. To even attempt such an analysis requires determining the intent of the speaker — a task that courts have experience in doing and is not devoid of information, but which is ultimately inexact — and it requires determining the reaction of the reasonable listener — again an inexact process, this time one which most often depends on the oft-distrusted “reasonability” of judges or upon the notoriously unreliable ability of twelve citizens selected at random to reach a consensus in a fashion that inspires confidence in the intellectual processes used in the jury room. To even consider this analysis, we must look at the content, the form, and the context of the speech in question — and of those factors, content is king.
B. Employment-Based Analysis
Of note is that the District Court rejected, and the Ninth Circuit relied upon, the case of Pickering v. Board of Education (1968) 391 U.S. 563. In Pickering, a high school teacher wrote a letter to the editor of his local newspaper critical of how the administrators (to whom the teacher reported) had handled fundraising to build new schools; he was fired for breaching his duty of loyalty to his employer. The Pickering Court held that unless the defendants could prove that the teacher had intentionally or recklessly made false statements in that letter, he had a First Amendment right to comment about public issues. From Pickering, courts have developed this analysis to determine whether an employee who is treated negatively by her governmental employer has had her free speech rights violated:
(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff ’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
The test seems mostly right to me. But one problem I have with it is that the fourth prong of the test seems a little bit abstract. What is an “adequate justification” for disparate treatment? In Constitutional law, we know four levels of justification for any governmental action. First, there is a “compelling interest,” like preservation of national security. Second, and less important, is an “important interest.” Third, there is a “legitimate interest.” Finally, there is “arbitrary and capricious” activity. What is the dividing line between these levels of justification? I’m afraid I can’t define that for you all that much more than to point you at the words as though they were self-defining, which I know they aren’t. Things just plain get squishy when you get down here, folks; I’m not sure how they can really be made more precise than this but I wish they could be.
So the fourth prong in the Ninth Circuit’s analysis uses the phrase “adequate” without even telling us which of these meets the definition of “adequate.” All I can tell you is that “adequate” seems like a relatively weak word to me, weaker than other available words like “substantial” or “significant.” So we’re probably looking at something like that third level of justification, “legitimate,” which means, basically, non-arbitrary. And that may be appropriate:
When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom,” or else “there would be little chance for the efficient provision of public services.” Ceballos v. Garcetti (2006) 547 U.S. 410, 418 (citing Connick v. Myers (1983) 461 U.S. 138, 143, “…government offices could not function if every employment decision became a constitutional matter.”)
So while this overall seems like a worthwhile test, I also have to question the predicate of the test — was Johnson subject to an adverse employment action by the school district? They asked him to take some posters down, and (reluctantly) he did. Could we consider this an adverse employment action because the school district did not make similar orders to Johnson’s colleagues who got to keep their sort-of-religious-sort-of-political posters up? Perhaps — but at this point we’re getting into territory to be covered below, the issue of equal protection.
The Ninth Circuit found that teachers are public employees and they are paid, in essence, to speak and therefore are subject to greater amounts of control when they are speaking, at least while “on duty,” than private citizens. At the end of the day, this seems pretty much right to me. When you take a job working for the government, you have to accept the restrictions and duties that go with it. That can and in this case does include a degree of submergence of your own viewpoints. Johnson’s speech was not that of a private citizen but that a of a public employee, and there the analysis ends — a public employee does not have First Amenmdent free speech rights, at least not while on duty.
As to the question of permitting the other apparently religious content to remain up, the Ninth Circuit pointed to a prior case, Downs v. Los Angeles Unified School District (9th Cir. 2000) 228 F.3d 1003. In Downs, faculty (not students) at a school within LAUSD were permitted to post pretty much whatever they wanted on a bulletin board in the school’s hallway; the principal retained general oversight over the content of the board. A number of things went up including a flyer for Gay and Lesbian Awareness Month. Downs didn’t like that, so he put up his own flyers explaining why he thought homosexuality was morally bad. The principal ordered Downs to remove his material, and his material only, from the board. This sounds not at all unlike Johnson having to take down his posters while other teachers did not have to take down theirs. Providing the board, in other words, did not create a limited public forum, any more than did providing the opportunity to put up posters. If these are fora for public speech, they are private and not public fora.
C. Forum And Employment Considered Together
I’m not sure I agree with that at all. As it stands, it appears that the school If a forum for speech has been created at all, then a forum analysis must take place and, at minimum, viewpoint-based censorship cannot be done. The government must treat its employees alike; if it allows them to speak at all, it must do so on an evenhanded, viewpoint-neutral basis. That means giving Johnson a reasonable means of expression for his “Christian Patriot” point of view just as much as it means giving other teachers their “pacifistic/pro-John Lennon” or “pro-Tibetian” points of view.
At the same time, the school district has to have the ability to control what is said and expressed within its classrooms. If the school district relinquishes control, it seems nearly derelict in its duties. In Johnson’s case, the classroom exists as a place where students are to be taught calculus, not as a place where they are to be exposed to a particualr viewpoint in the culture wars. So some kind of regulation of the forum is necessary.
Were I the principal, I might have created a rule something like this:
One wall in each classroom, which shall be neither the wall which includes the entry or exit point, nor the wall upon which the blackboard is located, may be designated as the “open wall,” upon which the teacher may place any non-cirricular material that does not constitute a significant distraction from pedagogical activities. Other walls may only be decorated, if at all, with educational material relevant to to subject matter of the assigned tasks, such as maps, charts, portraits of significant indivduals in the field of study, and other related materials, as well as bulletins, flyers, and other materials related to school activities.
That rule would not eliminate all problems, nor the potential for all arbitrary decision-making. But it does provide some guidance to the teachers about what they can and cannot do, and where they can do it. Most important, it makes clear to students that this area is where the teacher expresses herself, not where the school is trying to engage in educational activity. That would, in my mind at least, circumvent the Establishment problem, allow personal expression of functionally any viewpoint, and still permitting the school a substantial hand in making sure that the students were not exposed to something either inappropriate or conveying a message that their academic performance related in any way to their adherence to any particular point of view (whether that be pro-Christian or anti-Christian in this case).
But even then I’m not sure I escape the tension — either there can be posters at all, or there cannot; if there can be, then either the posters must be curricular, or they can be non-curricular, in which case the Johnson posters pretty much have to be allowed.
The District Court went well out of its way to argue that the banners created no danger whatsoever that any reasonable observer would conclude that the school was endorsing a particular religious message through the banners. In my opinion, the Court went too far out of its way to do so, losing credibility in the process.
If I had been a student in Mr. Johnson’s class, I would have got the message loud and clear that Mr. Johnson is a Christian and he thinks you have to be a Christian in order to be a patriot and a real American, and that I’d better at least go along with that silently if I know what’s good for me. I have no idea what kind of personality Johnson projects to his students in class, but the posters convey a powerful emotional emphasis on submission to authority. YMMV, but even if your take on the posters is different than mine, what I’d like you to critique is whether a reasonable high school student, likely one of indeterminate religious belief, could feel as I do about them.
But that’s a sidetrack considering the use of the Establishment clause in defense of the school’s action. What’s more interesting is that Johnson brought an affirmative Establishment Clause claim against the school. The essence of the claim is that while the school ordered Johnson to take his Christian posters down while making explicit reference to the sectarian religious content on his posters, it did not similarly order other teachers to take down posters with portraits and quotes from Buddhists and Hindus, and Tibetan prayer flags. Thus, Johnson claimed, the school Established Buddhism and Hinduism as religions favored over Christianity. The District Court went further and indicated that the lyrics of the John Lennon song “Imagine” were anti-religious and thus hinted that by permitting that poster to remain up, the school Established secularism or anti-theism as an endorsed religious viewpoint as well.
The District Court did not engage in a deep analysis here, as it did not need to, given its finding that Johnson had a free speech right to display these posters. The Ninth Circuit, concluding that no forum can be created in the governmental workplace at all, had to deal with the Establishment issue more directly.
Relying as it does on the relatively recent “government speech” doctrine (a favorite of Justice Alito, by the way) the Ninth Circuit analysis reached the point that in order for the government to engage in speech, and preserve its standing under the Establishment Clause, it must be strictly netural with regards to religion:
Rather, what the Clause requires is “governmental neutrality”—“neutrality between religion and religion, and between religion and nonreligion.” McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas , 393 U.S. 97, 104 (1968[/efn_note] (other citations omitted). It requires that the government “not be overtly hostile to religion but also that it may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general, compelling nonadherents to support the practices or proselytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community.” Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 9 (1989) (plurality opinion); see Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). 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. Tex. Monthly, 489 U.S. at 9 … .
Which is all well and good, and mentions in one passage all three Establishment Clause tests in play — Lemon v. Kurtzman, the endorsement test, and the coercion test. But the Court went on to apply only the Lemon test, finding that the removal of the psoters passed all three prongs of that test (secular purpose, neither advancing nor inhibiting religion, and no excessive entanglement with religion). Avoiding a potential Establishment Clause violation is a valid secular purpose for a governmental activity. The question that Johnson’s supporters will have is “how did this action not inhibit religion?” To which the Ninth Circuit responds, if Johnson’s purpose was not to advance religion (according to his own testimony) then removal of the posters can hardly be said to inhibit it.
5. Equal Protection
There was very little analysis of the Equal Protection issue by the District Court. Having concluded that Johnson was ordered to take down his posters because of official disapproval of their Christian content while other religiously explicit content could remain up, it was obvious without need of deep discussion that Johnson had been denied the equal protection of the laws.
The Ninth Circuit held that since the speech in question was the government’s, no individual has a personal interest in the speech and therefore could have no interest in controlling, dissenting from, or speaking about that speech. Thus, no equal protection interest would apply, either. But as to the other religous material, the Ninth notes that the “mere mention” of religious content does not cause a problem, either under the Establishment clause or under the Equal Protection clause, because Johnson’s speech was not on the same ground as the other speech. The reason for the inequality in footing was the message of endorsement that Johnsons’ posters conveyed. Because Johnson’s speech conveyed an attitude that the government (the school, Johnson in his role as a teacher, or some other level) endorsed the “Christian Patriot” message of the posters, the speech was differently situated than the Tibetan prayer flags and the John Lennon lyrics. Specifically as to the Tibetan prayer flags, the teacher in question testified that she was ignorant of the precise religious content of the flags and displayed them to work in tandem with lessons she had prepared about exploration of Mount Everest. Thus, they had a valid secular purpose, and there was no evidence that anyone was motivated to so much as investigate, much less adopt, the Buddhist religion because of seeing them.
The trial court blew the call. A teacher is not in a free speech forum; the teacher is working on the public dime and the public therefore gets to control his speech to a significant degree. Not completely. And it has to do things evenhandedly, fairly, and for a good reason.
But the Ninth Circuit blew the call, too. Johnson is allowed to express his personal beliefs and the school created an environment in which there was non-curricular speech going on with the posters. There was something of an open forum created by that practice.
Where I think Johnson crossed the line was not his expression of a personal religious faith to his students, it was in the vehemence with which he portrayed it; it is easy to get the impression that Christians and in particular those who agreed with the blend of Christian faith and the particular interpretation of history colored by that faith that Johnson espoused would be somehow favored. Johnson endorsed not just Christianity but a particular flavor of it. This sort of thing has been called “bullying” in other contexts and while I don’t think that word is exactly right, it’s close enough for our purposes. I would certainly have hesitated to disputing with Johnson about the content of his posters had I been one of his students.
For me, the amount of time that Johnson had been doing this without complaint is irrelevant. But the fact that this was a math class is relevant. There is nothing even remotely math-related in the posters. Had Johnson been teaching civics or history, where discussion of the subject matter of the posters would have been more on point, I don’t have a problem with Johnson expressing his opinion on historical issues and the posters seem more tolerable.
Now, having seen that Johnson had crossed the line, the school was within its authority to act. 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. And both courts stretched credulity to reach the conclusions they did.
What’s the right answer? I think Johnson should have been required to tone the posters down in some way to eliminate the impression of an endorsement of religion, but allowed to keep up posters touching on the subject matter that interested him and which reasonably expressed his viewpoint. The ironic thing is, it seems that he and his principal were ontheir way to a productive discussion about reaching that exact solution when the lawsuit got filed.