Religious Proselytizing in the Classroom

2011 WL 4071974, 113 Emp. Prac. Cases (BNA) 358 (9th Cir. Sept. 13, 2011)

"A Teacher Has No Constitutional Right to Display Large Banners Proclaiming His Religious Convictions in His Classroom"

By Richard Fossey

Professor & Mike Moses Endowed Chair in Educational Administration, University of North Texas at Denton, TX

and

Robert LeBlanc 

Associate Professor of Education,University of St. Thomas at Houston, TX

In Johnson v. Poway Unified School District, 2011 WL 4071974, 113 Emp. Prac. Cases (BNA) 358 (9th Cir. Sept. 13, 2011), the Ninth Circuit considered whether a high school mathematics teacher has a First Amendment right to proclaim his religious and political convictions on two large banners in his classroom. Specifically, Bradley Johnson hung two banners--each about 7 feet by 2 feet--on his classroom’s walls. In large capital letters, the first banner proclaimed: “IN GOD WE TRUST”, “ONE NATION UNDER GOD”; and “GOD SHED HIS GRACE ON THEE.” The other banner stated, “All men are created equal, they are endowed by their CREATOR.” Id. at *1. As the court noted, each letter in the word “creator” was capitalized and was nearly double the size of the other text. Id.

Dawn Kastner, the school’s new principal, recalled walking into Johnson’s classroom, “and going, ‘Wow, these are really big.’” In Kastner’s opinion, Johnson’s signs promoted a particular religious viewpoint “that might make a student who didn’t share that viewpoint uncomfortable.” Id.

Kastner was not sure what she should do about Johnson’s banners. At a supervisor’s request, she took pictures of the signs, which were forwarded to an assistant superintendent in charge of legal affairs.

While awaiting a response from her superiors, Kastner talked with Johnson about the signs. “We talked about the possibility of putting the entire thing up in context,” Kastner recalled, “so if a phrase was from the Declaration of Independence, put the entire Declaration up.” Id. at *2. Kastner and Johnson also talked about creating smaller expressions of his views that could be placed around Johnson’s desk area.

Johnson was apparently not open to compromise “and refused either to remove his banners or display the more contextual version the school offered to provide.” Id. Johnson told Kastner that he had displayed the banners in one form or another since 1982. He considered his messages to be merely patriotic phrases that he had a right to display in his classroom.

In due course, the school administration ordered Johnson to take his banners down, and the school board approved this directive, referring to a school board policy requiring teachers to “[d]istinguish between teaching and advocacy, and refrain from using classroom teacher influence to promote partisan or sectarian views.” Id.

Johnson obeyed the school district’s order and took down his signs. He filed a lawsuit, however, claiming a violation of his First Amendment right to free speech, his right to equal protection under the Fourteenth Amendment, and the Establishment Clause.

A trial court ruled in Johnson’s favor, awarding him summary judgment, and ordering the school district not to interfere with Johnson’s future displays. In the trial court’s opinion, Poway had created a limited open forum for teacher speech in its classrooms and had impermissibly restricted Johnson’s speech based on his viewpoint. The court awarded Johnson almost a quarter of a million dollars in attorney fees. Apparently, the trial court was impressed by the fact that the school district allowed teachers to display various images and messages in their classrooms, including a poster of Malcolm X, Tibetan prayer flags, and a Mahatma Gandhi poster.

On appeal, a three-judge panel of the Ninth Circuit reversed. Although the appellate court issued a lengthy opinion, the essence of its views were expressed in the decision’s first two sentences: “We consider,” the court summarized, “whether a public school district infringes the First Amendment liberties of one of its teachers when it orders him not to use his public position as a pulpit from which to preach his own views about the role of God in our nation’s history to the captive students in his mathematics classroom. The answer is clear: it does not.” Id. at *1.

In the Ninth Circuit’s view, the trial court had erred when it failed to analyze Johnson’s banners under the Pickering balancing test (Pickering v. Board of Education, 391 U.S. 563 (1968)), which requires a court to balance a teacher’s right to speak as a citizen on a matter of public concern against the school’s interest in maintaining the efficiency of the workplace. Without question, the Ninth Circuit conceded, Johnson’s banners--with their religious messages--touched on matters of public concern. Nevertheless, Johnson was not communicating as a citizen when he displayed those banners in his classroom. Rather, he was communicating as an employee of Poway School District. Id. at *7.

More specifically, “Johnson hung his banners pursuant to a long-standing Poway Unified School District policy, practice, and custom of permitting teachers to decorate their classrooms subject to certain limitations and the satisfaction of the principal or a District administrator.” Id. at *9 (internal quotations omitted).

The Ninth Circuit rejected the trial court’s determination that Poway had created a limited open forum by allowing teachers to display various items in their classrooms. The school retained the authority to monitor these informal expressions to ensure that teachers did not propound views as employees that were contrary to the district’s own message. Id. at *12.

Moving on to Johnson’s Establishment Clause claim, the court disagreed with Johnson’s claim that other teachers were permitted to proclaim their religious views in their classroom displays. On the contrary, the court concluded that those displays were not primarily religious messages. The school district was obligated by the Establishment Clause to maintain neutrality toward religion and not take actions that would endorse religion. Poway’s purpose in barring Johnson’s signs was clearly secular, and no Establishment Clause violation occurred.

Finally, the Ninth Circuit quickly disposed of Johnson’s Equal Protection claim. “All the speech of which Johnson complains belongs to the government,” the court pointed out, “and the government has the right to speak for itself.” Id. at *17 (internal quotations omitted). Since Johnson had no constitutional right to speak for the government, the court concluded, “he could not have suffered an equal protection violation.” Id.

Conclusion

The Ninth Circuit’s opinion in Johnson v. Poway Unified School District is not surprising. The court had previously ruled that a teacher had no constitutional right to post anti-homosexual messages on a school bulletin board in contravention of official school board policy promoting tolerance regarding sexual orientation. Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th Cir. 2000). And other circuit courts have ruled that college instructors may not go “off message” and use their classrooms to propound their religious views. Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991); Piggee v. Carl Sandburg College, 464 F.3d 667 (7th Cir. 2006).

In Johnson, the Ninth Circuit made clear that schools may permit teachers to display items of personal expression in their classrooms without creating a limited open forum. Specific to the facts before it, the court concluded that a school district may permit teachers to display a Mahatma Gandhi poster or a Malcolm X poster in their classrooms without obligating the district to allow a teacher to hang a large classroom banner proclaiming a patently religious message.