Last week, a three-judge panel of the Ninth Circuit Court of Appeals ruled unanimously that a California school district did not violate a teacher’s free speech rights by ordering him to remove posters bearing the national motto, among other phrases.
In late 2006, Bradley Johnson, a San Diego County math teacher and sponsor of the school’s Christian club, received complaints regarding two large banners displaying phrases including: “IN GOD WE TRUST,” “ONE NATION UNDER GOD,” “GOD BLESS AMERICA,” “GOD SHED HIS GRACE ON THEE,” and “All men are created equal, they are endowed by their CREATOR.” The school’s principal ordered Johnson to remove the signs – a demand Johnson believed infringed upon his free speech rights.
The Ninth Circuit disagreed. The ruling has drawn attention because the objectionable posters all contained quotes taken from the national motto, the National Anthem, and the Declaration of Independence. From a legal standpoint, however, the ruling is largely uncontroversial.
Why didn’t the school district’s action violate Johnson’s free speech rights?
Johnson is a government employee and, as such, faces restrictions regarding what he can say in the classroom. As the Ninth Circuit noted, “Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.”
As a public school teacher, Johnson serves as the government’s mouthpiece: he is the Government’s voice in the classroom. Accordingly, the Government gets a say in what Johnson gets to say – at least within the scope of his employment. The fact that Johnson may have had some freedom to choose what he displayed in his classroom did not change the reality that the Government – not Johnson – was responsible for the speech that appeared on his classroom’s walls.
Did the school district violate the Establishment Clause by ordering Johnson to take down his posters?
The Establishment Clause requires “government neutrality” with respect to religion. Stated simply, the Government may not “place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general.” Nor may it “be overtly hostile to religion.” Johnson argued that the school district’s directive to remove his posters evinced hostility toward religion and was thus unconstitutional.
The Ninth Circuit disagreed. Legal precedent holds that governmental actions taken to avoid potential Establishment Clause violations do not represent hostility toward religion. Since a reasonable observer might have construed Johnson’s posters – with their repeated references to God and use of disproportionately large font to spell out words like “CREATOR” – as religious endorsements, the school district’s actions were not unconstitutional.
What about other purportedly religious displays in the school?
On appeal, Johnson argued that other teachers at his school decorated their classrooms with other forms of religious iconography, including Tibetan prayer flags and a Malcolm X poster. By ordering him to remove his posters but not the other religious symbols present at the school, officials were sending a message of hostility toward Christianity.
Again, the Ninth Circuit disagreed. The fact that these other displays may have had some religious content does not mean that they ran afoul of the First Amendment. Rather, “[e]ach [display] would be violative [of the Constitution] only if used to endorse or inhibit religion.” Because depictions of Malcolm X and Tibetan prayer flags do not send the same kind of overtly religious message as the word “God” written repeatedly in all caps across a poster, their presence in the school was unobjectionable.