9th Circuit goes too far by using Garcetti to silence teacher

Friday, September 16, 2011

A recent federal appeals court decision prohibiting a San Diego math teacher from displaying large banners in his classroom with messages such as “In God We Trust” and “God Shed His Grace on Thee” shows the reach of the U.S. Supreme Court’s decision in Garcetti v. Ceballos and the government-speech doctrine.

Bradley Johnson — who teaches calculus at Westview High School and has taught in the Poway Unified School District for more than 30 years — displayed the banners without incident for many years. However, things began to change when a new principal came on board in 2006. In 2007, Principal Dawn Kastner expressed concerns that the banners would alienate religious minorities and ordered the banners’ removal.

Johnson complied, but then filed suit in federal court. He alleged that the school had violated the First Amendment’s free-speech and establishment clauses. A federal district court ruled in favor of Johnson in 2010, finding the school district had engaged in viewpoint discrimination in ordering that Johnson’s banners be removed.

On Sept. 13, a three-judge panel of the 9th U.S. Circuit Court of Appeals reversed the lower court in Johnson v. Poway Unified School District.

The 9th Circuit relied in large part on Garcetti v. Ceballos (2006) — in which the Supreme Court held that public employees have no free-speech rights when they speak as public employees instead of as citizens. Garcetti is one of several cases in which the Court in recent years has expanded the government-speech doctrine — that says when speech is classified as government speech, rather than private speech, the courts basically don’t have to address the First Amendment issue.

The 9th Circuit reasoned that Johnson “spoke as an employee, not a citizen” through speech on his classroom walls. The unanimous panel quoted another recent Supreme Court decision — Pleasant Grove v. Summum (2009) — for the principle that “the Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”


The decision in Poway means that public school teachers have no freedom to decorate their walls with the expression of their choice. Granted, there may be legitimate First Amendment reasons — say the establishment clause — to prohibit a public school teacher from emblazoning his classroom walls with religious messages. But the reasoning behind the decision in Poway dramatically limits the free-speech rights of all teachers in the 9th Circuit. Under the reasoning of this decision, it is within the school’s power to censor what goes on a teacher’s walls.

After such rulings, many teachers might question whether they retain any First Amendment rights at all when they enter the school building.

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