High court misses chance to clarify contours of teacher speech

Thursday, March 29, 2012

The U.S. Supreme Court missed a golden opportunity to clear up the continuing confusion over the free-speech rights of public school teachers when it declined March 26 to review Johnson v. Poway Unified School District. The case involved a San Diego-area teacher who was ordered to remove from his classroom walls religious banners that he had displayed for 25 years.

Last year, the 9th U.S. Circuit Court of Appeals ruled that officials at Westview High School in the Poway district could order math teacher Bradley Johnson to remove his banners proclaiming such messages as, “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 9th Circuit reasoned that Johnson’s banners were job-related speech within the meaning of the Supreme Court’s all-encompassing public-employee speech decision Garcetti v. Ceballos (2006). In that decision, the Court ruled that when public employees engage in official, job-duty speech they have no First Amendment protection.

In their petition for high court review, Johnson’s attorneys from the Thomas More Law Center pointed out that school officials allowed all sorts of posters and banners to be displayed on classroom walls, including Tibetan prayer flags featuring images of the Buddha, posters of rock bands and musicians, and banners about gay rights, global warming and other controversial issues. In other words, the attorneys argued, school officials had engaged in viewpoint discrimination by censoring Johnson’s personal religious expression.

Johnson’s attorneys also noted that the lower courts are not consistent in how they evaluate public school teacher-speech cases. Whether or not we agree with a teacher’s hanging religious messages in his classroom, his attorneys have a valid point about the uncertainty of teacher speech.

Sometimes courts use the Garcetti precedent. Sometimes they proceed directly to balancing the teacher’s free-speech right to speak on matters of public concern against the school’s interests in a disruptive-free workplace under the Court’s earlier public-employee decision, Pickering v. Board of Education (1968).  Other courts evaluate teacher-speech cases under the school-sponsored student-speech case Hazelwood School District v. Kuhlmeier (1988).  Still other courts employ a forum analysis, examining whether school officials — as Johnson’s attorneys argued — created a limited public forum on classroom walls, allowing teachers to engage in a wide variety of speech.

The sheer number of different legal tests and cases used to evaluate public school teacher-speech cases gave the Supreme Court a chance to clarify a muddled area of law. Instead, the justices exercised their discretionary jurisdiction and avoided the mess.

By avoiding the mess, the Court left teachers’ free-speech rights imperiled and in utter disarray.

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