Labor & Employment Law

Rare teacher First Amendment victory

Rare teacher First Amendment victory

Source: Adjunct Law Prof Blog; Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Johnson v. Poway Unified School District, ___F. Supp. 2d___(C.D. Cal. Sept. 4, 2008), demonstrates that although difficult, teachers could win First Amendment type cases against school districts.

The court held that a high school teacher?s free speech right was violated when he was ordered to remove banners because of concern over their religion content. The banners were displayed in his classroom for years and had such phrases as ?In God We Trust,? ?One Nation Under God,? ?God Bless America,? and ?God Shed His Grace On Thee,? and ?All Men Are Created Equal, They Are Endowed By Their Creator.? The school allowed personal messages to be displayed and materials such as rock band posters, posters of professional athletes, posters with Buddhist and Islamic messages, and Tibetan prayer flags.

Although no one ever had complained about the banners, the teacher's principal ordered him to remove them. The teacher in turn, brought a First Amendment case. The court analyzed Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968). It rejected the school district's claim that the teacher had no free speech claim because he is a government employee. The court found this argument ?squarely at odds? with the Supreme Court?s statement in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), that free speech rights ?applied in light of the special characteristics of the school environment? are available to teachers and students.? The court specifically rejected the District's reliance on Garcetti?s holding that an employer restriction on speech made as part of the employee?s official duties raises no constitutional issues, finding instead that the Supreme Court explicitly did not extend its holding in Garcetti to the public school environment. In Garcetti, the Court said, ?We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.?

The court also concluded that Pickering?s balancing test would not be useful, because applying that test would require departing ?from the First Amendment forum analysis described in Hazelwood [School District v. Kuhlmeier, 484 U.S. 260 (1988)] and applied by the Ninth Circuit Court of Appeals in school cases.? The court likewise rejected Connick, because the teacher?s ?classroom banners in this case do not fit into the category of speech critical of his employer.?

The court held that the teacher's speech claim was subject to the ?forum analysis? often used to evaluate free speech cases. The court viewed the classroom walls as constituting a ?limited public forum? because the district ?intentionally opened its property to expressive conduct by its faculty.? Having created a limited public forum, the school could not exclude ?speech where its distinction is not reasonable in light of the purposes served by the forum, nor may the government discriminate against speech on the basis of its viewpoint.? The court held that the school impermissibly restricted the teacher's speech based on viewpoint, rather than based on a content-neutral reason.

This is a lengthy decision and an important one to watch.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on October 06, 2008 (boomark / email).