Legal Commentary

A Rare First Amendment Victory for a Public School Teacher Complaining About Restrictions on In-School Speech

By Eugene Volokh

Generally a public school has broad authority over what teachers say in class. When they?re teaching, or counseling students, they are seen as speaking on behalf of the school, and the school has broad power to control its own speech. And schoolteachers generally have no constitutional right to put up materials of their own on the walls, since those are the school?s walls, for the school to dispose of as the administration pleases.

But Johnson v. Poway Unified School Dist., decided yesterday by the federal district court for the Southern District of California, is a rare exception: The judge concluded that the school district had created a designated public forum for teacher speech, by allowing teachers to put up pretty much any posters they please in their classrooms, including:

• a 35 to 40-foot long string of Tibetan prayer flags with writings in Sanskrit and images of
  Buddha.
• a large poster of John Lennon and the lyrics to the song ?Imagine?:
  

  Imagine there?s no Heaven, It?s easy if you try
  No hell below us, Above us only sky
  Imagine all the people, Living for today
  Imagine there?s no countries, It isn?t hard to do
  Nothing to kill or die for, And no religion, too
  Imagine all the people, Living life in peace
  You may say that I?m a dreamer, But I?m not the only one
  I hope that someday you?ll join us, And the world will be as one.

• a poster of Hindu leader, Mahatma Gandhi.
• a poster of Hindu leader, Mahatma Gandhi?s ?7 Social Sins?:
  

  Politics without principle
  Wealth without work
  Commerce without morality
  Pleasure without conscience
  Education without character
  Science without humanity
  Worship without sacrifice.

• a poster of Buddhist leader, the Dali [sic] Lama.
• a poster that says: ?The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality.?
• posters of Muslim minister, Malcolm X.
• a Greenpeace poster that says: ?Stop Global Warming.?
• posters of rock bands Nirvana, Bruce Springsteen, and the Beatles.
• posters of professional athletes and sports teams.
• a poster of the movie ?Monty Python?s Quest for the Holy Grail.?
• ?Day of Silence? posters.
• bumper stickers that say: ?Equal Rights Are Not Special Rights,? ?Dare to Think for Yourself,? and ?Celebrate Diversity.?
• a Libertarian Party poster.
• a poster with a large peace sign and the word ?peace? in several languages.
• a mock American flag with a peace sign replacing the 50 stars and appearing to be six feet wide and four feet tall.
• an anti-war poster that asks: ?How many Iraqi children did we kill today??
• a pro-defense poster of a Navy aircraft carrier that says: ?Life, Liberty and the Pursuit of All Who Threaten it? and appearing to be seven feet wide and four feet tall.
• posters of civil rights advocate Martin Luther King, Jr.
• a large poster that says: ?Zero Population Growth.?
• a large poster of an American flag with the motto: ?United We Stand.?
• a large poster of an American flag that says: ?...life, liberty, and the pursuit of happiness.?
• flags with the historical political motto: ?Don?t tread on me.?
• non-student artwork.
• life-sized cartoon characters.
• photographs and inspirational sayings.

Therefore, the school district couldn?t constitutionally exclude from this forum Bradley Johnson?s 7? x 2? banners, ?striped in red, white, and blue and set[ting] forth famous national phrases? ? on one, ?In God We Trust,? ?One Nation Under God,? ?God Bless America,? and ?God Shed His Grace On Thee,?? and on the other, ?All Men Are Created Equal, They Are Endowed By Their CREATOR.? The court concluded that such exclusion ? especially in light of the school?s allowing the Imagine lyrics, the Tibetan prayer flags with images of the Buddha, and Gandhi?s ?Hindu messages? (the court?s label) ? was impermissible viewpoint discrimination, as well as impermissible religious preference. Moreover, the court said, allowing Johnson?s message wouldn?t violate the Establishment Clause, because ?Any perceived endorsement of a single religion is dispelled by the fact that other teachers are also permitted to display other religious messages and anti-religious messages on classroom walls.?

I?m inclined to say that this is probably the correct result given what strikes me as the highly unusual policy of the school district, which probably does create a designated public forum for the teachers? own messages. The breadth of messages, including some that I imagine many people might find offensive and that the school itself wouldn?t endorse, strikes me as particularly telling of a designated public forum.

But if a school did not give its teachers such flexibility, and I expect that most high schools ? unlike colleges and universities ? indeed do not leave their teachers generally free to express their views on classroom walls, then the school would certainly be within its rights to make sure that only those messages that it endorses are placed on the walls. The only objection to that would be a possible Establishment Clause challenge, if the school-endorsed messages were seen as endorsing religion, or endorsing some religions over others (possible, if a school endorsed the Imagine lyrics but not Johnson?s message), and not a Free Speech Clause challenge.

Full post as published by The Volokh Conspiracy on February 26, 2010 (boomark / email).