Education Law

Johnson v. Poway Shows Why Garcetti Doesn't Work for Schools

Of all the teacher expression cases I have read so far, this is one of the best examples of why the   Garcetti  doctrine  doesn't work for schools. Let me just start with this: (1) I personally think the teacher should be allowed to keep the banners, but (2) under the existing legal framework it is hard to see how this case was decided correctly. 

I am not going to go into the details of the case ( Mark Walsh has them ), but the basic facts are that a teacher had those patriotic sayings that include the word God in them (God bless America, In God we Trust, etc. ...  Picture ) on several banners in his classroom. The school principal asked him to take them down and the teacher refused. Now, you should know there were other teachers in the school with sayings on banners that could also be construed as religious so there was some practice of allowing teachers freedom to display personal messages on the walls of their classroom.

The judge in the case stressed that the teacher has a free expression right in the classroom and that the banners were not hung in his official capacity as a school employee. Really? .... I got to disagree. 

The judge starts by citing   Tinker   so that should clue us in that he is not going to buy into this  Garcetti  stuff. The judge then went on to recite the entire teacher expression Supreme Court history pre- Garcetti  and then said, "Garcetti by its own terms does not extend to the public school setting" and basically just threw  Garcetti  and all the case law on teacher expression published subsequently out the window. The problem is that  Garcetti  does exist and it has been pretty unanimously interpreted to apply to schools, so it is pretty hard to justify the judge's actions in not considering that case at all. 

Had  Garcetti  been considered, which I am sure it will be at the appellate level when this case is overturned, it is hard to see how the teacher wins. If the basic principle is that the school should have control over its official messages as articulated by teachers, it is hard to see how banners are not construed as within the scope of employment and related to the school's message. Within the  Garcetti  era, this is a pretty cut and dry case in favor of the school. 

But, this case is an excellent example of just how ridiculous the  Garcetti  doctrine can be when applied to schools. The very reason that we value teachers is for their uniqueness and their own personal thoughts that they bring to the classroom, yet this case is severely curtailing what teachers are allowed to say. Public education is not a business and teachers are not at-will employees. When teachers show their own personality and even when they criticize a school, that can make the school stronger. The judge in this case felt that tension and probably felt that  Garcetti  is bad for schools, but that still doesn't excuse his actions in disregarding what is pretty clearly binding precedent.

Keep an eye on this one. The higher this case gets, the better, because there is no way that conservative members of Supreme Court are going to take away those banners so they will be forced to clarify their stance in  Garcetti . Here is hoping the 9th Circuit affirms this case and the Supreme Court takes it.  

Full post as published by Edjurist on September 15, 2008 (boomark / email).