In a case that requires careful navigation between the Free Speech Clause and the Establishment Clause of the First Amendment, the ACLU of San Diego & Imperial Counties filed an amicus brief with the Ninth Circuit Court of Appeals this week, arguing that the trial court erred in compelling the Poway Unified School District to allow a teacher to re-display banners that endorse religion (Johnson v. Poway Unified School District). The amicus brief strikes a balance between the Free Speech Clause and the Establishment Clause, declining to sacrifice one for the other. The Free Speech Clause protects academic freedom of teachers in the classroom, within appropriate limits. Those limits include the Establishment Clause, which requires school districts to prevent teachers from endorsing religion in the classroom.
The amicus brief notes that in the unique facts of this case, the Poway Unified School District has allowed high school teachers "virtually unfettered control" over what materials they display in their classrooms. The result has been a “cacophony” of different, sometimes contradictory, messages on a wide variety of topics. Collectively, these posted materials do not represent “government speech,” contrary to the school district’s position, which would eliminate all free speech rights for teachers in the classroom.
“As the courts have long recognized, education is enhanced by an open exchange of ideas. If the district were to declare all classroom speech ‘government speech,’ any word or thought uttered by a teacher ultimately would be under centralized control,” said David Blair-Loy, legal director of the ACLU of San Diego & Imperial Counties. “At the same time, however, school districts must ensure that teachers do not engage in speech that endorses religion, because reasonable persons perceive that what teachers say – and post in their classrooms – is approved by the government.”
In this case, the school district directed teacher Bradley Johnson to remove two banners from his classroom because the district was concerned they conveyed a Judeo-Christian viewpoint. One banner has red, white, and blue stripes, with four phrases in large block letters: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and “GOD SHED HIS GRACE ON THEE.” The other banner reads, in large font: “All Men Are Created Equal, They Are Endowed By Their CREATOR.”
Johnson’s banners raise serious Establishment Clause concerns, given their heavy and repeated emphasis on “God” and “CREATOR.” Both emphasize the religious—-rather than historical—-references of the quoted texts, without noting that the Constitution contains no reference to “God” or “Creator” and indeed prohibits establishment of religion by the government. The First Amendment mandates government neutrality not only between particular faiths, but between religion and non-religion. The school district therefore properly directed Johnson to remove the banners from his classroom, because it had legitimate concerns the banners presented serious Establishment Clause problems.
But the district has apparently allowed another teacher to continue posting a 35-40 foot string of Tibetan prayer flags in her classroom, without any persuasive justification that the prayer flags do not raise equally serious Establishment Clause concerns. The district’s actions unfortunately give the appearance of preferring one religion over another, in violation of a core principle of the First Amendment. The amicus brief calls on the Court to instruct the district to ensure compliance with the Establishment Clause without regard to the nature of the religious viewpoint being expressed.
“The district has to avoid the perception that it is endorsing religion, but it must do so without preferring one religion over another,” said Blair-Loy. “The district should be just as concerned that the prayer flags convey a message favoring Tibetan Buddhism as they are that Mr. Johnson’s banners express a Judeo-Christian message.” It would not solve the Establishment Clause problems to allow both the banners and prayer flags to remain, because the government must remain neutral between religion and non-religion.
The amicus brief thus asks the Court to affirm the trial court’s judgment in favor of Johnson, but only on the narrow ground that the school district improperly preferred one religious viewpoint over another. Such a ruling would preserve important principles of academic freedom but also respect the compelling interest in preventing violations of the Establishment Clause in the public schools.
