Today, the American Freedom Law Center filed its reply brief in the U.S. Supreme Court in support of its petition for a writ of certiorari (legalese for a request that the Court review the case) in Johnson v. Poway Unified School District. [You can read that brief here]. This case should outrage all Americans who value our First Amendment right to freedom of speech.
For 25 years without complaint, Brad Johnson, a respected math teacher in the Poway Unified School District, displayed on his classroom walls two patriotic banners. The first banner, which is red, white, and blue, contains the following historical slogans: “In God We Trust,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace on Thee.” The second banner contains a quote from the Declaration of Independence.
In January 2007, the school district ordered Johnson to remove his banners because they allegedly conveyed an impermissible “Judeo-Christian” viewpoint. One school official told him that the banners must come down because they might offend a Muslim student. Johnson obeyed the order and promptly filed a civil rights lawsuit.
Johnson’s banners were displayed pursuant to a long-standing school district policy that allows teachers to display personal, non-curricular posters, banners, and flags on their classroom walls. In fact, pursuant to this policy, school officials allow the display of gay rights banners, global warming posters, and a 40-foot string of Tibetan prayer flags, among many others . . . but not Johnson’s patriotic banners.
In February 2010, a federal district court judge in California ruled in favor of Johnson and ordered the school district to allow the banners. His decision is a must read [you can read it here]. The school district appealed that decision to the U.S. Court of Appeals for the Ninth Circuit. As you may recall, this is the same circuit court that ruled that the pledge of allegiance was unconstitutional—so you know how that turned out.
We are now asking the U.S. Supreme Court to take up this important case. [You can read more details about this case here].
Based on the Ninth Circuit’s ruling, which is now the controlling law of Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington, school officials possess the plenary authority to make viewpoint-based restrictions on the personal, non-curricular speech of teachers. For example, school officials now have the authority to permit teachers to adorn their classroom walls with campaign posters promoting their favorite Democrat candidates for office (watch for your Obama posters, which will soon be arriving at a school district near you) or view on their favorite political or social issue, while simultaneously prohibiting any teacher from posting political campaign posters promoting a Republican candidate (or the contrary view of the permitted political or social issue).
At the end of the day, however, the Ninth Circuit’s decision is squarely at odds with Supreme Court prcedent. As the Supreme Court stated long ago in West Virginia State Board of Education v. Barnette, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” In direct contravention, California school officials now have the judicially-sanctioned authority to prescribe what “shall be orthodox” in matters of opinion by permitting teachers to express personal, non-curricular messages that promote certain favored ideologies, religions, and partisan viewpoints on controversial political and social issues, while censoring certain disfavored viewpoints, such as Johnson’s “Judeo-Christian” viewpoint. As a result, that “fixed star” in our constitutional constellation has been obscured and an official orthodoxy prescribed.
Indeed, in Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court warned that “[i]n our system, state-operated schools may not be enclaves of totalitarianism.” Apparently, no one has told this to California or the Ninth Circuit.