One-Sided Censorship Defeated
Catholic Legal Center Wins Classroom Case for Protestant Teacher
BY Steve Weatherbe
March 28-April 10, 2010 Issue | Posted 3/22/10 at 12:00 PM
SAN DIEGO — A public school district is hoping the court that just upheld a reference to God in the Pledge of Allegiance will agree that a teacher has no right to display classroom banners referring to the Almighty.
The Poway School District school board in San Diego voted March 8 to appeal a federal district judge’s ruling that school officials violated the constitutional rights of a high school math teacher when they ordered him to take down the banners.
The district court Feb. 25 allowed Bradley Johnson to put back on his classroom walls two large posters bearing statements about God.
A public school teacher for 30 years, Johnson for more than 20 years has hung his 7-foot-by-2-foot banners in his classroom at Westview High School in San Diego bearing the phrases: “In God We Trust,” “One Nation Under God,” “God Shed His Grace on Thee” and “God Bless America.”
Johnson also cites the Declaration of Independence: “All Men Are Created Equal,” “They Are Endowed by Their Creator.”
One of those messages may have been acceptable, the school district says, but all of them together are overwhelmingly Judeo-Christian.
When the school district ordered him to take them down in 2007, his principal explained to him, according to the ruling: “If an Islamic student walks into your classroom and sees all of these phrases ... they may feel like, ‘Wow, I’m not welcome,’ or, ‘I’m not gonna fit in this classroom.’ And they may feel bad.”
There was no Islamic student — just another teacher who, according to Robert Muise, chief trial counsel of the Ann Arbor, Mich.-based Thomas More Law Center, may have resented Johnson’s prominence at Westview.
Johnson complied, but he also took the district to court claiming his free speech rights had been violated.
U.S. District Judge Roger Benitez agreed. In a frequently biting, 32-page ruling, Benitez wrote, “By squelching only Johnson’s patriotic and religious classroom banners, while permitting other diverse religious and anti-religious classroom displays, the school district does a disservice to the students of Westview High School, and the federal and state constitutions do not permit this one-sided censorship.”
The school district says it will appeal the judgment to the U.S. Court of Appeals for the 9th Circuit. “We think the judge was wrong, and we expect to get his judgment overturned in the 9th Circuit,” Poway’s lawyer, Jack Sleeth, told the Register.
A three-judge panel of the 9th Circuit court ruled Feb. 25 that the part of the Pledge of Allegiance referring to “one nation under God” does not violate the First Amendment’s establishment clause (story, page one).
Jammed With Teachers’ Opinions
What clearly made it easy for Johnson was all the evidence the Thomas More Law Center’s investigators were able to amass showing that Poway classrooms were jammed with the private opinions of their teachers.
“This case was factually unique,” Muise said. While school districts can restrict the speech of teachers when, on balance, it interferes with teaching, the Poway district has an express policy of encouraging teachers to display their opinions in the classrooms.
There were posters of religious leaders such as Nation of Islam leader Malcolm X, a 30-foot-long banner of Buddhist prayers, a picture of the Dalai Lama, a homosexual-rights poster and a poster bearing the lyrics to John Lennon’s song “Imagine,” which begins “Imagine there’s no heaven,” and continues “nothing to live or die for, and no religion, too.”
There were anti-war posters and messages supporting the U.S. military.
Benitez found this to be overwhelming evidence that Johnson’s free speech had been violated by religious discrimination.
Noting that one banner urged students to “Celebrate Diversity,” Benitez acidly observed: “Ironically, while teachers in the Poway Unified School District encourage students to celebrate diversity and value thinking for one’s self, defendants apparently fear their students are incapable of dealing with diverse viewpoints that include God’s place in American history and culture … that God places prominently in our nation’s history.”
Poway’s lawyer Sleeth says he is confident the 9th Circuit appellate court will overturn Benitez’ ruling. Too much was made by the judge of the examples from other classrooms in the district, Sleeth said.
The 30-foot string of Tibetan prayer flags was, for example, in Sanskrit, and the image of “a squatting fat man” found in places on it was tiny and could be Buddha but could be someone else, said Sleeth.
The district also argued to the court that Buddhism is a philosophy and not a religion.
Benitez called this argument a “transparent pretext,” noting that there were 100 million adherents in China alone, making it one of the largest “organized religions” in the world.
The district also argued that it had been unaware of the posters until the 2007 complaint. But the judge found this “patently untenable” given the district’s own emphasis on the prominence of Johnson’s displays and their presence for two decades.
Likewise, few students, perhaps, would recognize Malcolm X, Sleeth said, or be moved to convert by any of the other images with religious connotations. However, the overwhelmingly religious messaging in Johnson’s classroom might lead students to believe the school district itself endorsed these messages; and this would violate the establishment clause of the state and federal constitutions. “The school district does not endorse religions,” said Sleeth firmly.
The district believes that it should have the right and power to decide which messages cross the line into proselytizing and which do not, said Sleeth. “We want to do the right thing, and we want a simple rule to help us do it.”
District Violated Constitution
But the Thomas More Law Center turned the district’s argument against itself, persuading Judge Benitez that its acceptance of all messaging other than Johnson’s theist slogans was the real constitutional violation. Stated the judge: “Defendants’ endorsement of Buddhist, Hindu and anti-religious speech by some teachers while silencing the Judeo-Christian speech of Johnson violates the establishment clause.”
Muise said Johnson put his posters back up as soon as he heard the ruling and was cheered for his efforts by his students. But the district’s appeal may include a request for a ruling to take them down again pending a judgment on the appeal, which Muise said could take several years. So the center will oppose such a court order and in the meantime bill the district for $250,000 in legal fees, which the judge has awarded in principle.
Steve Weatherbe writes from
Victoria, British Columbia.
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