Johnson v. Poway Shows Why Garcetti Doesn't Work for Schools
Justin Bathon on Monday, September 15, 2008 at 10:15AM 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.
Reader Comments (3)
I haven't had a chance to read the opinion, so maybe I'm missing something. But isn't there an easy out here: reversing based on viewpoint discrimination? Even accepting Garcetti's application (and I agree with you that this is poor law as applied to schools), the district cannot restrict "Judeo-Christian" speech but allow "Buddhist" speech. It sounds like the judge cited these facts in arguing for the creation of a limited open forum (an argument that would be dicey even pre-Garcetti). But the open forum and Tinker arguments (and even the Garcetti discussion) become mere window dressing if the district engaged in viewpoint discrimination. Again, am I missing something? Is the viewpoint discrimination evidence just really weak?
Kevin, that was certainly part of the decision, but seemed sort of tangential. The judge seemed to have made up his mind on the expression issue and even talked about viewpoint discrimination in the context of expression in the whole open forum context. The judge returned to Establishment Clause issues later in the decision and again brought up viewpoint discrimination, but seemed to care less about that issue. I think you have a good point that this could clearly be a religious viewpoint discrimination case, but I do think the lawyers for the teacher were not willing to give up the purely historical nature of these sayings by going only down the religion road. I think the judge made his decision viewing these sayings as historical expression, not religious expression. But, that is just my feeling, it it hard to know for sure why that was not a bigger issue. The fact that expression dominated the case, though, certainly makes it more interesting for us.
Justin, would you be willing to clarify two things for us?
1. WHY you think these messages are patriotic rather than religious in nature, and
2. WHY you think public school teachers should be able to express themselves in ways contrary to their employer's wishes (and, perhaps, Constitutional obligations) while working for said governmental employer (in other words, why should teachers have the right to stand apart from their employer as government employees when most other government employees don't have that right?).
If I'm reading you correctly above, you seem to believe these two things? If so, it would be helpful to hear more of your thinking on this. As you probably can tell, I'm a bit skeptical... =)