Tuesday, September 13, 2011

Johnson v. Poway Unified School Dist. (9th Cir. - Sept. 13, 2011)

This may well be the best opinion I've ever read from Judge Tallman.

It's really, really good.  Regardless of whether you agree with it -- and it involves a controversial issue -- it's incredibly coherent, comprehensive and tight.  It's written extremely, extremely well.  It's an extremely good primer on the issue.  Well done.  Very.

I'll not tell you how the case comes out.  You should read the opinion for yourself.  But here's the issue:

A public school teacher down here in Poway (a suburb of San Diego), Bradley Johnson, teaches mathematics (at Westview High School).  He hangs two large banners -- each about seven feet wide and two feet tall -- on the wall of his classroom.  One has red, white, and blue stripes and states in large block type: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and, “GOD SHED HIS GRACE ON THEE.”  The other states: “All men are created equal, they are endowed by their CREATOR.”  You can look at pictures of the banners in the appendix to the opinion if you'd like.  He's the faculty sponsor of the Christian Club, but says that his banners are purely patriotic, with no religious purpose.

The school district tells him to take down the banners but is free to put up these things in context if he'd like (e.g., to put the entire Declaration of Independence on his wall).  Johnson refuses, saying that he has a protected First Amendment right to say what he wants on these issues, whereas the school district contends that he's a government employee so his speech rights are limited.  Johnson ultimately complies with the order and takes down the banners, but promptly sues.  He also visits other classrooms shortly after filing suit and photographs other teachers' walls that he believes display sectarian viewpoints, including Tibetan prayer flags; a John Lennon poster with “Imagine” lyrics; a Mahatma Gandhi poster; a poster of Gandhi’s “7 Social Sins”; a Dalai Lama poster; a poster that says, “The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality”; and a poster of Malcolm X.

Who should win?

It's far from a no-brainer.  The district judge, Judge Benitez, granted summary judgment to one side.  The Ninth Circuit reverses -- unanimously -- and orders the granting of summary judgment to the other side.  So clearly reasonable minds both can and do differ.

Plus, check out the lineup of the amici.  You can easily (and accurately) guess which side the Thomas More Law Center is going to be on, which side the National School Boards Association supports, and where Americans United for Separation of Church and state stands.  But what about the ACLU?  Which side do you think they're going to come down on?

All good questions.  Which make the opinion only even more worth reading.