Privacy Issues in the Workplace

In Johnson v. Poway Unified School District 576 the Ninth Circuit Court of Appeal held that a high school math teacher did not have a First Amendment right to place religious posters or otherwise “use his public position as a pulpit from which to preach his own views on the role of God” to the captive students in his mathematics classroom. The Poway Unified School District allowed teachers to place posters and other materials on the walls of their classrooms conveying messages completely of the individual teacher's choosing. Bradley Johnson, a math teacher, maintained in his classroom two banners, each approximately seven feet wide and two feet tall. One, striped in red, white and blue, contained the phrases: "In God We Trust," "One Nation Under God," "God Bless America," and "God Shed His Grace On Thee." A second banner quoted from the Declaration of Independence by stating "All Men Are Created Equal, They Are Endowed By Their Creator," and placed the word "Creator" in all uppercase letters. Johnson had taught at the school for 30 years. The first banner had been in his classroom for 25 years, and the second for 17 years. In 2007, the District, concerned about a violation of principles of separation of church and state ordered that Johnson remove the banners. Johnson sued alleging his First Amendment free speech rights had been violated. The Court of Appeal reversed the trial court holding that Johnson had no free speech claim. The Court held that for public high school teachers in this context, "forum analysis" must give way to the specific framework the U.S. Supreme Court has developed for public employee speech claims. That framework asks, among other things, whether the employee spoke as a private citizen rather than a public employee. An employee speaks as a public employee when the speech is made pursuant to "official duties." In those circumstances, there is no First Amendment free speech claim. The Court held that Johnson's banners constituted his speech as a public employee. The Court applied the following standard for making this determination for a teacher, in this particular case: "[B]ecause of the position of trust and authority they hold and the impressionable young minds with which they interact, teachers necessarily act as teachers for purposes of [an "official duties" analysis] when [they are] at school or a school function, in the general presence of students, in a capacity one might reasonably view as official." The Court determined that Johnson's banners were pursuant to his "official duties" under this standard: "An ordinary citizen could not have walked into Johnson's classroom and decorated the walls as he or she saw fit, any more than an ordinary citizen could demand that students remain in their seats and listen to whatever idiosyncratic perspective or sectarian viewpoints he or she wished to share." In Coomes v. Edmonds School District No. 15 577 , the Ninth Circuit held that school administrator/teacher’s complaints about a special education program were not protected speech. In that case, the employee, Coomes, was the manager of a school’s Emotional/Behavioral Disorders (“EBD”) program and the primary teacher for students in the program. She made a number of complaints about how the program was run, both up the chain to her supervisors and also to parents. The Ninth Circuit found that her speech was not protected as it was made as part of her employment responsibilities. Her speech to her supervisors was made pursuant to her role as an employee and was not protected. Her speech to parents, while outside of the chain of

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 167