Update: Appeal of Poway Unified’s God Banner Ban Filed with U.S. Supreme Court

Updated 5:30 p.m. Tuesday with statements from the school district and the ACLU of San Diego & Imperial Counties.

A Michigan-based public interest law firm has filed an appeal to the U.S. Supreme Court objecting to a lower court’s decision allowing the Poway Unified School District to prevent a math teacher from displaying classroom banners with messages about God.

The ruling is an unconstitutional restriction on free speech in a public forum because other types of speech—such as another teacher’s poster with the lyrics to John Lennon's Imagine—are allowed, argues The Thomas More Law Center in its appeal filed Jan. 19 and announced Tuesday.

“What you really had was an egregious demonstration of a double standard,” Richard Thompson, president of the law center and chief counsel, told Patch. “The double standard was used again to censor Christian speech.

“There is this agenda that is out there supported by the ACLU, supported by Americans United for the Separation of Church and State, that is trying to cleanse the public square from any kind of Christian message and they’re using the courts to do it.”

In September, the 9th U.S. Circuit Court of Appeals overturned a 2010 decision by a federal judge in San Diego that said the district had violated the First Amendment rights of Westview High School math teacher Bradley Johnson in 2007 by ordering him to take down the banners. They bore messages such as “In God We Trust” and “All Men Are Created Equal/ They Are Endowed By Their CREATOR.”

In September 2010, the ACLU of San Diego and Imperial Counties filed a brief with the 9th Circuit Court supporting the district’s decision to have Johnson take the banners down, saying, “The banners’ repeated emphasis on ‘God’ and the ‘CREATOR’ creates a serious risk that reasonable persons would believe the District is endorsing religion.”

September’s ruling found that the district’s ban upheld the Establishment Cause prohibiting endorsement of religion.

The Thomas More Law Center—which describes itself as a “not-for-profit public interest law firm dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values, and the sanctity of human life”—argues that this is a cherry-picked ban on Judeo-Christian speech. Another teacher displayed Tibetan flags with no recourse, and Lennon’s Imagine promotes an anti-religious point of view but was allowed, showing a bias against Christian speech, the center argues.

But this isn't about clamping down on Christian messaging, said David Loy, legal director for the ACLU of San Diego & Imperial Counties which believes the banners and the Tibetan prayer flags should have been taken down.

"It's our position that both of those were unconstitutional," Loy said. "Public school teachers should not be in the business of promoting religion in the classroom."

The large size of Johnson's banners and that they had been there so long—particularly in a math class and not in a philosophy or literature class—could lead a "reasonable" student to believe that they indicated an endorsement of religion by the school district, Loy said.

Johnson, in a 2007 lawsuit against the district, said the banners are not a means to proselytize but represent historical messaging about the country’s origins. Thompson, too, said the banners are just a means of educating students about the role of Christianity in the nation’s development. Taking the banners down and removing Christian messaging from the classroom runs counter to that, he said.

“It really is a way of indoctrinating our students into believing that our nation was founded on principles other than Christianity,” Thompson said.

The school district, in a statement from its attorneys, said it would file a written opposition to the appeal with the U.S. Supreme Court.

"We believe that the Ninth Circuit properly followed the Constitution and Supreme Court precedent in ensuring that all students have a proper environment for learning," attorney Jack M. Sleeth Jr., of Stutz Artiano Shinoff & Holtz, said in a statement. "The Ninth Circuit correctly found that teachers have no First Amendment right to espouse their personal religious beliefs in the classroom."

The issue about the banners in the classroom of Johnson, who had been with the district for three decades, arose when a fellow teacher questioned the school’s principal about them in late 2006. Johnson, according to court files, said he had had the banners up in some way since 1982. In January 2007, district officials had Johnson take the banners down and he soon filed suit against the district and school board, which approved the decision to take down the banners.

In February 2010, Johnson won his suit, arguing that the district had violated his First Amendment rights, but in September 2011 that decision was overturned on appeal. Poway Unified Superintendent John Collins, in a statement at the time, said the decision to overturn Johnson’s victory was “very consistent with the legal and educational rationale the District has used since the very beginning of this case. We are pleased with the outcome after more than four years in the courts.”

Whether the U.S. Supreme Court will hear the case has not been determined. The Court received more than 7,800 requests in the term running from October 2010 to October 2011, but only agreed to hear about 1 percent of the cases.