Gay rights and freedom of speech: Daniel Shinoff
is struggling to figure out studen
t rights

Right-wingers and left-wingers have been united in defense of Tyler
Chase Harper.

I must confess that I have struggled with the problem of how much
free speech to allow students who want to condemn other students.  
At first I agreed with Daniel Shinoff that T-shirts condemning gay
students should not be allowed.

But then I realized that freedom of speech exists for a good reason.  
If young Mr. Tyler Chase Harper wants to discuss his sincerely-held
religious beliefs about other people's sexual orientation, why not let
him?  Of course, he has to be respectful to his fellow students.  And
they, too, have a right to discuss the subject.

Schools should not hide from important social issues and
facts of life.

But ubiquitous school attorney Daniel
Shinoff seems to have an even bigger
problem with this whole issue.
 

His problem is that he wants schools to
have power to restrict speech WITHOUT
having the responsibility to keep students
safe.

Shinoff and the Poway Unifed School Board have contradicted
themselves about their obligations to physically protect students  
and to protect their right to free speech at the same time.  

In the
Megan Donovan and Joseph Ramelli case, which involved
brutal harassment of two students, the district and its lawyers
claimed  that the school could not be expected to protect gay
students from physical abuse.

But in the Harper case, the same lawyers and school district argued
that they had a right to restrict freedom of speech because it could
conceivably lead to harassment of gay students.

Grossmont Union High School District

Daniel Shinoff has recently been working with the ACLU to sort out a
similar problem at Grossmont Union High School District.

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2008
Johnson v. PUSD
Amended Complaint

Calif. teacher can pursue free-speech
claim against district

First Amendment Center Online by The
Associated Press,
09.11.08

SAN DIEGO — A federal judge will allow a
Christian math teacher to proceed with his
free-speech lawsuit against his Southern
California school district.

Westview High School teacher Bradley
Johnson filed his federal lawsuit
against the Poway Unified School
District
last year after he was told to
remove classroom banners that include the
words "God" and "Creator.” School officials
told Bradley the banners promoted a
"Judeo-Christian" viewpoint.

U.S. District Judge Roger T. Benitez’s
23-page ruling in Johnson v. Poway United
School District means that Johnson may
proceed with his lawsuit against the school
district.

“By squelching Johnson’s Judeo-Christian
religious viewpoint while promoting or
permitting Buddhist, Islamic, and Tibetan
religious viewpoints, Defendants’ acts
clearly unjustifiably abridge Johnson’s
constitutional free speech rights, ” Benitez
wrote in the Sept. 4 ruling.

The seven-foot banners include "In God We
Trust" and "All Men Are Created Equal,
They Are Endowed By Their Creator."

Benitez refused the district’s request to
dismiss the case, saying the banners
provide "healthy exposure" to diverse ideas.

“By squelching only Johnson’s patriotic
expression, the school district does a
disservice to the students of Westview High
School and the federal and state
constitutions do not permit such one-sided
censorship,” the judge wrote.
Los Angeles Times
By Tony Perry
September 11, 2008


SAN DIEGO -- A high school mathematics
teacher has won a round in federal court in
his fight to put "God Bless America" and
"One Nation Under God" banners back in
his classroom.

Brad Johnson, a teacher at Westview
High in San Diego County, had the
banners up in his classroom for two
decades, but last year the principal
ordered him to take them down, saying
they were an impermissible attempt to
make a Judeo-Christian statement to
his students.


Johnson sued in federal court. Poway
Unified School District officials sought to
have the lawsuit dismissed, arguing that, as
a public employee, Johnson had only limited
1st Amendment rights while on the job and
that the principal had authority over what
was put on classroom walls.

In a blistering 23-page decision, U.S. District
Judge Roger T. Benitez rejected the
district's motion as legally faulty and blasted
its "brash" attempt to take down the
banners. The jurist noted that the district
allowed other teachers to put up posters
with Buddhist and Islamic messages,
posters of rock bands including Nirvana and
the Clash, and Tibetan prayer rugs.

Johnson's banners, Benitez wrote, were
patriotic expressions deeply rooted in
American history.


"By squelching only Johnson's patriotic
expression, the school district does a
disservice to the students of Westview High
School, and the federal and state
constitutions do not permit such one-sided
censorship," Benitez wrote in a ruling issued
last week.

The school district's attorney, Jack M.
Sleeth Jr., said Wednesday that the school
board would meet in closed session next
week to discuss whether to appeal the
ruling, settle the case or advance to trial. He
said the principal made her decision after
receiving a complaint about the banners.

"It's an extremely complex issue," Sleeth
said. "It's not as simple as the teacher loves
the Lord and we tried to stop him. He was
hired to teach mathematics. What do these
banners have to do with mathematics?"

Sleeth said the district offered to let the
banners remain if Johnson would provide
material showing the historical context of the
messages on them. But he refused, Sleeth
said.

Johnson is seeking to restore the banners,
which include "In God We Trust" and "God
Shed His Grace on Thee," and to be
compensated for $30,000 in legal fees.

The lawsuit was filed by the Michigan-based
Thomas More Law Center, which supports
cases involving religious issues nationwide.
The center is also representing a Marine
lieutenant colonel facing court-martial at
Camp Pendleton for allegedly not
investigating a possible war crime by troops
in Haditha, Iraq.

Richard Thompson, president and chief
counsel for the law center, suggested that
the Poway district should settle rather than
advance to trial.

"Many public schools exhibit a knee-jerk
hostility toward Christianity," he said.

In his ruling, Benitez noted that Johnson
had never referred to the banners while
teaching.
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Related site:
Dan Shinoff & violence
Johnson v. Poway, a case in which the
ACLU supported a teacher who draped
huge banners with religious
admonitions across his classroom. The
ACLU's victory in the district court was
overturned by the U.S. Ninth Circuit
Court of Appeal: "We thus reverse and
remand with instructions that the
district court vacate its grant of
injunctive and declaratory relief, as
well as its award of damages, and
enter summary judgment in favor of
Poway and its officials on all claims.
Johnson shall bear all costs. Fed. R.
App. P. 39(a)(3)."

Attorneys involved were:

Daniel R. Shinoff, Jack M. Sleeth, Jr.
(argued), Paul V. Carelli, IV, Stutz
Artiano Shinoff & Holtz, APC, San
Diego, California, for
defendants-appellants Poway Unified
School District, et al

David Blair-Loy, ACLU Foundation of
San Diego and Imperial Counties, San
Diego, California, for Amicus Curiae
American Civil Liberties Union of San
Diego and Imperial Counties in
Support of plaintiff (Johnson)

Apparently California Teachers
Association didn't take part in this case.
Education Reform Report
Education Reform Report
Johnson v. Poway
Ninth Circuit overturns
victory of teacher posting
religious banners in
classroom
Johnson v. Poway Unified School Dist.
(9th Cir. - Sept. 13, 2011)
California Appellate Report
Shawn Martin

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.