The recent filing of a lawsuit by the UFT against the DOE to invalidate a decade old Chancellor's Regulation as it applies to the wearing of campaign buttons by teachers in the classroom and posting campaign literature on Union bulletin boards has raised a legal issue that our Union might not want answered. While we support, unequivocally, teacher free speech rights, it is far from clear that, after looking at the relevant case law, it is a slam-dunk.
No teacher of US History or Government can teach these courses without at least mentioning Tinker v. Des Moines, where we start.
The Tinker case involved students who were disciplined for wearing armbands protesting the Vietnam war. The Supreme Court held that "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years." (emphasis supplied).
Some lawyers have long argued that Tinker was an anomaly and that much of the post-Tinker litigation has carved out so many exceptions that they believe that Tinker, if brought today, would not survive. One of the first major blows to Tinker was Hazelwood v. Kuhlmeier where school administrators were given free reign to censor student newspapers.
Courts routinely used Hazelwood to uphold the suppression of teacher classroom expression holding that the classroom has a "captive student audience." Clearly teachers have a responsibility to present administration directed curriculum and cannot use their positions to prostletyze to students. These issues normally come to court when a teacher is disciplined for expressing their political beliefs in class or when they refuse to follow school mandated curriculum.
While Hazelwood posed some logical problems when applied to teachers the Supreme Court made matters worse in the recent case of Garcetti v. Ceballos.
Garcetti, decided in 2006, holds that a public employee engaging in communication pursuant to carrying out his or her official duties does not engage in speech for purposes of the First Amendment. Thus, a teacher may not be protected in expressing their political views if done during class time.
The few cases that have used Garcetti in teacher expression cases have not been helpful for our First Amendment rights. One case from Michigan upheld the dismissal of a teacher who wore a t-shirt complaining of the lack of a contract. The Court's rationale was that the t-shirt caused "disharmony" in the workplace. (Montle v. Westwood Heights Sch. Dist., 437 F. Supp. 2d 652, 653-54 (E.D. Mich. 2006).
In another disturbing case the Seventh Circuit Court of Appeals found no protection for an Indiana teacher who expressed her view against the war in Iraq in a class discussing current events and was dismissed. (Mayer v. Monroe County, 474 F.3d 477 (7th Cir., 2007).
In a case closer to home and a little more hopeful, Judge Wexler of New York's Federal District Court, Eastern District, allowed a case to go to trial when a Massapequa teacher claimed her political views, which came in conflict with the principal, forced her resignation.
Jillian Caruso was an active member of the Republican party and was, during the 2004 Presidential election, a supporter of President George Bush. She alleged that she spoke with her class about her support of the President. She further alleged that her car had bumper stickers supporting the President and that she was known to have spoken on talk radio shows as to that support.
Mrs. Becker-Seddio, the principal of the school in which Caruso taught, is married to Frank Seddio. Mr. Seddio was alleged to be a liberal assemblyman in Brooklyn, New York. Caruso claimed that Principal Becker-Seddio displayed a photograph in her office taken with Hillary Clinton.
Caruso alleged that during the Fall of 2004, she hung the official White House photograph of George Bush in her classroom. She further stated that she was forced to remove that photograph and, shortly thereafter, forced to resign from her teaching position.
The school district countered that it was Caruso's teacher performance that caused her resignation and not her political beliefs. Additionally they argued that the incident caused a disruption in the school.
Judge Wexler, in holding that the case can go to trial, held that these were factual issues that could only be decided by a jury. (Caruso v. Massapequa Union Free School Dist., 478 F.Supp.2d 377 (E.D.N.Y. 2007).
The UFT press release and reporting of the filing of the lawsuit mentions that the Chancellor's Regulation has been unenforced and there has been "no problem" with campaign buttons or posters on Union bulletin boards in the past. Do they think for one minute that the failure to enforce a Chancellor's Regulation waives its future enforcement? I don't think so.
Perhaps they believe that they will escape Garcetti and Hazelwood scrutiny since there has been no reported disruptions in the school as a result of the campaigning. While this will, I predict, allow bulletin board campaigning, it will do little to persuade any except the most progressive court that the campaign buttons don't have the "potential of disruption" a hurdle to overcome in our post-Garcetti world.
By the way, has anyone seen my Nader button?