Sunday, October 19, 2008

Teachers’ Political Button Case: A True (Unintended) Win for Union Democracy

The last thing that Randi Weingarten thought when she decided to challenge the Chancellor's Regulation dealing with political expression in the classroom was that the court would provide additional legal precedent for teacher access to staff mailboxes.

As much of the media has reported Judge Lewis Kaplan has denied the UFT's request for a preliminary injunction seeking the overturn of the Chancellor's Regulation dealing with political expression in the classroom and elsewhere in schools. The DOE sought to prohibit all forms of political expression in the schools including leafleting mailboxes and posting political literature on Union bulletin boards. As predicted in this Blog Judge Kaplan saw no merit in the Union's position on campaign buttons in the classroom but found the constitutional challenge to the mailbox and bulletin board prohibition compelling and ordered that the DOE not prohibit access to those areas without student access. The Court held,

"Plaintiffs' motion for a preliminary injunction is granted to the extent that defendants are hereby enjoined, pending the determination of this action, from enforcing the Regulation to the extent that it prohibits (I) posting materials containing candidate-related political content on UFT bulletin boards located in areas closed to students and (2) placing materials containing candidate related political content in staff mailboxes. It is denied in all other respects."

For many years teacher and opposition access to staff mailboxes has enjoyed legal protection but has often been interfered with by misguided principals and Unity Chapter Leaders. Despite clear precedent in Baizerman and Chancellor Directives opposition caucuses have been harassed and prevented from distributing their political literature in staff mailboxes. While things were better during union election times there clearly was no legal difference between distributing literature in either period.

In the recent case, Weingarten v. Board of Education (full decision) Judge Kaplan decided that mailbox access was constitutionally protected, even on the weak record that was before him. The Judge rejected the DOE's argument that mailbox access would interfere with school business and held that teacher 1st Amendment rights outweighed the alleged speculation of disruption. The Court reasoned,

"The Regulation, as construed by the Chancellor, permits the distribution through teachers' school mailboxes of partisan political literature so long as that literature is an integral part of regularly published union newsletters or newspapers. I fail to see a permissible basis for distinguishing between political advocacy in union newsletters and in other campaign literature.

"Furthermore, the rationale offered by defendants - "leafleting" through the mailboxes might overwhelm a school's ability to review and distribute mail - does not appear on the record before me to be a reasonable justification for a blanket bar on the union delivering candidate-related materials in mailboxes that are not open to students."

We are confident that the 1st Amendment applies with equal force to opposition caucus members. We call upon Randi and her crack legal team to continue the fight for our precious rights no matter how unintended they may be!


Anonymous said...

Good job Jeff. Can we work with Norman Seigel on this to add our own brief?

ed notes online said...

While this decision allows caucuses to go into schools to use mailboxes, it is still a large burden on small opposition groups to cover massive amounts of ground.

The longterm solution to battling Unity is to have someone on the ground in each building to not only get materials out to people but to advocate for the alternate positions, battle the Unity goons and during election times to get people to vote.

Now obviously there's a long way to go. A start is to get people to handle their own school and get materials into neighboring schools and to their circle of contacts.

Contact ICE to when you are ready to take action.

Let's all start by supporting the ATR rally the UFT will supposedly hold. I think they knew full well something was going to happen without them if they don't try to coopt.

Anonymous said...


Clearly the judge's decision refers to the "union" not the political caucuses within the union nor other entities.

Your stretching it!!!

Why do you think we don't get circulars for all the neighborhood restaurants, supermarkets and departents stores in our mailboxes?

It's not an unfettered right for anyone to have access to the mailboxes in schools.

The decision reads

"The Regulation, as construed by the Chancellor, permits the distribution through teachers' school mailboxes of partisan political literature so long as that literature is an integral part of REGULARLY (emphasis added) published UNION (emphasis added)newsletters or newspapers.

Jeff Kaufman said...

Union members and employees are to be treated like advertisements? That's an outrage and shows the commenter's clear bias.

Please re-read the decision. The sentence you quote was specifically rejected by Judge Kaplan. The DOE regulation allowed only political literature as part of newspapers to be placed in the mailboxes which was SPECIFICALLY rejected.

The decision is not limited to the union as individuals were plaintiffs as well including our good friend David Peccararo.

Anonymous said...

Board policy has always allowed rival factions within the union to use mailboxes. This reaffirms a right we fought long and hard for and really always had.

Anonymous said...

UFT President Randi Weingarten issued the following statement in response to the ruling:
The ruling in this case is a victory affirming that teachers in schools do indeed have First Amendment rights. We are grateful that the court ruled so quickly in backing the United Federation of Teachers on two of the three issues that led to our filing a federal lawsuit, namely teachers’ constitutional right to communicate with peers about important political matters via literature in school mailboxes and campaign posters on UFT bulletin boards in areas off-limits to students. This ensures that teachers can continue to maintain healthy peer-to-peer communication on important educational and political matters.

On the issue of teachers wearing political buttons in schools, we had already proposed a compromise to the Department of Education in which we would ask our members to not wear them in classrooms. Although the court ruled against us on that issue, it acknowledged that it was as a close call. Given that the overall decision preserves our members’ legal rights, we will wait until after Election Day to decide whether to pursue the matter further.

This exercise in democracy shows that teachers know how to balance their dual roles as objective educators and citizens freely expressing themselves, and we at the UFT are willing to fight for our members’ right to do so.

Anonymous said...

Jeff- If this ends now, are our rights to the mailboxes upheld?

ed notes online said...

Even the UFT doesn't dispute rights of teachers in the school to use the boxes though some Unity chapter leaders try to stop it. Now the bulletin board is included.

The contention is whether ICE can send people to schools to put lit in the boxes since Unity can use almost all the chapter leaders to get their info in boxes while ICE and TJC need to have their people cover multiple schools.

The UFT has contended that we can only do this mass distribution every 3 years during the 3 month election cycle. They tried to stop us during the 2005 mass distribution of lit to oppose the contract.

This ruling opens the door to going to court to enforce that right all the time. If principal or Unity try to stop it we should contact Norman Seigel and ask for santions against them. Are civil suits possible so they can be hurt in the pocket book?