Teacher Political Expression in the Classroom: Where Are We?

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?

ATRs and formal observations: Where is Weingarten on this issue?

by Julie Woodward

The administrators at my school are for the first time going to be giving ATRs formal observations. I don't know if this is a new Klein directive or a local issue, but I do question everything about subjecting ATRs acting as per diem subs to formal observations when the case is loaded against them in so many ways.

What is the Union's position on this issue, since Weingarten has been so consistently non-proactive on fighting off many of the abuses against all excessed teachers. Her exceptionally milquetoast stance on all things ATR started with signing onto the Excessing changes in the contract in the first place. As TJC says: "Under the new contract, an excessed teacher, regardless of how many years of seniority, loses the guaranteed right to a teaching program."

That's unforgiveable right there, since teaching is just as much our vocation and career as much as it has ever been our "job." But Weingarten's unsubstantive and utterly indefensible inaction also includes: not being outraged that senior teachers with many degrees are treated condescendingly with a pamphlet on how to prepare a resume, not demanding that Human Resources send excessed people on interviews, not demanding that ATRs who have applied to vacancies dozens of times are told why they haven't been granted an interview in each case, not following up on DA resolutions to determine abuses in the system with regard to increases in LIFs and U-ratings, and not bothering to meet with ATRs at the start of a new year, especially with such a huge increase in the number of them.

Speaking for myself and for many others in our union, we need to know where the Union comes down on formal observations for ATRs, another potential weapon in the campaign to get these people out of the system. I know that some ATRs are paid by central and therefore costing the school nothing, but some are paid for by the principal and it is not in any supervisor's interest to have them on their books when they took such a grave step to get them out of the school by excessing them.


Any formal observation of an ATR acting as a per diem sub is prejudicial on many counts.

First of all, these people are generally not teaching their own subject, much less their own lesson. They are teaching someone else's, which they may or may not agree with, feel comfortable with (everyone has his own style), or have the equipment in the room to complete. Too many times an absent teacher assigns something that the kids cannot do: either it has not been taught well, or there aren't any reference materials or textbooks in the room for quick research. Much of the time, in fact, there are no lesson plans at all, or vague ones, such as "Let them finish their projects," without any instructions as to what the project is or how it is to be executed. On what grounds can you evaluate the ATR in this scenario with any fairness and equity?

Secondly, per diem ATRs are facing particular sets of students for the first time, since each class is different. In MSS and HSS, intruder students have to be weeded out quite frequently, since hallwalkers and cutters are slick and students are not traveling from room to room as a class under the supervision of a teacher. (There are actually some techniques for handling this, but you don't know them when you start subbing.) By the time teachers with regular programs get their formal observation, they know the kids and they've developed relationships with them. On what grounds can you evaluate the ATR in this scenario with any fairness and equity?

Thirdly, the contract calls for a pre-observation conference, which can only be scheduled when the ATR gets the schedule in the morning of a particular day. Even then, should the AP sit down with him for the pre-conference and arrange an observation later that same day, there might not be enough time for the ATR to prepare. As it is, he is already "winging" it, and now he has the additional pressure of performing without the same preparation time frame as other teachers have. On what grounds can you evaluate the ATR in this scenario with any fairness and equity?

Fourthly, the whole purpose of observations according to the contract is to "give each staff member choices and a role in his/her professional growth." I don't see how any formal observation of a coverage you are just winging can lead to the teacher's "professional growth." Even the UFT's "Know Your Rights: Classroom Observations" says that the purpose of these observations "is not punitive." A formal observation for the ATR is in essence punitive. The post-observation conference cannot help the teacher improve any skills other than those required of a substitute, namely, to take attendance, do a lesson if one is left and wing it if it isn't, maintain order in the room, and get the intruders out. None of us have Masters degrees in per-diem subbing, or even much experience in it. The formal observation is therefore only another vehicle the principal has in his arsenal to remove you from the school.

Lastly, Article 2 of the contract, Fair Practices, says that the Board cannot discriminate against anyone on the basis of a "handicapping condition," which really is what this ATR business is. All the four points made above really are handicapping condition, and if someone tells me that's not the kind of handicapping Article 2 is referring to, I say Let's grieve it and make sure it does include these things. Equitability is part of contractual law, and ATRs put through formal observations with these things stacked against them are in no way being treated equitably. Let's take it all the way to arbitration if need be, and get it done.

There's also Art. 22.A., which says under the Definition (2) that a grievance shall mean that a teacher "has been treated unfairly or inequitably by reason of any act or condition which is contrary to established policy or practice governing or affecting employees." [There's an exception to this statement which I'd have to think about for a while and consult with others on, but I think, as in the case of those LIFs that the arbitrator just sorted out, this needs arbitration to sort out as well.] The question is: do I file the grievance against Art.22.A before the observation, when the outcome is still unknown, or after the observation if I get a U on it. I feel strongly it should be filed before the observation, because I don't want to be, or look as if I am, contesting the U when I am contesting the whole thing in the first place.

In any case, the formal observation should never be used in the ATR's final rating for the year, since the act of "teaching a regular program in your license to stable group of kids" is one thing and "covering an absent teacher" is a different thing altogether. The job description itself varies from school to school: in some schools they're happy if the kids stay in the room and don't mess around. In others they want more teaching. Apart from all this, the circumstances for each class the ATR covers is wildly unpredictable and the teacher should be not judged in some things that are bound to go on in that room.


It is not so much that I am worried about the quality of the way I handle a coverage. It is that in this climate of trying to get rid of ATRs, the Union has been doing precious little to protect us from the obvious weapon of a U-observation. The U a principal may give an ATR on any of these formal observations may be nowhere near the truth of their skills in normal teaching circumstances. What is blatant and true is that they will be looking for any number of ways to get ATRs out of their buildings when they have excessed them and still have to pay for them.

I call on Randi Weingarten to tell us her position on which specific things she thinks the ATR can be held accountable for. That would be the fair and equitable thing to do, to know these things before the pre-conference, not after it's all over. After all, every teacher in a regular position knows pretty well what the ground rules for observations are. The ATRs are in treading through some very swampy turf and the union to this point has given them no help at all.

And I will go one step further: ATRs should be able to take any UFT member of his or her choice with them to all three parts of this formal procedures, the pre- and post-obs. conferences and the observation itself. I don't trust principals these days to self-restrict and be "judicious." ATRs remain in teacher purgatory, contractually at this point set up to be picked off and pushed out of the system one by one.

Draft Resolution on the Disappearing Black and Latino/a Educator

Whereas the UFT supports the goal of increased hiring of Black, Latino and Asian educators as role models, as sound pedagogy, to advance labor solidarity and as a step to a democratic society, and

Whereas NYC employs a relatively low percentage of teachers of color city wide when compared with the community served and in this respect lags behind other large metropolitan areas, and

Whereas statistics offered below indicate a significant decline in the numbers of new Black and Latino educators hired since 2002, and

Whereas over three thousand uncertified UFT members, disproportionately Black and Latino educators, many with advanced degrees and years of dedicated service in hard to staff schools, were laid off in 2003 based on NYS certification exams that have no empirical data supporting their connection to student achievement, and

Whereas school closings have contributed to a disproportionate percentage of senior Black and Latina/o educators being consigned to the Absent Teacher Reserve, and

Whereas a disproportionate number of Black and Latino teachers have been sent to the ‘rubber rooms, and

Whereas the data obtained thus far indicates that the new teacher and administrator cohorts formed by the DOE under the direct control of Mayor Bloomberg are in effect, reversing progress towards a racially inclusive pedagogical staff in the NYC public schools, therefore,

Be It Resolved

That the UFT shall, as directed by President Weingarten, convene a public inquiry with a month to; 1) draw out the matters of fact as may be obtained, noting any obstacles, and 2) identify corrective measures, initiatives and changes in policy from top to bottom that may be enacted to increase the percentage of teachers of color in NYC public schools inclusive of suggestions for recruitment, hiring, certification, training and retention of well qualified educators, and

Be It Further Resolved

That the President shall report back such findings and proposals to the membership through the NY Teacher, to the Delegate Assembly, NYSUT, The Municipal Labor Committee, the NYC Central Labor Council, city wide parent organizations, civil rights organizations, the City Council, the Deputy Mayor for Education and the NYS Education Department before

January 2009 and on this basis shall engage the membership and parents in a dialogue, seeking consensus for affirmative action on these proposals in all appropriate venues.

NEW YORK CITY SCHOOL YEAR TEACHER ETHNICITY

Years	Indian	Asian	Black	Hispanic	White	Unknown
1990-91	0.3%	3.2%	16.%	11.9%	49.5%	19.1%
1991-92	0.1%	3.2%	16.0%	15.3%	58.4%	6.9%
1992-93	0.3%	2.9%	17.9%	15.1%	59.6%	4.2%
1993-94	0.4%	3.1%	18.4%	13.9%	59.6%	4.5%
1994-95	0.3%	3.2%	23.4%	18.4%	53.9%	0.8%
1995-96	0.3%	3.1%	22.9%	18.4%	54.1%	1.3%
1996-97	0.3%	3.4%	19.0%	14.4%	60.3%	2.6%
1997-98	0.4%	3.8%	20.1%	15.3%	56.7%	3.7%
1998-99	0.2%	3.8%	22.1%	15.2%	57.5%	1.1%
1999-00	0.2%	4.4%	24.8%	16.4%	53.8%	0.5%
2000-01	0.2%	4.2%	25.5%	16.3%	53.3%	0.4%
2001-02	0.2%	4.9%	27.2%	14.3%	53.3%	0.2%
2002-03	0.2%	5.6%	20.1%	12.7%	61.1%	0.3%
2003-04	0.2%	7.2%	16.7%	10.6%	65.0%	0.3%
2004-05	0.2%	8.3%	16.0%	11.1%	63.3%	1.2%
2005-06	0.3%	7.2%	14.5%	11.7%	65.0%	1.3%
2006-07*	0.3%	6.1%	14.1%	11.7%	65.5%	2.3%

**New Hires includes teachers who were hired between 8/25 through 10/31 of each year. ** Data on the 2006-07 New Hires is current as of 8.22.2006

Statistics from Samuel Anderson's Blog at:
http://blackeducator.blogspot.com/search?updated-min=2006-01-01T00%3A00%3A00-05%3A00&updated-max=2007-01-01T00%3A00%3A00-05%3A00&max-results=18