Gotham Gazette

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Teaching and Electioneering Don't Mix, Court Finds

electioneering in class
from photo (cc) flcker/baklein62

Public school teachers have constitutional rights to wear political buttons while in school, according to the United Federation of Teachers. But not according to the United States District Court in Manhattan.

In Weingarten v. Board of Education, a case first brought in 2008, a presidential election year, the plaintiffs, United Federation of Teachers and several individual teachers, claimed that the school chancellor's regulations banning campaign buttons and distribution of political materials among teachers in Board of Education buildings, i.e., schools, violated the teachers' free speech rights under the federal and state constitutions. (The case refers to the Board of Education throughout -- not the Department of Education.)

The chancellor's regulations provided that "while on duty or in contact with students, all school personnel should maintain a posture of complete neutrality with respect to all candidates." The regulation also banned the distribution, posting, of displaying of "material supporting any candidate, candidates, slate of candidates, or political organizations/committees" in any school building. While there were exceptions for political items of interest that might appear in teachers' newsletters, for example, the regulation generally prevented teachers from placing political material in colleagues' mailboxes or on teachers’ bulletin boards in teachers' meeting places.

Banning Buttons

When the case was originally brought in the U.S. District Court for the Southern District of New York Judge Lewis A. Kaplan issued a temporary order, which stopped the city from banning candidate-related political material on teachers' union bulletin boards in areas closed to students, and also from placing such materials in staff mailboxes. But then -- and now in the latest decision -- the court denied the teachers' attempt to lift the ban on the wearing of political buttons. The court found a "clear relationship" between the ban on political buttons and the Board of Education's "legitimate pedagogical interests in avoiding the inevitable misperceptions among a minority of students that the views reflected by a teacher's political button are endorsed by the school district and also that the entanglement of their public educational mission with partisan politics."

In light of the court's 2008 interim order, the Board of Education revised its regulation to allow dissemination of the relevant materials solely among teachers. At the same time, it strengthened the section on political buttons to say, "While on duty or in contact with students, school personnel may not wear buttons, pins, articles of clothing or any other items advocating a candidate, candidates, slate of candidates or political organization/committee."

Chancellor Joel Klein's position was that "displays of political partisanship by teachers in the schools, particularly in the classroom, to a captive audience of students, are inconsistent with our educational mission. When teachers wear political paraphernalia in an environment free of partisan politician influence . . . . Partisan political activity by staff in the presence of students . . . sends the message that the view expressed carries the support of the school system."

To counter that position, the plaintiffs retained a professor of educational psychology. David Moshman of the University of Nebraska would testify if a trial were held, about "the capacity of adolescents, specifically high school age students, to understand the nature of free speech and official free speech not representing the curriculum viewpoint of the school."

The court gave little weight however to Moshman's statements, partly for technical reasons, but also on the merits. In papers submitted on behalf of the teachers' union, Moshman theorized that young children might be unable to distinguish between a teacher's opinions and the school's, and so the regulation might be reasonable in an elementary school. But for middle school students, he thought a teacher's explanation about personal free speech would be sufficient. And once in high school, he claimed, students "spontaneously understand that a teacher's [political] button is not part of the curriculum." Most of these teenagers, Moshman said, would understand the concept of free speech and a teacher's right to express political preferences even without an explanation. But Moshman did concede that a small percent of high school students might misunderstand.

Free Speech in Schools

Kaplan found plaintiffs' contentions lacked merit and dismissed the suit without it ever going to trial. In his written opinion, he said that policy makers overseeing "public schools are constitutionality permitted, within reason, to regulate the speech of teachers in the classroom for legitimate pedagogical reasons." The court then concluded that the appearance of political buttons worn by teachers, "may improperly influence children and impinge on the rights of students to learn in an environment free of partisan political influence."

The judge found that the regulation, when carried out in a professional manner and in good faith, is not a "covert attempt to favor one viewpoint over another." After more than a year of litigation, he declared the regulations to be constitutional.

Emily Jane Goodman is a New York State Supreme Court justice

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