Friday, October 24, 2008

Court strikes down prohibition against political leafleting in teacher mailboxes

In Weingarten v. Board of Education, 08 Civ. 8702 (LAK), 2008 WL 4620573 (S.D.N.Y. Oct. 17, 2008), Judge Kaplan upheld the City's prohibition against teachers wearing political buttons to class. I wrote about that part of the case here. While that ruling generated news coverage, another part of the opinion was ignored, even though the teachers won that battle.

The Board of Education enforced a rule that allowed the union to distribute literature in teachers' mailboxes, but political literature could not be similarly distributed. The same rule applied to teacher bulletin boards. While courts have held that teacher mailboxes are not traditional public forums in that they do not have to accommodate unbridled free speech, even nonpublic forums cannot discriminate without any rational basis at all. Judge Kaplan cannot discern any rational basis for allowing union speech but disallowing political speech in teacher mailboxes and bulletin boards. This is especially the case where students have no opportunity to view the bulletin boards, which only service the teachers. So unlike the rule prohibiting teachers from wearing political buttons to class, there can be no argument that the bulletin board rule would confuse or unduly influence young student minds.

Judge Kaplan therefore enjoins enforcement of these speech restrictive rules. This is one of the rare cases where the plaintiff in a First Amendment case prevails in challenging speech restrictions in nonpublic forums. Even in this context, where the government has significant leeway in regulating speech, it must articulate a reasonable basis for the speech distinctions. In failing to do so, the Board of Education loses.

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