Court upholds prohibition against teachers wearing political buttons in school

New York City teachers wanted to wear political buttons to class in this election year. But the Board of Education requires teachers to "maintain a posture of compelte neutrality with respect to all candidates." The City was asking for a First Amendment lawsuit. It got one.

The case is Weingarten v. Board of Education, 08 Civ. 8702 (LAK), 2008 WL 4620573 (S.D.N.Y. Oct. 17, 2008). The trial court resolved a preliminary injunction motion by reviewing the state of free speech in the public schools. As a general rule, teachers and students have First Amendment rights in school, but those rights are limited in light of the need for efficient public service. We call that the Tinker principle, named after a 1969 Supreme Court ruling which remains the starting point for free speech in public schools. But that was 40 years ago, and this doctrine has undergone many twists and turns, mostly in favor of school districts.

Judge Kaplan had to iron out conflicting rulings on this issue. In James v. Board of Education of the Town of Addison, 461 F.2d 566 (2d Cir. 1977), the Second Circuit held that, without a concrete showing that this activity would interfere with the educational process, a high school teacher could not be punished for wearing an anti-war armband to class. But that was 30 years ago, and the case law has tilted in the direction of school districts even further. In 1988, the Supreme Court held in Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) that public schools can censor school newspapers to ensure both that students are protected from inappropriate speech and that controversial speech is not attributed to the school.

James may have been the Second Circuit's high point for teacher speech. Judge Kaplan finds that its persuasive authority has been seriously undermined by later developments in the Supreme Court. While James made it more difficult for school officials to regulate speech, Judge Kaplan finds that, post-Hazelwood and other court rulings over the years, the question today is "whether the defendants' view that the opinions conveyed by teacher-worn political buttons 'might reasonably [be] perceive[d] to bear the school's imprimatur' or otherwise interfere with the accomplishment of defendants' public role."

Formulating the issue this way hurts the plaintiffs. Judge Kaplan finds that school officials reasonably believed that the political buttons would interfere with the educational process. The court defers to the district's expert authority on the effect these buttons would have on young and impressionable students. Since the challenged regulation does not discriminate on the basis of political messages and teachers have other ways to express support for political candidates (like wearing their buttons outside of school), the regulation represents a good faith effort by school officials about the impact of political buttons in school. For this reason, the prohibition against wearing political buttons to school is upheld.