Disruptive teacher protest not protected under First Amendment

To draw attention to the prolonged contract negotiations with their school district employers, teachers on Long Island staged a day-long protest by displaying picketing signs from their cars, parked where parents were dropping off their children. Because of the way the teacher-protesters had positioned themselves, the students had to be dropped off in the middle of the street instead of at curbside. The teachers were disciplined for this, and the case makes it way to the State Court of Appeals.

The case is Santer v. Board of Education of East Meadow School District, decided on May 6. The Court starts off by holding that the teachers did in fact engage in protected speech under the First Amendment. Peaceful picketing is expressive activity, and the teachers were advocating a matter of public concern, not simply their private grievances. But that does not end the analysis.

Public employees have speech rights, but those rights are balanced against the government employer's needs. If the speech is too disruptive, then the employer can discipline the employees. We call that Pickering balancing, named after a Supreme Court decision from 1968. The Court sums up its holding:

The interests the District asserts in this case are legitimate: ensuring the safety of its students and maintaining orderly operations at Woodland. The District argues that the evidence adduced at the hearings showed that the parking demonstration created dangerous traffic conditions in front of the school that could have injured a student and that caused actual disruption to the school's operations. This evidence, the District maintains, was sufficient to justify its discipline of petitioners, and it was not required to prove, as the Appellate Division decisions suggest, that a student was actually injured for the Pickering balance to tip in the District's favor. We agree.

The protesters parked their cars intending to block the student drop-off point. That created a risk to student safety. While the parking was entirely legal, that "does not outbalance the evidence of disruption."

Some interesting concurring and dissenting opinions. Judge Smith says it was not even free speech. He writes, "I am troubled by the implication that intentionally disruptive and dangerous conduct can, if it is designed for the purpose of calling attention to the actor's message, qualify for First Amendment protection." Judge Rivera (joined by Chief Justice Lippmann) says it was free speech but that Pickering balancing tips in the teachers' favor and that they should win the case. She writes:

The record shows that petitioners and the other teachers' cars were legally parked; any member of the public could lawfully park on Wenwood Drive during the same time and in the same spots where petitioners were parked. The curb cuts were open and clear for pedestrian crossing. As a matter of course, student drop-off occurs on both sides of Wenwood Drive, requiring students dropped off across the street from the school to negotiate traffic in crossing the street. The school administrators did not intervene to help students or request that the teachers move their cars at any time during the morning demonstration. Only several minutes after traffic congestion formed did the administrators call the police and then in order to assist with the traffic jam. Even after calling the police, administrators did not take action to reduce any obstruction to the students' drop-off. Nonetheless, no students were injured the morning of the demonstration.