A Federal Judge Holds that Prohibiting Teachers In Public Schools From Wearing Partisan Political Buttons Does Not Violate the First Amendment: The Ruling's Reasoning and Why It's Wrong

By JULIE HILDEN
Monday, Oct. 27, 2008

On October 17, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York ruled that public school teachers do not have a First Amendment right to wear political buttons while on school property.

In this column, I will argue that the decision was wrong - but it was wrong in part because wrongheaded Supreme Court precedent led the rightly well-respected Judge Kaplan into error.

I'll also contrast the issues here with those raised by voters' wearing political buttons in polling places - a hot-button issue in Election 2008, and one that I discussed in an earlier column this month.

The Parties, the Board of Education Rules, and the Judge's Decision

The suit before Judge Kaplan was brought by teachers' unions against New York City's Board of Education. The unions sought a preliminary injunction from Judge Kaplan prohibiting the Board from enforcing rules against teachers' doing the following while in Board of Education Buildings: wearing political buttons, posting political materials regarding candidates on union bulletin boards, and placing political flyers in staff mailboxes.

These rules served a larger mandate, according to the Board: the mandate that teachers must assume "a posture of complete neutrality with respect to all candidates" while on duty or "in contact with students."

In order to receive a preliminary injunction, a party must show irreparable injury and a likelihood of success on the merits. Here, Judge Kaplan found irreparable injury -following First Amendment precedents that hold that it is an injury to lose First Amendment rights even for a limited time or in a limited place.

But Judge Kaplan also found that on the merits, plaintiffs would likely lose - except in the contexts where their speech was essentially addressed to teachers, not students: the union bulletin boards and staff mailboxes. On the political buttons issue, Judge Kaplan held, the lawsuit was likely to fail.

The Supreme Court's Key Precedent on Public School Speech - and How Judge Kaplan Overread It

In reaching the conclusion that the teachers' unions would lose on the merits, Judge Kaplan invoked a Supreme Court precedent that treats public-school teachers more like puppets than like people for First Amendment purposes.

The precedent is Hazelwood School District v. Kuhlmeier, which allowed school board censorship of a student newspaper on the ground that its articles, though written by students, all somehow bore the school's imprimatur. The Court's decision recognized broad Board authority over not only students' but also teachers' speech. It also approved Board control over speech that could reasonably be attributed to the school - instead of, or in addition to, the individual person who uttered or authored it.

Compelled to follow Hazelwood, Judge Kaplan concluded that there was, indeed, a risk that students might think that, by wearing political buttons, teachers were speaking on the school's behalf, not simply speaking on the teachers' own behalf. He was particularly concerned about younger and more impressionable students getting this misapprehension.

But a long-established First Amendment principle warns against watering down the speech adults may hear to only that which is fit for children. Here, Judge Kaplan openly watered down the speech high-school seniors may hear to only that which is fit for grade-schoolers, if the two classes share a school building.

Judge Kaplan also indicated that he believes that the Board is entitled to deference regarding whether students are likely to confuse teachers' buttons with the school's views. But it seems far from certain that the Board - as opposed to teachers, who see the students every weekday - would have any expertise as to what students might or might not believe.

Moreover, preventing confusion does not seem to have been the Board's sole or even its primary motivation here. Remember, the Board itself declared the motivation behind these regulations: forcing teachers to adopt "a posture of complete neutrality." The point wasn't that the teachers' political views would be confused with the school's view, which was neutral. It was that the teachers themselves had to be neutral. Judge Kaplan helped out the Board too much when he ascribed to its policy a rationale very different than the one it had articulated.

Had Judge Kaplan faced up to the policy's real motivation, he might have acknowledged that this is a new kind of case, testing a new kind of rationale for teacher censorship - and one in which it's easy to poke holes. Is there really a neutral way to teach U.S. History, World History, or Current Events? Is there a neutral way to coach the debate team as to which of their arguments are persuasive and which are weak? Is there a neutral way to choose the novels twelfth-grade AP students read?

Rather than pretending to a false neutrality, teachers should put their views on the table and let students challenge them. Otherwise, we'll be in the anomalous position of having English and History teachers instruct students about how writers and speakers convey their political views, explicitly and implicitly -- while at the same time forcing the teachers to falsely deny that they themselves ever hold or convey such views.

In these respects, I believe that Judge Kaplan overread Hazelwood - making it even more pro-Board and anti-teacher-speech than it already is. It's true that Hazelwood constrained his analysis, but not to such an extreme extent.

Judge Kaplan also failed to persuasively answer a simple question: Why couldn't the Board simply require teachers who do wear buttons to say to their students, "These are my views - not the school's - and you don't have to agree with me"?

A More Difficult Issue than That of Voters' Wearing Political Buttons In Polling Places

In my last column, I argued that there is a very strong case for the position that the First Amendment protects voters' right to wear political buttons to their polling places. But I acknowledged, too, that the question would be very different if the people wearing the buttons were, instead, poll workers. Having the same people approving vote totals and wearing partisan buttons could raise in voters a reasonable fear of election corruption.

I think the issue of whether teachers in public schools should be able to wear campaign buttons falls somewhere in between these two extremes - but much closer to button-wearing neighbors in line at the polls, than button-wearing poll workers. Granted, teachers are authority figures, but in the school, not in the polling place. Perhaps they will influence the 18-year-old voters among their students, or younger students who are future voters, but ultimately, the choice is the students' own.

Moreover, one could argue that a teacher's influence could be legitimate. In my prior column, I argued that voters could rationally take the preferences of neighbors in their community into account. Why shouldn't a student be influenced by a beloved teacher's political beliefs and affiliations, just as she might be by one of her parents'? And I do mean "influenced": Anyone who thinks public-school students are teachers' mere puppets hasn't visited a public school in about 30 years. Usually Boards are heard more often to contend that students are too wild and uncontrollable.

Silencing teachers from expressing political views also indulges parents who simply seek to make their children into copies of themselves - the same parents who want to censor curriculum or school library books, or guarantee their children a right to opt out of assignments of which the parents do not approve. One of the best aspects of public schools is that they can enlarge children's worlds. The more teachers are silenced, and the more narrowly their roles are defined, the more narrow children's worlds will remain.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.