by Kim C. Belin, Esq.
A board of education may regulate political speech by its employees including the wearing of pro-union buttons during contract negotiations, in situations in which students are present. However, the board’s policy may not be so broad as to regulate conduct occurring outside the presence of students. So ruled the Appellate Division recently in Green Township Education Association v. Stephen P. Rowe, et al. This decision effectively establishes guidelines for the extent to which a public school district may restrict its employees’ freedom of speech in the workplace.
The Green Township Board of Education’s conflict of interest policy prohibited employees from engaging in three types of activities: 1) actively campaigning on school property on behalf of any candidate for local, state or national office, or actively promoting any opinions on voting issues; 2) displaying any materials that would promote the election of any candidate or opinions on voting issues on a day the school is used as a polling place; and 3) engaging in any activity with students during performance of the employees’ duties, which activity is intended or designed to promote, further or assert a position on any voting issue, board issue, or collective bargaining issue. This policy went unchallenged until the collective bargaining agreement expired, and Association members began wearing pro-union buttons reading “NJEA SETTLE NOW” in school. The Superintendent, citing the board policy, directed the members to refrain from wearing the buttons in the presence of students on school property.
The Appellate Division applied the standard for determining academic free speech of staff espoused by the United States Supreme Court in Pickering v. Board of Education. This standard balances the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as employer, in promoting the efficiency of the public service it performs. In applying this standard, the court found that clauses one and two of the conflicts of interest policy were too broad, and not sufficiently confined to the setting of the school facility or classroom. The court stated that clause one could be construed to bar employees from using their lunch breaks or free periods to express their views to other willing adults outside the presence of students. Similarly, the court.found clause two constitutionally infirm because if read literally, it would prohibit teachers from passing out political leaflets off school property during non-working hours. However, clause three was found to be reasonable because the teachers’ priority is to teach and provide students with a thorough and efficient education, not “proselytiz[e] students to advance the teacher’s financial interest.” Thus, the board could prohibit the wearing of the familiar NJEA “Settle Now” buttons in classrooms or in any setting where students are present.
The court opined that the infirmities in clauses one and two could be remedied by “a carefully worded policy tailored to prohibiting teachers from promoting positions on labor relations issues in the presence of students while on school property.”
Accordingly, districts should review their policies and ensure that any prohibitions on political expression are limited to situations in which the students are present on school property. Boards should also bear in mind that this opinion does not prohibit teachers from responding to questions raised by students. Districts in need of amending their policies should contact Capehart Scatchard’s Employment and Education attorneys for assistance.
This article was written by Kim C. Belin, Esq.
© 2000 Capehart & Scatchard, P.A.
