Judge Says No to Teachers’ Campaign Buttons, but Yes to Certain Politicking

By JAVIER C. HERNANDEZ

Published: October 17, 2008

A federal judge on Friday upheld New York City’s policy prohibiting public school teachers from wearing political buttons in the classroom, but said the teachers could place campaign material into colleagues’ mailboxes and hang posters on bulletin boards maintained by their union, as long as they were in areas off-limits to students.

The split decision came after the union, the United Federation of Teachers, sued over a city rule that requires teachers to remain neutral about politics while on duty to avoid any sense of pressure among students to echo their views. The union, which has endorsed Senator Barack Obama, the Democratic nominee for president, argued that the longstanding regulation had never been enforced and that it curtailed teachers’ right of free speech.

Judge Lewis A. Kaplan of Federal District Court in Manhattan said that it should be up to individual school districts to determine whether buttons in the classroom interfered with learning. He cautioned, however, that “school officials may not take a sledgehammer to freedom of expression and then avoid all scrutiny by invoking alleged professional judgment.”

The judge said that while a majority of students would probably understand that a button represented a teacher’s personal view, there would be “inevitable misperceptions on the part of a minority.”

Ann Forte, a spokeswoman for the Department of Education, said, “We won on the issue that was most paramount to us,” and she called the mailbox and bulletin board rulings “secondary issues.”

Norman Siegel, the civil liberties lawyer representing the teachers’ union, said that the union was pleased about Judge Kaplan’s recognition of some First Amendment rights for teachers and that it would continue to push for the right to wear buttons.

There have been conflicting court rulings over how far the government can go in regulating what teachers say in the classroom ever since the Supreme Court’s Tinker case, four decades ago, which proclaimed that neither teachers nor students “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Schoolchildren have historically been recognized as a distinctly vulnerable group, and schools have enjoyed such paternalistic powers as requiring school uniforms. Courts generally see teachers as role models given extraordinary trust and holding a special influence over their students.

The government, like any business, has the authority to tell its employees what to do so that it can continue to operate effectively. A teacher cannot spend each English period talking about baseball, or each physics class teaching false scientific theories.

The city argued that when a teacher wears a political button in the classroom, it creates an environment of intimidation and hostility toward students who do not share that view. The union, by contrast, argued that students would be able to distinguish between personal and institutional views.

Samuel Issacharoff, a professor of law at New York University, said: “The line we seek to draw is that individuals who are public employees retain the rights of full citizenship in society and do not lose them as a result of being state employees. On the other hand, they can’t use their state employment to accentuate the power of their political views. That’s the tension.”

That tension has been the subject of court cases in several states. The University of Illinois recently came under fire for urging its employees to refrain from attending political rallies and from displaying campaign bumper stickers on campus.

Part of the trouble in arriving at clear legal conclusions is the inevitable gray area that emerges when considering teachers’ roles as instructor and individual. Should teachers be allowed to write letters to the editor? Should they be able to wear buttons while walking from their classroom to the car?

Last week, the unresolved nuances were on display at Middle School 61 in Crown Heights, Brooklyn, where an oversize portrait of Mr. Obama that had been hanging near the entrance of the school was taken down under pressure from the Department of Education. The banner showed the Rev. Dr. Martin Luther King Jr. and other black luminaries framed by a blue sky and looking down on the man who could become the nation’s first black president.

“It only gave images of hope,” said Asher Rison, a teacher at the school. “It wasn’t about politics.”

The Department of Education disagreed, saying that whatever the intent, the banner amounted to political favoritism prohibited under the department’s rules.

At schools across the city this week, the fuzzy free-speech questions were reflected in conversations with students, parents and teachers.

At Community School 134 in the Bronx, Ken Chanko, a teacher of writing who wore a small Obama button on his jacket as he left school on Thursday, said that such miniature adornments seemed acceptable, but that large posters should not be permitted.

“I think there is a fine line,” Mr. Chanko said. “I think you can overreact from either perspective.”

Keyshawn Baker, 11, who graduated from the school last year, said that a teacher’s views displayed on clothing would not affect him. “I have my personal opinion about who I should support,” he said.

But Anita Faucette, whose son is in fourth grade at Public School 16 in the Bronx, said she would prefer that teachers keep their political preferences to themselves. “The children are impressionable and young,” she said. “They mimic what they see or they hear.”

At Middle School 61, where the Obama banner was hung, David Rampersad, a Verizon field technician whose 11-year-old daughter attends the school, said that students “should be exposed to politics” but that “they might feel pressure to swing a certain way.”

“They’re too young for this pressure,” he added. “They need to be focused on whatever they are learning in school.”

Ann Farmer and Jason Grant contributed reporting.