Brady Begeal, Albany Government Law Review Member
During the Presidential campaign race of 2008, the United Federation of Teachers (UFT), the largest public school teachers’ union in the country, began distributing pro-Obama political materials to its members after deciding that summer to support Obama’s run for office. Soon after, New York City informed UFT that teachers could not wear political buttons because of the City’s policy. The City’s policy was found in a regulation that stated “[w]hile on duty or in contact with students, all school personnel should maintain a posture of complete neutrality with respect to all candidates.” The regulation went on to say “[n]o material supporting any candidate, candidates, slate of candidates, or political organizations/committees may be distributed, posted, or displayed in any school building.” UFT promptly filed a suit against the City, claiming First Amendment violations and challenging the regulation’s validity. In January, 2010, over two years after the suit was filed, a New York district court held that New York City may pass regulations banning high school teachers from wearing political buttons at school without infringing upon the teacher’s constitutional right to free speech.
The New York City Education Chancellor Joel Klein argued that “[p]artisan political activity by staff in the presence of students . . . sends the message that the view expressed carries the support of the school system.” At trial, plaintiffs presented expert testimony from David Moshman, a professor of educational psychology at the University of Nebraska. Moshman testified that elementary students “may fail to distinguish speech that happens to occur on school premises from official school views and teachings and may be unable to fully comprehend explanations without distinction.” However, when it comes to high school students, they can “spontaneously understand that a teacher’s button is not part of the curriculum” and “[f]ew, if any [high school students] would mistakenly believe that a campaign button worn by teachers constituted official school-related speech.” To this, Judge Kaplan of the Southern District of New York stated that Moshman “acknowledges that at least some would be misled on that point and to that extent concedes that the defendants’ determination is well grounded in some degree.” Thus, the court ultimately concluded that “[p]laintiffs . . . failed to raise a genuine issue of fact that the Regulation’s ban of teacher-worn political buttons in high schools is not reasonably related to defendants’ legitimate pedagogical concerns.”
The outcome of this case is hardly shocking. The United States Supreme Court first addressed the free speech rights of students and teachers in the well-known case Tinker v. Des Moines Independent Community School District in 1969. There, the court articulated one of its most famous free speech quotes: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, Tinker was the “high point” for student and teacher free speech rights, which have gradually diminished and have been replaced by the growing right of schools to enforce academic discipline and maintain pedagogical interests. Over the last forty years, schools began disassociating themselves from government politics while courts have grown more willing to shelter school districts on the issue restricting political speech by teachers.
Because there is no Supreme Court case that directly addresses teachers’ First Amendment rights to free speech in the classroom, lower courts have meshed rules from related Supreme Court cases. In Hazelwood School District v. Kuhlmeier, the Supreme Court ruled that “school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community.” This censorship can occur when it is “reasonably related to legitimate pedagogical concerns.” This decision and the standard employed was based on an issue of free speech by students, but courts since then have extended the reasoning to political speech by teachers. The Hazelwood standard has been criticized for that reason, and for many others, including the argument that a legitimate pedagogical concern appears to be whatever the school says it is.
Abhorrence for teachers who impose their own personal beliefs on impressionable children is not a new subject. In the 4th century B.C., Socrates was to be executed for corrupting the minds of young Athenians. Most will argue that teachers and schools should remain neutral, unbiased, and should limit their criticism of certain candidates and support of others, so as to not create “an environment of intimidation and hostility toward students who do not share that view.” Thus, the school is a place for learning, not politics. However, some hold a very differing view point. Randi Weingarten, President of the UFT, said “[s]tudents can only benefit from being exposed to and engaged in a dialogue about current events, civic responsibilities and the political process.” Teachers who wear political buttons can be viewed as living examples of the democratic process at work and can encourage students to exercise their own right to express political beliefs, especially those students who may have been afraid to speak out.
Either way, it is evident that teachers’ right to speak out in the class room or show political support is all but gone. It is unlikely that the Tinker court contemplated that the law would head down such a path. Most agree that a more effective doctrine needs to materialize, one that specifically addresses the scope of teachers’ right to free speech in school. For now, while litigation and debate continues on the issue of teachers’ ability to wear political material in the class room, dispute over the state-of-the-law is all but over: teachers must retreat to neutral political ground when they enter the classroom.
Edited by Joe Slater & Marisa Floriani
 Larry Neumeister, NYC Teachers Sue to Wear Political Buttons in School, U.S.A. Today, Oct. 11, 2008, available at http://www.usatoday.com/news/education/2008-10-11-teachers-politics_N.htm.
 N.Y.C. Dep’t of Educ., Chancellor’s Regulation D-130 § C.1, http://docs.nycenet.edu/docushare/dsweb/Get/Document-86/D-130__1-15-04.pdf.
 Neumeister, supra note 1.
 Weingarten v. Bd. of Educ. of City Sch. Dist. of New York, No. 08 Civ. 8702(LAK), 2010 WL 254915, at *5-6 (S.D.N.Y. Jan. 22, 2010).
 Id. at 2.
 Noeleen G. Walder, Court Upholds Ban on Wearing of Political Buttons by Teachers, 243 N.Y. L.J. 1 (Jan. 26, 2010).
 Weingarten, WL 254915 at 3.
 Id. at 5.
 393 U.S. 503, (1969).
 Id. at 506.
 Alexander Wohl, Oiling the Schoolhouse Gate: After Forty Years of Tinkering with Teachers’ First Amendment Rights, Time for a New Beginning, 58 Am. U. L. Rev. 1285, 1287 (2009).
 Id. at 1319-21.
 Zachary Martin, Public School Teachers’ First Amendment Rights: In Danger in the Wake of “Bong Hits 4 Jesus”, 57 Cath. U. L. Rev. 1183, 1185-86 (2008).
 484 U.S. 260, 267 (1988).
 Id. at 273.
 Vikram Amar & Alan Brownstein, Academic Freedom, 9 Green Bag 2d 17, 20 (2005).
 Id.; Wohl, supra note 15, at 1310, 1299.
 Wohl, supra note 15, at 1290.
 Javier C. Hernandez, Judge Says No to Teachers’ Campaign Buttons, But Yes to Certain Politicking, N.Y. Times, Oct. 17, 2008, available at http://www.nytimes.com/2008/10/18/nyregion/18button.html?_r=1.
 Neumeister, supra note 1.
 Amar & Brownstein, supra note 19, at 18.
 Wohl, supra note 14, at 1289-90.