New York City Teachers: Leave Obama at the Schoolhouse Gate

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.[1]  Soon after, New York City informed UFT that teachers could not wear political buttons because of the City’s policy.[2]  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.”[3]  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.”[4]  UFT promptly filed a suit against the City, claiming First Amendment violations and challenging the regulation’s validity.[5]  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.[6]  

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.”[7]  At trial, plaintiffs presented expert testimony from David Moshman, a professor of educational psychology at the University of Nebraska.[8]  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.”[9]  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.”[10]  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.”[11]  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.”[12] 

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.[13]  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.”[14]  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.[15]  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.[16] 

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