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Legal Brief                                                         Page 10

 

Politicking Rules for the

Campaign Season   

BY NANCY KRENT

Legal_NancyKrent

In what has shaped up as another divisive election year, political attacks on public education and on teachers and their unions continue to inflame passions on school campuses. Schools are natural supporters of the democratic process, but they must maintain an appropriate educational environment and balance free speech of faculty and students with the need for decorum.

So as we prepare for a final campaign stretch full of pithy campaign buttons, nasty bumper stickers, “funny” T-shirts and school halls ringing with arguments, more and more school districts are trying to develop guidelines for political activity on school grounds.

Many states have laws that restrict the political activities of school employees. In Illinois, the State Officials and Employees Ethics Act requires school districts to adopt a policy banning employees from “prohibited political activity” during “compensated time” or from using school district resources for that activity. The state of Oregon (less notorious for its politicians’ behavior) prohibits public employees from using work time to distribute political documents or post political positions on websites.

In states with public employee collective bargaining, schools should review their collective bargaining agreements before developing electioneering guidelines. These agreements include provisions regarding dress codes, posting materials on union bulletin boards and placing union literature in employees’ school mailboxes. Because proposed campaign rules can affect these provisions, you may need to bargain over these matters.

Regulating Speech
Under the First Amendment, public employers, including schools, may regulate an employee’s speech if it is made pursuant to his or her official duties, provided the restrictions are supported by an adequate justification. Courts have found that valid justifications may include disruption of the work or school environment; distraction from teaching; or a concern that political views of school employees may be attributed to the school. With teachers, this concern is heightened because students are captive audiences.

For these reasons, school districts may prohibit employees from discussing their political views with students during work time, which may include times that fall outside of the regular school day, such as during sporting events or school dances. They also can prohibit employees from wearing campaign attire, provided these speech and clothing limits are imposed in a viewpoint-neutral manner. These restrictions must be applied to all staff members, without regard to the position or candidate they are advocating.

These same restrictions cannot generally be applied to students. Under the Supreme Court’s seminal decision in the Tinker case, students have the right to express their political views in school, whether by speaking out in favor of their candidates (although not while the teacher is trying to teach a math class!) or by wearing campaign buttons or T-shirts. The only exception would be if there were a reason to believe these actions would cause substantial disruption in the school.

Distributing Literature
Students and faculty also hold different rights with respect to distributing campaign literature. For students, campaign literature is no different than any other materials students may want to distribute. If the school has created a limited open forum, allowing nonschool materials to be distributed by students, campaign literature can be handed out by students under those same rules.

On the other hand, school districts may (and in many states, must) adopt policies that prohibit employees from distributing campaign literature on school property and from using the school district’s mail system or electronic network for campaign or political reasons. Union bulletin boards in an employee lounge area raise different legal issues because a union board is provided for union business. For this reason, the issue probably is best dealt with through the collective bargaining process.

As we move toward Election Day in November, many schools will face tough moments as students and teachers alike engage in our true national sport of political campaigning. Here’s hoping our students learn from us to engage vigorously but civilly in the greatest achievement of our democracy, our national elections.

Nancy Krent is a law partner with Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP in Arlington Heights, Ill. E-mail: nkrent@hlerk.com 

 

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