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Jan 28 2010

Court Bans Teachers From Wearing Political Pins? Free Speech Apparently Preserved Only For Companies

Earlier this week Federal Judge Lewis Kaplan upheld a NYC Dept of Ed regulation that banned teachers from wearing political pins in support of a candidate in the classroom. He cited the school’s need for an independent environment free of electioneering. But it is a curious decision in that just a few days earlier, his higher-ups at the Supreme Court struck down decades of legal precedent and a major piece of Federal legislation in alleged support of a corporation’s right to free speech.

It will be interesting to see if an appeal is taken to the Second Circuit, the appeals court over seeing Kaplan’s court, based on the Citizens United case. It would seem to me that a teacher has just as much right to freedom of political expression as Exxon or Halliburton. One of the ironies of the case is that one of the teachers who was forced to remove his Obama pin taught the “Participation in Government” Class at Manhattan’s Murray Bergtraum High School.

With the amazingly low voter turnout in this country, you would think we would want to promote political involvement to our children. While the court was concerned that teachers would use the classroom to campaign for their preferred candidate and create a political atmosphere in the class, that type of express conduct could easily be regulated. According to Randi Weingarten, President of the Teachers Union, quoted in Columbia University’s Red Ink newspaper, they had never had a student or parent complain about teachers trying to influence political decisions: “These ‘what if’ scenarios have not happened in two decades,”said Weingarten.

So it seems to me that the union should very well consider challenging this at a higher level if it deems it important enough. In these tough economic times, it may be hard to spend thousands and thousands of dollars fighting over a political pin and the union may just choose to “pick its battles.”

And that brings us back to the importance of the Citizens United case. Very few entities can spend like multinational corporations can and this case already exemplifies the shifting balance in favor of corporate spech that the decision will cause.

3 comments

  1. Diana

    Although the judge cited the need for “an environment free of electioneering,” this case is more about non-profit political expression than about the environment of the classroom. When I worked at a certain university, I received a memo warning us not to advocate or express preference for a particular candidate in the classroom or office setting. Doing so would “threaten” the tax-exempt status of the university. (As a political science prof. this was surely disturbing!) The same is true of religious institutions that also “enjoy” such a tax-exempt status. They too, are not allowed to campaign from the plupit Thus, the teacher currently does NOT have the same freedom of political expression as John Doe over at Exxon. SHOULD they have as much freedom? Sure, I think they should. There needs to be a distinction between political expression, political activity, and political lobbying. (Although of course there are plenty non-profit “organizations” that lobby–but that’s another story–and other right-wing religious US politicians who are using tax payer dollars to wage religious “wars” overseas in countries with a poor, volitle, and vulnerable political environment –again another story for another time). I don’t think politcal expression (correctly definined)should EVER be limited. (Political expression, such as pin wearing is not one and the same as ACTIVE electioneering) What is the theoretical (or democractic) justification for not allowing non-profits political expression? Would this justification be a consitutional one–that is the, “establishment clause?” If so there were many facets of Bush’s faith-based initiatives that clearly failed the litmus test of the establishment clause. Further, how exactly does pin-wearing violate the establishment clause? At what expense should non-profits enjoy their tax-exempt status?–Surely not at the expense of freedome of expression.

  2. Diana

    By the way, I liked how Obama stated last night “With all do respect to separation of powers,”..and then directed his opinion to the justices re: their latest decision. I thought that was gutsy and necessary.

  3. Oscar Michelen

    Two things about your excellent posts. On the first issue, you should be aware that Citizens United IS a not-for-profit corporation so the decision also calls into question whether the State and Federal restrictions against political activity by a not-for-profit have been weakened. The theory against political activity by non-profits is that you are given an exemption from taxation and are allowed to offer tax deductions to your donors (for 501(c)(3)s) because you can then use your money for the common good and not for electioneering. But you hit on a point that is very important and which I have to address all the time. I serve as legal counsel to a few not-for-profits in my area and am constantly advising them about what they can and cant do. Many feel they can’t invite a person who happens to be a candidate for office to speak or if they do invite them that they have to invite their opponent. Not true – they cannot endorse a candidate but they can invite whomever they want to speak on any issue and not to campaign per se. You can hold a debate or an open forum (Just ask the Not for Profit League of Women Voters). You can even lobby. Yes, NFPs can lobby, 501c3 just says they cant lobby “substantially.” Whatever that means. It has never bee really defined. Most NFP boards are so scared of losing their tax status that their initial reaction to anything close to a political arena is to say “Oh we can’t do that we are an NFP.” But 501c3’s can also “educate” legislators about issues without restraint. So whats the real difference between lobbying and education? Finally, it is largely unknown, but when you can file for a 501c3, you can choose something called the “H” election. This election essentially defines “substantially”as 20% of gross revenue. If you file under this section your NFP can spend up to 20% of its gross revenue on lobbying and other forms of political activity, though you still cant endorse a specific candidate. So, Citizens may also throw a wrench in the works on this arena as well because why not take the case and extend it to say that NFPs have full right to freedom of political expression.

    On your second note, I did like what Obama said to the Supremes. But did you catch it when he said that Citizens would open the door to foreign corporations pouring money to our elections? The camera caught Judge Alito mouthing “Not true” to one of the other justices. I agree with Obama’s perspective that in the future it could certainly lead to that and I thought it was little unjudge like to mouth that, but I would not want to restrain Alito’s First Amendment rights.

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