Friedman v. Union Free School Dist. No. 1, Town of Islip

• Decision Date: 15 June 1970
• Docket Number: No. 69-C-1205.,69-C-1205.
• Parties: Michael FRIEDMAN, as President of Bay Shore Classroom Teachers' Association, and suing on behalf of himself and all other teachers employed by Union Free School District No. 1, Town of Islip, Suffolk County, New York, and similarly situated, Plaintiff, v. UNION FREE SCHOOL DISTRICT NO. 1, TOWN OF ISLIP, Suffolk County, Raymond R. Howard, Superintendent of Schools of said school district and Manus H. O'Donnell, Assistant Superintendent of Schools of said school district, Defendants.
• Court: U.S. District Court — Eastern District of New York

314 F. Supp. 223

Michael FRIEDMAN, as President of Bay Shore Classroom Teachers' Association, and suing on behalf of himself and all other teachers employed by Union Free School District No. 1, Town of Islip, Suffolk County, New York, and similarly situated, Plaintiff, v. UNION FREE SCHOOL DISTRICT NO. 1, TOWN OF ISLIP, Suffolk County, Raymond R. Howard, Superintendent of Schools of said school district and Manus H. O'Donnell, Assistant Superintendent of Schools of said school district, Defendants.

No. 69-C-1205.

United States District Court, E. D. New York.

June 15, 1970.

Leonard G. Kramer, East Islip, N. Y., for plaintiff.

Robbins, Wells & Walser, Bay Shore, N. Y., for defendants, by Richard W. Walser, Bay Shore, N. Y Sneeringer & Rowley, Albany, N. Y., for New York Teachers Association amicus curiae.

ZAVATT, District Judge.

Both plaintiff and defendants have moved for summary judgment. The plaintiff's motion for summary judgment is granted; the defendants' cross-motion for summary judgment is denied.

Plaintiff, a teacher in defendant school district, is the President of the Bay Shore Classroom Teachers' Association (BSCTA), the duly certified exclusive bargaining agent of the school district's employees pursuant to Article 14 of the Civil Service Law of New York ("Taylor Law"), McKinney's Consol. Laws, c. 7. He sues on behalf of himself and all other teachers employed by defendant school district (the District). The District was organized as a union free school district pursuant to the Education Law of the State of New York. The defendant Howard is the Superintendent of Schools of the District; the defendant O'Donnell is the Assistant Superintendent of Schools.

The dispute in question concerns the constitutionality of section 11F-21 (11F-21) of "Administrative Manual" (Manual) of the District which provides as follows:

11F-21 Staff Solicitations and Distribution of Material to Staff Members: School Mailboxes and All Other School District Facilities Faculty mailboxes, as well as all other school building facilities, are the property of the School District and are maintained for the convenience of the School District in carrying out its duties and in the administration of its affairs. Distribution through such facilities shall be limited to items of official business of the Bay Shore School District only, e. g., official school notices and other distributions by the Superintendent's Office, (such as items of community or public interest and recognized charitable appeals) principals' or directors' notices, departmental announcements, etc., and routine internal distribution of any exclusive negotiating agent for school district employees recognized or certified pursuant to the provisions of the Public Employees' Fair Employment Act.

The distribution, posting, or display of all other literature, materials or notices shall be prohibited.

`Routine internal distributions' shall be defined as notices of meetings, elections, results of elections, and social events. The distribution of newsletters, position papers, materials of other organizations, or any other communications which do not concern themselves with the routine operation of an exclusive negotiating agent shall be prohibited.

The plaintiff claims that this section of the Manual is unconstitutional and void on its face and in its application to plaintiff in that it constitutes a deprivation of freedom of speech in violation of the First and Fourteenth Amendments. Plaintiff demands judgment:

(1) declaring section 11F-21 of the Manual void on its face;

(2) declaring that the application thereof (as hereinafter set forth) violates the plaintiff's First Amendment rights;

(3) enjoining the defendants from applying and enforcing said section;

(4) enjoining the defendants from preventing the plaintiff from distributing "The Voice," a BSCTA publication, and other literature on school property;

(5) awarding plaintiff costs and disbursements.

The defendants counter these assertions by claiming that the plaintiff must first submit this claim to arbitration; that the matter is one that should properly be negotiated between the parties; that said section is a reasonable exercise of the powers of the Board of Education under sections 1709 and 414 of the New York Education Law, McKinney's Consol.Laws, c. 16. These sections vest title to public school premises and control over its facilities in the Board of Education of the District. N.Y. Education Law § 1709(9).

On September 2, 1969 the BSCTA and the District concluded negotiations and signed a collective bargaining agreement, expiring July 1, 1970, defining the conditions and terms of employment of the teachers of the District. It appears that 11F-21 was discussed during the negotiations but that the teachers were unable to convince the Board to repeal it and were also unwilling to bargain for its repeal by dropping several other bargaining demands. The subject was dropped from the negotiations and 11F-21 remained part of the Manual which was incorporated by reference into the collective bargaining agreement. It is important to note the 11F-21 became part of the Manual on June 19, 1968, by unilateral action of the Board, well before the negotiations leading to the present contract between the parties. (Affidavit of defendant O'Donnell).

The teachers made good their promise to test the constitutionality of 11F-21 in the courts (Affidavit of Friedman) when they distributed copies of "The Voice" through faculty mailboxes and in other school areas, two days after the contract was signed, thus precipitating the present action.

On September 8, 1969, defendant O'Donnell sent a letter to Joan Best, Corresponding Secretary of the BSCTA, informing her that such distribution was in violation of section 11F-21 and stating, inter alia, that:

The wording of Section 11F-21 is clear in that except for certain limited specific items, no distributions through faculty mailboxes or school facilities are permitted. This would, of course, cover distribution by hand whether before or after hours of work, as long as such distribution is on school district property * * *. I would urge you to meet with me * * * since further violation of the policy, after this written notice would leave this office with rather limited alternatives.

That same day a Superintendent's Bulletin entitled "Clarification of Distribution Policy" was issued. The "clarification" of 11F-21 reiterated that only "routine internal distributions" of the BSCTA were permitted. It also stated that:

All other distributions are prohibited. It should be noted that even if an unauthorized distribution were to take place before or after the normal work day, informally in hallways, lunchrooms, parking lots, etc., it would still be in violation of policy.

After stating that it is the duty of any administrator to report any infraction of this rule and to direct that any such infraction cease, it added that "if the action continues in the face of such direct advice, further action would ensue."

Is section 11F-21 constitutional?

The defendants contend that no constitutional issue is presented by the section in question. They argue that, under sections 1709 and 414 of the New York Education Law,¹ title to the premises and facilities of the District is vested in the school board along with the concomitant power reasonably necessary to carry out the duties granted it under said sections. § 1709(33). Among these is the power "to establish rules and regulations concerning the order and discipline of the schools * * *." § 1709(2).

It is the Board's position that its limited distribution policy is reasonable, in that it prevents the school board from becoming a censor of material distributed on school premises. In other words, the Board (with the limited exceptions of 11F-21 not here relevant) has prevented itself from deciding what particular items are or are not properly distributable in the schools by forbidding the distribution of all literature. A further statement of the Board's rationale behind 11F-21 is that:

* * * it preserves the order and decorum of the school buildings, insures that the facilities of the school district are utilized for the purpose of educating the children of the District only, and makes it unnecessary for the administration staff of the School District to judge the merits or demerits of any request to distribute literature * * *. (Howard affidavit p. 3).

There is also a gratuitous suggestion that the distribution of BSCTA material, during periods of negotiation, is disruptive to the extent that,

at times it appears that the advancement of education within the District is forgotten altogether in the turmoil and tension that precedes the reaching of the final negotiated agreement. (Emphasis added).

There is, however, no specific allegation that such disruption ever took place in actuality.

It is of note that 11F-21, as interpreted, does not ban the use of the mailboxes in question if the literature or mail in question is mailed to the school through the United States mail. For example, if the faculty members had put a six cent stamp on "The Voice," and had placed it in a Government Post Office mailbox, it would have been placed in the school mailboxes pursuant to school board policy. However, the placing of "The Voice" directly in the faculty mailbox or in other areas of the school is prohibited.

This policy regarding the use of mailboxes is important when considering the reasonableness of the regulation in question. But it must be borne in mind that the 11F-21 prohibition reaches far beyond the faculty mailboxes and "The Voice." It prohibits the distribution of all literature by teachers in all areas of the school premises at all times (with the limited exception of "routine internal distributions").

In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Supreme Court...