USD No. 233 v. Kansas Ass'n of American Educators

Citation64 P.3d 372,275 Kan. 313
Decision Date07 March 2003
Docket NumberNo. 87,898,87,898
CourtUnited States State Supreme Court of Kansas

Jean Lamfers, of Lamfers & Associates, L.C., of Shawnee, argued the cause, and Nancy Merrill Wilson, of the same firm, was with her on the briefs for defendant/appellant.

Michael G. Norris, of Norris, Keplinger & Herman, L.L.C., of Overland Park, argued the cause, and John Hicks, of the same firm, was with him on the briefs for plaintiff/appellee.

David M. Schauner, of Kansas National Education Association, of Topeka, argued the cause, and Robert Blaufuss and Marjorie A. Blaufuss, of the same association, were with him on the brief for defendant/appellee.

The opinion of the court was delivered by


The Kansas Association of American Educators (KANAAE) appeals the district court's declaratory judgment denying it access to the internal mail system of the Olathe Unified School District No. 233 (school district or district). We transferred the appeal from the Court of Appeals pursuant to K.S.A. 20-3018(c).

KANAAE, the school district, and the Olathe National Education Association (ONEA) (which is allowed access to the internal mail system) require us to determine whether the district court erred when it concluded that: (1) KANAAE is a "professional employees' organization" under the Professional Negotiations Act (Negotiations Act or Act), K.S.A. 72-5413 et seq.; (2) the school district's board of education properly denied KANAAE use of the mail system to distribute its membership materials; and (3) this denial did not violate KANAAE members' First Amendment rights to freedom of association. We affirm the district court in all respects.


The school district and the State of Kansas have recognized ONEA as the exclusive collective bargaining representative for the district teachers since November 1970. In that capacity, ONEA has served as the teachers' representative on the Professional Council, which is the forum for negotiating their terms and conditions of professional service with the district.

In the mid 1990s, a number of the district's teachers became members of the Association of American Educators (AAE), a self-described conservative alternative to the National Education Association with which ONEA is affiliated. In February 1996, the new AAE members contacted a school board member, inquiring about potential AAE membership on the Professional Council and about their use of the internal mail system, i.e., mailboxes, to distribute their recruiting materials. The district refused AAE's request, citing its collective bargaining/negotiated agreement (negotiated agreement) with ONEA as the basis for its denial. Douglas Barnett, an early member of the AAE in Kansas, independently researched the basis for the district's denial and learned that not only was ONEA properly certified as the teachers' exclusive collective bargaining representative but also that ONEA had successfully negotiated with the district for the exclusive use of the mail system. Barnett acknowledged that during his early years with AAE, he had aggressively solicited members for AAE and may have told others that he hoped it would replace ONEA as the district teachers' representative.

More than 2 years later, on August 13, 1998, Barnett, as the incorporator and president of KANAAE, asked the district's superintendent of schools for permission to use the mail system to distribute his newly incorporated organization's membership brochure. According to Barnett's brochure, ONEA members were encouraged to drop their membership and join KANAAE for hundreds of dollars less per year while still receiving similar benefits. This brochure further advised potential members of KANAAE's goal to "enhance the professional status and compensation of educators" "without the union's [ONEA] social agenda" and proclaimed "it's time for a new voice speaking for main-stream teachers in Kansas." The district again refused the request, again citing its negotiated agreement with ONEA.

In January 1999 and again on May 27, 1999, Barnett twice accessed the district's electronic mail system to solicit the entire district staff to join KANAAE. Among other things, Barnett's messages reminded teachers of the required deadlines for dropping their ONEA membership. ONEA's suspicion of KANAAE's motives increased.

Approximately 1 year later, on May 5, 2000, Vince Snowbarger, Executive Director of KANAAE, made another request for use of the mail system, particularly to distribute a revised membership brochure. This brochure compared the benefits of KANAAE membership with those of union membership and asked teachers why they should "pay three times as much" in union dues "when KANAAE . . . offers many of the same benefits that the teacher union provides at a fraction of the cost of belonging to a union." In support of Snowbarger's request, his board of directors passed a resolution 3 days later, on May 8, 2000, which stated:

"`[T]he Kansas Association of American Educators shall not engage in professional negotiations as that term is defined in K.S.A. 72-5413(g), but it continues to reserve the right to discuss issues with boards of education, superintendents or other executive officers employed by boards of education as provided in K.S.A. 72-5415(b).'"

Snowbarger then provided copies of the resolution to the district.

After the district consulted with ONEA's president, it again refused the request, despite KANAAE's recent resolution. The district again cited its negotiated agreement with ONEA. The district was now faced with KANAAE's allegations that refusal to allow the brochures' distribution through the mail system would violate KANAAE members' rights to free speech and association. On the other hand, the district was faced with ONEA's allegations that such distribution would be a prohibited practice under the Negotiations Act. Consequently, on June 2, 2000, the district filed a petition for declaratory judgment in the Johnson County District Court.

During 2 days of hearings, the court considered the testimony of Barnett and Aletha Rogers, members of KANAAE's board of directors, and Snowbarger. Barnett testified that though 80 to 90% of his group's members were professional employees, other members of the community were allowed to join also. He further explained that while KANAAE was interested in enhancing teachers' compensation, it did not currently intend to negotiate with the district. Throughout his testimony, Barnett presented the current board's views concerning negotiations, but acknowledged that a future board of directors could void the recent resolution and seek to negotiate. In her time-limited testimony, Rogers testified that KANAAE advocated merit pay and hiring rather than the seniority-based systems promoted by unions, e.g., ONEA.

During his direct examination, Snowbarger testified that though KANAAE was an association predominantly made up of professional educators which considered itself an alternative to unions, it had no interest in negotiating with the district over terms of professional employment. On cross-examination, however, Snowbarger acknowledged he was the author of a promotional flyer entitled "10 REASONS TO DUMP THE UNION AND JOIN KANAAE." The flyer outlined KANAAE's philosophy and advantages of membership:

"KANAAE stands for the highest in ethical standards and educational excellence.
"KANAAE promotes character education. We even support the education of characters!
"KANAAE supports education in Kansas, not confrontation in Washington.
"KANAAE is non-profit, non-partisan, non-sectarian — but we are pro-education.
"KANAAE does not support political candidates or social agendas unrelated to education.
"KANAAE asks members to determine the positions the organization will take on education issues.
"KANAAE gives you a `choice' of affiliation with a professional emphasis.
"KANAAE is linked with other state and national independent teacher organizations across the United States.
"KANAAE provides its members with $1 million in liability coverage (plus defense costs). Remember the answer to the question `Can I be sued?' is `Of course you can!'
"KANAAE dues are $149 per year compared to union dues of $400-500* *."

Following the 10 reasons cited, Snowbarger's flyer went on to encourage teachers to give themselves "a raise" by ending their union membership in favor of KANAAE, "the Professional Alternative."

The district emphasized this theme during its closing argument by citing several newspaper articles in evidence. There, Snowbarger reportedly had claimed that KANAAE "had not ruled out becoming a participant in collective bargaining . . . if a majority of teachers in the district want that," but that it was not currently KANAAE's goal "to assume that role."

The district court's resultant journal entry in favor of the district and ONEA did not appear to differentiate between findings of facts and conclusions of law, but stated them as follows:

"1. Olathe NEA is a professional employees' organization as that term is defined by K.S.A. 72-5413(e) of the Professional Negotiations Act (`PNA'), K.S.A. 72-5413 et seq.
"2. Olathe NEA has been recognized as the exclusive bargaining representative of the professional employees of the plaintiff School District in accordance with K.S.A. 72-5416(a).
"3. In its role as the exclusive professional bargaining representative in the District, Olathe NEA has negotiated with the plaintiff school district `terms and conditions of professional service' as that term is defined by K.S.A. 72-5413(1).
"4. Among the `terms and conditions of professional service' negotiated by the plaintiff and the Olathe NEA is the exclusive right of Olathe NEA to use the Plaintiff's internal mail system. This right is

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