Ysleta Federation of Teachers v. Ysleta Independent School Dist.

• Decision Date: 16 December 1983
• Docket Number: No. 82-1653,82-1653
• Citation: 720 F.2d 1429
• Parties: 115 L.R.R.M. (BNA) 2096, 14 Ed. Law Rep. 624 YSLETA FEDERATION OF TEACHERS, Harry W. Stone, III and Denise Knight, Plaintiffs-Appellees Cross-Appellants, v. YSLETA INDEPENDENT SCHOOL DISTRICT, Charles W. Benson, Kathleen Paxson, James W. Russell, Sr., Edd Fifer, Phyllis Armijo, Constance Hulbert, Algie Felder and Chilo Madrid, Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1429

720 F.2d 1429

115 L.R.R.M. (BNA) 2096, 14 Ed. Law Rep. 624

YSLETA FEDERATION OF TEACHERS, Harry W. Stone, III and Denise Knight, Plaintiffs-Appellees Cross-Appellants, v. YSLETA INDEPENDENT SCHOOL DISTRICT, Charles W. Benson Kathleen Paxson, James W. Russell, Sr., Edd Fifer, Phyllis Armijo, Constance Hulbert, Algie Felder and Chilo Madrid Defendants-Appellants Cross-Appellees.

No. 82-1653.

United States Court of Appeals Fifth Circuit.

Dec. 16, 1983.

Mayfield, Broaddus & Perrenot, Victor F. Poulos, Francis C. Broaddus, Jr., El Paso, Tex., for defendants-appellants cross-appellees.

H. Davidson Smith, III, El Paso, Tex., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, GEE and TATE, Circuit Judges.

GEE, Circuit Judge:

Regulations adopted by defendant Ysleta Independent School District grant the Superintendent of Schools complete discretion to review all material to be distributed by employee organizations through the internal mail system of the school district, with power to suspend all organizational rights to school time and facilities of employee organizations that fail to submit material for clearance. Acting pursuant to these rules, Superintendent Charles Benson suspended the organizational rights of plaintiff Ysleta Federation of Teachers on the grounds that the Federation had circulated mail without first clearing it with him and had used the school mails to contact teachers who were not members of the Federation in violation of a supplementary regulation which restricted such communication to once-a-year recruitment.

The Federation then challenged both the prior clearance requirement and the once-a-year rule as facially unconstitutional restrictions on its First Amendment rights. Following the approach of this Court in Hall v. Board of Commissioners of Mobile County, Alabama, 681 F.2d 965 (5th Cir.1982), and Shanley v. Northeast Independent School District, 462 F.2d 960 (5th Cir.1972), the trial court permanently enjoined the prior clearance rule as unconstitutionally vague in that it set no guidelines for, or restrictions on, the superintendent's exercise of his power. The court upheld the once-a-year rule, however, stating that the Federation had failed to show that the restriction was unreasonable.

On appeal, defendant contends that reversal is required by the Supreme Court's intervening decision in Perry Educational Association v. Perry Local Education Association, --- U.S. ----, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), in which the Court held that the internal school mails of Perry Township were not public fora and access to them might therefore be regulated by the state so long as the regulation of speech was reasonable in light of the purpose that the mail system served. We find the school mail system at issue here to be what the Court in Perry called a "limited public forum by designation." See Perry, --- U.S. at ---- and n. 7, 103 S.Ct. at 955 and n. 7, 74 L.Ed.2d at 805 and n. 7. The standard of First Amendment review in such fora mandated by Perry in no way differs from that developed in prior decisions of this Court and the Supreme Court and employed by the court below. Applying that standard, we affirm the district court's injunction of the prior clearance rule but vacate and remand for further fact-finding as to the once-a-year recruitment rule.

Background

On September 9, 1980, the Board of Trustees of Ysleta Independent School District adopted "Policy GCQDA," a set of guidelines defining the rights of employee organizations registered with the Superintendent of the District to the use of school facilities, including the internal mail system. ¹ The relevant portion of this policy, section GCQDA(3), states:

Inter and IntraSchool Mail may be used by the organizations when such use does not interfere with school use as determined by the Superintendent and/or principal, and provided all questionnaires and/or materials are submitted to the Superintendent prior to distribution to school personnel through the school mails.

On the same date the Superintendent of the Ysleta School District promulgated a regulation in support of Policy GCQDA. Regulation GCQDA-R states in relevant part:

Organizations may put recruitment literature in all employee mailboxes once at the beginning of each school year. Thereafter, organizations may only use the school mail to communicate with their respective membership.

In September 1980, having previously complied with the filing requirements necessary to obtain the organizational rights outlined in Policy GCQDA, the Federation formally applied for and was granted these rights. Two months later, Superintendent Charles Benson wrote to Harry Stone, President of the Federation. In his letter, Superintendent Benson stated that he had received a copy of the Federation's Bulletin (apparently for his review), that he felt it did not accord with his interpretation of school policy on a particular issue, and that under the terms of Policy GCQDA he was authorized to prevent distribution through the school mails of any material that he felt did not accord with school policy. The Superintendent took no further action with regard to the offending literature.

About a year later Stone wrote a letter to the President of the Board of Trustees requesting that the Board reconsider its recent reduction of the supplemental pay of special education teachers. Copies of this letter, together with Federation membership application forms, were sent, via the United States mail, to special education teachers at various campuses of the Ysleta Independent School District. ² The Federation did not submit this correspondence to Superintendent Benson before posting it. At that time the Federation had already exhausted its once-a-year opportunity to distribute recruitment material in all employee mailboxes.

As a result, Superintendent Benson notified Stone by letter that the Federation's organizational rights under Policy GCQDA were temporarily suspended because the letter and attached membership information violated both the "prior review" rule of Policy GCQDA and the once-a-year rule of Regulation GCQDA-R. Following up, Benson sent a memo to all district principals stating that the Federation was not entitled to use the school mail system, bulletin boards, public address system, or school facilities. Deprivation of organizational rights under the Policy also meant that the Federation would not be eligible for employee payroll deduction of dues and that Federation officers could not obtain "release time" for its business purposes. Neither hearing nor opportunity to respond to the charges was afforded the Federation before the termination of the rights granted under the Policy. When Stone sought an audience with the Board to try to reverse the Superintendent's action, he was informed by Benson that the matter would be discussed at the Board meeting on October 27th--a date well past the deadline for teachers to elect to pay dues through payroll deduction. On September 22, the Federation filed suit in federal court challenging both the policy and the regulation.

At the October 27th hearing, the Board determined that although the Superintendent had acted correctly in determining that the Federation had violated the terms of Policy GCQDA(3) and Regulation GCQDA-R and depriving the Federation of organizational privileges, the period of suspension of privileges had been sufficient punishment. Accordingly, the Board restored the Federation's organizational rights.

In federal district court the Federation challenged both Policy GCQDA(3) and Regulation GCQDA-R as facially unconstitutional restraints on speech. Applying the analysis of Hall and Shanley, the trial court permanently enjoined Policy GCQDA(3) as unconstitutionally vague but upheld the once-a-year rule. On this appeal, the defendant school district challenges the trial court's injunction of the prior clearance rule, while plaintiff Federation challenges the court's affirmance of the once-a-year recruitment restriction.

The Status of the Ysleta School Mail System under Perry

"The First Amendment's guarantee of free speech applies to teachers' mailboxes as surely as it does elsewhere within the school ... and on the sidewalks outside." Perry, --- U.S. ----, ----, 103 S.Ct. 948, 954, 74 L.Ed.2d 794, 804 (citations omitted). However, the federal courts have always recognized that in the school context judicial respect for the free exercise of First Amendment rights by teachers and students must be tempered by a recognition that school administrators have broad latitude in formulating and administering regulations to promote the safety and order necessary to the educational process. See Hall, 681 F.2d at 967-68.

In analyzing the regulations at issue here, we are guided by the Supreme Court's recent and comprehensive discussion in Perry of the standard by which to evaluate limitations on the right of access to the internal mail system of a public school. Perry sets up an analytical scheme in which public property is divided into two types: that property which by tradition or designation is a "public forum" and that which is not. See, --- U.S. at ---- - ----, 103 S.Ct. at 954-55, 74 L.Ed.2d at 804-05. The internal mail system of a public school is not a public forum by tradition, the Court held. Id. --- U.S. at ----, 103 S.Ct. at 955, 74 L.Ed.2d at 805. It may, however, become a public forum "by designation" if the school opens the system for use by the public, or become a limited public forum by designation if the school opens it for use by certain groups or for the discussion of certain subjects. Id., note 7.

Although a state is not required to

indefinitely retain the open character of [designated public forums], as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time,...