June 1, 2009
On June 18, 2009, the California Supreme Court issued a long-anticipated decision upholding the right of school districts to exclude candidate endorsements from school mailboxes. (San Leandro Teachers Association v. Governing Board of the San Leandro Unified School District (June 18, 2009) 2009 WL 1688379.)
Factual and Procedural Background
On two consecutive days in October 2004, the San Leandro Teachers Association (SLTA) placed newsletters in internal faculty mailboxes located at schools in the San Leandro Unified School District. The first newsletter named two SLTA-endorsed school board candidates, referred to SLTA’s campaign efforts, and urged further volunteer efforts by unit members.The second newsletter urged members to “volunteer to phone or walk in support of our endorsed School Board Candidates.” Both newsletters were produced at SLTA’s expense and placed in the mailboxes by SLTA volunteers during nonwork hours.
The Assistant Superintendent wrote to the president of SLTA, advising him that the union was prohibited by Education Code section 7054 from using school district mail facilities to distribute materials containing political endorsements, and that the district would not allow SLTA access to faculty mailboxes for such distributions. Section 7054 prohibits the use of “school district ... funds, services, supplies or equipment” for urging the support or defeat of political candidates or ballot propositions.
A month later, SLTA filed an unfair practice charge with the Public Employment Relations Board (PERB), alleging the district violated the Educational Employment Relations Act (EERA) by denying SLTA use of the mailboxes to distribute union newsletters with political endorsements. The unfair practice charge was dismissed by a PERB agent, and the dismissal was upheld by the PERB itself. An earlier PERB decision had held that a school’s internal mail system amounted to “services” or “equipment” within the meaning of section 7054.
In September 2005, SLTA filed a petition for peremptory writ of mandate in superior court, seeking an order that the district “cease and desist” enforcing its policy regarding distribution of political materials in school mailboxes. The trial court granted the petition in May 2006, and the district appealed. In August 2007, the First District Court of Appeal reversed the trial court’s decision, concluding that (1) section 7054 compelled the district’s policy, and (2) section 7054 and the policy were constitutional. SLTA sought review in the California Supreme Court.
The Supreme Court’s Analysis
The Supreme Court affirmed the Court of Appeal’s decision, but issued a narrower holding. The Court addressed the statutory and constitutional considerations separately.
The parties disagreed as to whether school mailboxes were “services” or “equipment” for purposes of section 7054. Because neither term is defined in the statute, the Court turned to the legislative history of section 7054 in an effort to discern legislative intent. The statute was enacted in 1977, in a more limited form. It initially provided that district funds, services, supplies, or equipment may not be used to urge the passage or defeat of a “school measure of the district, including, but not limited to, the candidacy of any person for election to the governing board of the district,” subject to statutory exceptions. One exception appeared in former Education Code section 35174, which permitted a school district governing board or any member of the board to “prepare or disseminate information or … make public or private appearances or statements for the purpose of urging the passage or defeat of any school measure of the district.” The Court in San Leandro described former section 35174 as creating “a large loophole” in the general rule.
In 1995, section 35174 was repealed and section 7054 was amended to more expressly incorporate the principle that “in a democratic society, the use of public funds in election campaigns is unjustified and inappropriate.” The Court noted references in the legislative analysis to “‘materials produced with taxpayer monies,’ which school mailboxes clearly are.” The Court concluded the “broad term ‘equipment’ was intended to encompass mailboxes specially constructed at taxpayer expense to serve as a school’s internal communication channel, which one group may not use to its exclusive political advantage.”
The Court also held that its interpretation of section 7054 is not inconsistent with the EERA’s guarantee of a “right of access” for employee organizations “to areas in which employees work, the right to use institutional bulletin boards, mailboxes, and other means of communication, subject to reasonable regulation.” (Government Code section 3543.1(b).) Reading the two statutes together, the Court concluded a regulation banning candidate endorsements pursuant to section 7054 “is a reasonable regulation pursuing a legitimate statutory objective” and “would not unduly limit a union’s statutory right of access.”
The Court emphasized the “narrowness of the holding.” It did not determine that school districts are compelled to exclude such endorsements from school mailboxes, only that they may lawfully adopt regulations to exclude them. Moreover, the holding addresses only literature that urges the support or defeat of a political candidate, not union literature that urges members to become involved in the political process or informs them how to do so. The Court declined to consider whether literature endorsing or opposing ballot propositions, rather than candidates, could likewise be prohibited. However, because section 7054 treats both types of political endorsement equally, we think it is likely the Court, if faced with that issue, would come to a similar conclusion about literature addressing ballot propositions.
The Constitutional Question
The Court next analyzed the district’s policy under the free speech guarantees of the California Constitution and the First Amendment to the U.S. Constitution. First, the Court determined the district’s mailboxes are not a “designated public forum” opened by the district by policy or practice for “indiscriminate use by the general public.” The district grants only selective access to the mailboxes, and earlier U.S. Supreme Court precedent held school district mailboxes were a nonpublic forum. (Perry Education Association v. Perry Local Educators’ Association (1983) 460 U.S. 37.) Accordingly, the district could impose viewpoint-neutral regulations on the subject matter of the materials placed in the mailboxes. Prohibiting candidate-endorsement literature, the Court determined, “is such a viewpoint-neutral regulation.”
SLTA argued that the California Constitution required a different and more favorable analysis of its free speech claim, and the Court recognized the state “liberty of speech clause has been interpreted more broadly than the First Amendment in several areas.” However, the Court declined to adopt the analysis urged by SLTA and its amici curiae, holding that under either the First Amendment or the state Constitution, the district’s policy was not an undue restriction on political speech. The Court also noted SLTA’s “numerous alternative channels with which to communicate its views to its members.”
Impact on School Districts
Significantly, the Court upheld school and community college districts’ right to regulate the materials placed in employee mailboxes within the parameters of section 7054; it did not hold that districts must regulate those materials in the manner that led to this litigation. Unions are not automatically prohibited from placing in employee mailboxes literature that endorses a particular political candidate. Districts may, however, adopt regulations (e.g., in the form of board policies) that prohibit mailboxes from being used for such purposes.
This narrow ruling appears to be at odds with the strong proscriptive language of section 7054, which imposes criminal sanctions for violating its provisions. The Court did not address how its holding that districts may, but need not, impose these restrictions on the use of mailboxes can be harmonized with the statutory prohibition on the use of district “equipment” for political purposes.
The Court did not address the issue of whether such regulations are negotiable. However, there was no indication in the opinion that the district had negotiated its policy, and both the PERB and the Court upheld its right to implement the policy. We advise school and community college districts to work closely with legal counsel to assess the negotiability of this topic, since existing collective bargaining agreements may restrict employers from imposing limitations on the distribution of political materials in unit member mailboxes. Policies and agreements should be carefully reviewed in light of this important decision.
Finally, it is unclear whether this decision has any impact on county offices of education. Section 7054 expressly applies only to school districts and community college districts. While the omission of county offices from the statute seems anomalous, it must be presumed that the Legislature understood the effect of limiting the section to school and community college districts.