UNITED STATES POSTAL
SERVICE POSTAL INSPECTOR P.O. BOX 40176 Jacksonville, Florida 32203-0176 OUR REF: JMD:el-0176 DATE October 15, 1981 SUBJECT: Private Express Statutes
CASE NO:401-105-1-0048-AR(2) TO: [Superintendent] Osceola County School Board P. 0. Box 1948 Kissimmee, FL 32741 Dear Sir: The following determination has been
made regarding material,
other than the school board business, which is transported and
delivered by the Osceola County School Courier Service. This
determination has been based upon the Private Express Statutes,
Section 310 and 320, legal decisions based on these statutes, and
the information provided by the school board. Teachers Union
material The Osceola County School Board may not
receive or carry the
union-origin material unless the appropriate postage is paid
thereon and there is compliance with other provisions of Section
310.2(b). The Letter of the Carrier exception in Section
310.3(b)
is not applicable because the letters do not relate to the
current
business of the carrier, viz the Board. Rather, the letters
relate to the current business of the unions with which the Board
deals. The Private hands without compensation exception
in
Section 310.3© does not apply in a situation in which a
business
or other economic relationship exists between the carrier and the
person for whom the letters are carried, so that the carriage
would not be performed but for the relationship. For your information and reference, I
have enclosed copies of
three previous legal decisions pertaining to school board courier
operations. Please advise me of the school board's intentions in
this matter. Your cooperation and assistance has been greatly
appreciated. Sincerely, J. M. Dormuth Postal Inspector Enclosures [M. Johnston, Article in FSBA Educator] -MONITOR THE DISTRICT COURIER SERVICE- Well, the other shoe has fallen! On April 20, 1988 the
United States Supreme Court decided a California case that your
school board negotiators have been patiently awaiting. Several
Florida school districts may still have a problem with how they
operate their school courier service. If your district
transports union materials to employees, then you had better
consider this case carefully. In Regents of the University of California, v.
Public
Employment Relations Board, ET AL., (56 United States Law
Weekly
4334) the Supreme Court has ruled that the provision in
California's equivalent of our public employee relations act,
which alludes to the "promotion of harmonious labor relations,"
does not overcome the Federal Private Express Statutes and allow
public employers to freely transport union letters and printed
materials. The California University system refused to transport
union
materials and California's Public Employment Relations Board
ruled that the refusal was an unfair labor practice. The Court
of Appeal affirmed and that state's Supreme Court denied
review. This case has been several years developing and has been
settled along the lines that several of our school board
attorneys anticipated and warned us about as early as in
1974. FSLRS started our file on the case in July 1976 with a December 19, 1974 opinion from the Assistant General Counsel
of
the United States Postal Service. In that opinion the Postal
Service was noticing the Brevard County School Board of the
following: "The School Board of Brevard County Courier Service
may not receive or carry the union-origin material unless
appropriate postage is paid thereon and there is compliance with
the other provisions of section 310.2 (b)." Brevard is not one of
the districts with a problem, it stopped transporting such
materials. On July 28, 1976 another opinion from the General Counsel
noticed the Detroit Public Schools that "the transporting of
union materials within the district's courier system was a
criminal violation of the Private Express Statutes.
Violations
of the Statutes are punishable by fine, imprisonment, or both.
The Statutes may also be enforced by means of an injunction [and]
violators may be required to pay to the Postal Service the
postage it did not receive because of the violations." The
dispute that has finally resulted in the decision in that
California case was particularly well defined in that 1976
opinion. That first shoe was dropped in October 1981 when Florida
school districts received the following notice from the Postal
Inspector in Jacksonville, Florida: "The ... County School Board
may not receive, carry or deliver the union origin material
unless the appropriate postage is paid thereon .... The
Letters
of the Carrier Exception in Section 310.3(b) is not
applicable
because the letters do not relate to current business of the
carrier, viz the Board. Rather, the letters relate to the
current business of the unions. The Private Hands Without
Compensation Exception in Section 310.3© does not apply
in a
situation in which a business or other economic relationship
exists between the carrier and the person for whom the letters
are carried." ©1988 Florida School Labor Relations Service, Inc. Michigan Association of
School Boards 421 W. KALAMAZOO STREET,
LANSING, MICHIGAN 48933 (317)
371-5700 October 22, 1980 Mr. Robert Barrett Brevard Co. School Board 1260 S. Florida Ave. Rockledge, Florida 30454 Dear Mr. Barrett: Please find enclosed a copy of an Advisory
Opinion regarding union use of
school district mail systems. After a rather thorough search of
state and
federal legal sources I was unable to locate any reported
litigation on this
issue between the Detroit Federation of Teachers and the Detroit
Board of
Education. I also called attorneys for the Detroit Board of
Education who
advised me, that to the best of their knowledge, no litigation
exists on this
matter. Please advise us if you discover anything
additional. Sincerely, MICHIGAN ASSOCIATION OF SCHOOL
BOARDS Kevin S. Harty Labor Relations Consultant KSH:jsm Enclosure USE OF SCHOOL MAIL BY UNIONS OF DOUBTFUL
LEGALITY Negotiations Management has been
able to obtain a copy of a recent advisory from
the U.S. Postal Service which states that, under certain
conditions, the use of the
school board mail service by an employee union is illegal. Since
such a ruling could
have an obvious and significant impact on labor relations in
public schools, the full
text of the advisory is reprinted below. This responds to your request for an Advisory Opinion as
to
whether the Detroit Public School Board may legally carry certain
materials, not bearing postage, for the unions which represent
its
employees. Facts: As represented by you, the facts are as
follows: (1) The Detroit School Board, hereafter the Board,
delivers
certain materials, hereafter "union" materials, not bearing
postage, sent by 14 unions to their members, and from the members
to the unions. The practice is based upon a written Board policy
and is also included in the current collective bargaining
agreement between the Board and the Detroit Federation of
Teachers, hereafter DFT, one of the 14 unions. We were told that
Article XXIII, of the July 1, 1975 - July 1, 1977 agreement with
the DFT provides that: "The Board shall designate a school in
proximity to the Federation office (or the Federation office)
which may be used by the Federation as a pickup stop for the
purpose of sending and receiving authorized material." (2) The unions make no "monetary payment" to the
Board for
the service. You also stated that no ". . . other direct legal
consideration has been received from any of our unions in
exchange
for the mail service rendered other than so-called good will. In
a sense, of course, service we provide is, in part, payment for
service our employees render to us." (3) The delivery service is performed in connection
with
the Board's "internal mail system," which is staffed by regular
employees of the Board who make daily scheduled pick-ups at the
various schools and at other locations. The "union" materials
may
be picked up by the Board's employees at the office of a given
union, or at the school system's central warehouse. In addition,
materials may be picked-up at a given school for delivery to
another school. (4) The "union" materials are delivered to the
appropriate
building and placed into the "mail box" [1) We assume this is not a
mail receptacle utilized by the Postal Service for the delivery
of mail.] of
the individual teacher, administrator, or other person for whom
an
item is intended. (5) In the substantial majority of cases, the
materials are
in envelopes or other containers bearing the name of the
individual to whom the material is to be delivered. [2) In some other
cases, the materials may be directed to a title.] (6) The following are examples of materials
distributed for
the unions: a. A six page "Newsletter" issued by the Detroit
Association of Educational Office Employees (DAEOE) which is
enclosed in a specifically addressed envelope. The first page
bears the salutation "Dear Members" and contains THE PRESIDENT'S
MESSAGE, namely, general remarks about the need to cooperate in
the resolution of school problems; designation of members of the
organization's negotiating team; assurances that the team will
seek the best possible agreement; gratitude for the work done by
committee members; and a reminder about the monthly meetings of
the organization's Board of Directors. Other pages contain
biographical sketches of the negotiating team; a REPORT OF THE
EXECUTIVE SECRETARY; a cartoon; and announcements regarding a
variety of personal matters; illnesses, recoveries, deaths,
retirements, and engagements. b. A one page item from DAEOE, captioned THIS IS AN
ORDER,
addressed to "Secretary" at each school location, from the
Executive Secretary of DAEOE, directing that (1) no employees
report to-work earlier than 7:30 a.m., and (2) no clerical
employees perform a school's banking duties. c. A one page item from DAEOE, addressed to each
member in
a separate envelope, announcing the organization's 1975 Christmas
Part. d. A one page item on the letterhead of the
Organization of
School Administrators and Supervisors (OSAS), placed in envelopes
and addressed to each of its members. It contains the salutation
"Dear Colleague." It transmits the recommendations of the OSAS
executive board for contract negotiation proposals; and announces
a forthcoming membership meeting and the agenda thereof. c. A one page item on the letterhead of OSAS, placed
in
envelopes and addressed to each of its members. It contains the
salutation "Dear Colleague." It welcomes the recipients to the
beginning of the school year; and states that the OSAS position
will be presented in every case that concerns administrators;
advises recipients of the manner in which insurance questions are
handled; and reminds them of the deadline for medical
checkups. f. Free copies of an eight page item issued by the
DFT in
newspaper format, entitled THE DETROIT TEACHER, which are made
available to the Board for distribution to school officials. THE
DETROIT TEACHER contains articles on a variety of subjects:
violence in city schools; a student code of conduct; the
resolution of a grievance; firms on the AFL-CIO boycott list,
announcements of conferences, retirements, and other items. g. A one page item sent by the DFT with the notation
PLEASE
POST, and captioned NOTICE OF ELECTION OF DELEGATES TO 1975
MFT
and AFT CONVENTIONS. They are sent in bulk to each school and
they are then placed into the "mail boxes" of the individual
teacher either by the school secretary or by the union's building
representative. We were not told whether they were directed to a
specific individual or title. This item contains a chronology of
steps to be taken in the course of the
elections; excerpts from
the by-laws of the DFT; and a notice regarding a run-off election
for the position of vice-president. h. A one page item on the letterhead of the DFT
addressed
to the "Building Representative" (one copy to each school). It
requested the building representative to call a membership
meeting
to select priority items for the 1975-76 contract negotiations
and
transmitted previous contract proposals. I. A one page announcement sent by the DFT. It has
the
notation, POST and CIRCULATE, and related to a social affair and
lottery. It was delivered to the unions' building
representatives. j. A one page announcement sent by the
DFT. It has the
notation PLEASE POST and contained the agenda for a
membership
meeting. It was delivered to the Union's building
representatives. Question: May the above described materials,
not bearing
postage, be carried by the Detroit School Board for the
14 unions
which represent the employees of the Detroit Public Schools? Discussion: The Private Express Statutes,
codified in Title
39, U.S. Code, §§601-606 and Title 18, U.S. Code, §§1693-1699 and
1724, make it generally unlawful for any person other than the
Postal Service in any manner to send or carry a letter on a post
route or in any manner to cause or assist such activity. The
Postal Service adopted the enclosed Substantive Regulations
Relating to the Private Express Statutes, codified
in Parts 310
and 320 of Title 39, Code of Federal Regulations, to implement
the
Private Express Statutes. Pertinent sections are cited
below. The word "letter" is defined in § 310.1(a) as a message
directed to a specific person or address and recorded in or on a
tangible object. . . ." A number of exclusions are set out in
§31O.1(a)(7)(I) - (vii). A
"message" is defined as any
information or intelligence that can be recorded by a variety of
means including written or printed characters. Section
310.1(a)(2) and (a)(4). The term "post route" includes, among
other things, public roads and letter carrier routes established
for the collection and delivery of mail. Section 310.1(d)(1) -
(5). The carriage of the "union" materials takes place over post
routes. Accordingly, the matters requiring consideration are:
(1)
do the enumerated items constitute "letters" and (2) if so, do
the
circumstances of their carriage outside the mails fall within one
of the exceptions to the prohibitions of the Statutes and
regulations. [3/ A suspension of the Statutes for the carriage of
data processing materials to and from data processing centers
within specified time
periods, as set out in Part 320. is inapplicable in this
case.] Item a is designated as a "Newsletter." Newspaper or
periodicals are excluded from the definition of letter by
§310.1(a)(7)(iv). Accordingly, we must determine whether the
item
in question is in fact a newspaper or periodical.[4/ The
caption of
an item is not dispositive of its nature. See Advisory Opinion
PES 75-36.] As we pointed out in Advisory Opinion PES 76-5, the phrase
newspaper and periodical is not defined in the
Private Express
regulations. In interpreting, the phrase, we believe it proper
to
resort to the usually understood meaning of newspaper and
periodical. In attempting to ascertain the usually understood
meaning, we believe that we may examine the meaning of such words
as contained in the dictionary, postal regulations and prior
Advisory Opinions. A newspaper is a paper printed and distributed
at stated
intervals, usually daily or weekly, to convey news, advocate
opinions, etc. See newspaper, Webster's New
International
Dictionary, Second Edition, Unabridged. A periodical is a magazine or other publication
appearing at
stated or regular intervals. See periodical, Webster's New
International Dictionary, Second Edition, Unabridged. A
magazine is a periodical containing miscellaneous
papers,
especially critical and descriptive articles, stories, poems,
etc., designed for the entertainment of the general reader. See
magazine meaning 4b, Webster's New International Dictionary,
Second Edition, Unabridged. In this case, the "Newsletter" is not issued at regular
stated intervals. Rather, it is issued sporadically with no
prescribed frequency. In our opinion, for the purposes of
§310.1(a)(7)(iv), a newspaper or periodical must be issued at
regular and stated frequencies. Accordingly, it is our further
opinion that the "Newsletter" is not a newspaper or a periodical
within the ambit of §310.1(a)(7)(iv).[/5
It is not
necessary to
determine whether the "Newsletter" contains the types of material
usually
contained in a newspaper or periodical as set forth in the
previous quotations
from Webster's New International Dictionary, Second
Edition, Unabridged.
Neither is it necessary, in this case, to look to the Postal
Service's mail
classification regulations for assistance in determining the
question whether
the "Newsletter" is a newspaper or periodical. Cf. Advisory
Opinions PES 75-36 and PES 76-5.] Rather, the
"Newsletter" contains identical
reports on different topics which are stapled together.
Identical
reports (messages) directed to more than one specific person or
address are separate letters. Section 310.1(a)(6). The book exclusion in §310.1(a)(7)(v) is not applicable
since
the at least 24 bound pages of which 22 or more are printed
requirement is not met. Item b is directed to persons by title, i.e., "Secretary"
at
each school location. Items b, c, d and c are directed to
specific persons. These items are clearly letters. Item f. The free copies of THE DETROIT
TEACHER are intended
for the School Board, and not for persons in their capacities as
members of the unions. The union members receive their copies by
means other than the Board's internal mail system. Even if the
"Detroit Teacher" were a letter, the Board could deliver the free
copies to the Schools pursuant to the Letters of the carrier
exception in §310.3(b). Items g, h and j, clearly have the same characteristics
as
items b through e.[6/ Item g, like item f. is
apparently not directed to
particular named individuals or officials by title. This item
is, however. directed to particular addresses and as such
qualifies under the address
requirement in the regulations.] These items are to be
posted. We
have previously held that an item which meets the definition of a
letter that is intended for posting, retains its status as a
letter. See Advisory Opinions PES 74-15 and PES 76-5. Item I gives rise to a separate issue. The purpose of
the
Private Express Statutes is to protect postal revenues. Section
1302 of Title 18, U.S. Code, makes it illegal, subject to fine
and/or imprisonment, to knowingly deposit in the mails, or to
send
or deliver by mail, any letter which concerns lotteries. Matter
which concerns lotteries is also nonmailable. Title 39, U.S.
Code, §3001(a). Item I is clearly an announcement of a lottery,
i.e., a promotion which, upon payment of a consideration of
$1.00,
offers a prize - in this case a weekend for two in Las Vegas or
Toronto - that is dependent upon chance. Hence, item I is
nonmailable and its deposit into the mails would violate
§1302. Because item I predominantly concerns a lottery and there is
nothing to intimate that the lottery material was included in it
to avoid compliance with the Private Express Statutes, it is our
opinion that item I may be carried outside the mails without the
payment of postage.[7/ Item f. THE DETROIT TEACHER,
contains a reference to
a lottery, at page 6. Inasmuch as issues of THE DETROIT TEACHER
with which we
are concerned are being carried pursuant to the Letters of the
carrier
exception, we need not consider the effect of this reference in
this Advisory
Opinion. We do wish to note, however, that a letter which is not
wholly or
substantially devoted to a lottery is not necessarily eligible
for the
treatment accorded to item I, especially if such treatment would
result in an
avoidance of the Private Express Statutes by materials which
would otherwise be
subject to the Statutes.] Because (1) they are letters, (2) no exclusion is applicable
to them, and (3) the data processing suspension is not
applicable,
the further question is whether any of the exceptions in
§310.3(a)
- (e) is applicable to items a through e, g, h and j. The Cargo exception in §310.3(a) is not applicable
because
the letters do not accompany and relate to any cargo. The Letters of the carrier exception in §310.3
(b) is not
applicable because the letters do not relate to the current
business of the carrier, viz, the Board. Rather, the letters
relate to the current business of the unions with which the Board
deals. The Private hands
without compensation exception in §310.3©
permits the private carriage of letters if no charge for the
carriage is made by the carrier. For the reasons noted below,
the
exception is not applicable in this case. The delivery service performed by the Board is referred
to in
at least one union agreement and, in any event, appears to be an
established benefit for all of the unions whether or not set out
in their collective bargaining agreements. Terms and conditions
of employment include not only those specifically written into
agreements, but also those which stem from the employment
relationship and are mutually accepted by labor and management,
even though not set out in agreements. Accordingly, the delivery
services rendered for the union--clearly constitute a term or
condition of employment, in the form of a consideration to the
unions. In return for this and other considerations, the Detroit
School Board receives legal consideration from the unions,
namely,
the services of the persons whom the unions represent, and also
the good will of the unions. Accordingly, we believe that the
element of consideration is present in this case. Moreover, the Postal Service has consistently held that the
Private hands without compensation exception does not
apply in a
situation in which a business or other economic relationship
exists between the carrier and the person for whom the letters
are
carried, so that the carriage would not be
performed but for the
relationship. In this case, the Board would not carry the
unions'
letters but for the economic relationship which exists between
the
unions and the Board. Accordingly, it is our opinion that the
Private hands without compensation exception is not
applicable.
See also PES 74-4 and 76-12. The Special messenger exception in §310.3(d) is not
applicable because this exception is limited by its terms to the
use of a messenger for the particular occasion
only, on an
infrequent, irregular basis, when not more than 25 letters are
involved. It is further limited to instances in
which the messenger does not operate
regularly between fixed points, contrary
to the facts of this case. The Carriage prior or subsequent to mailing
exception in
§310.3© is obviously inapplicable because the letters in
question
do not enter the mad stream at some point between their origin
and
destination. Decision: Those union materials which constitute
letters, as
set out above, may not be carried without payment of postage by
the Detroit School Board for the unions which represent the
school
system's employees. ### SCHOOL MAIL In a dispute that could affect schools across the
country,
the U.S. Supreme Court heard attorneys for opposing teacher
unions
debate who can use an Indiana school district's internal mail
system. Attorneys for the teacher unions told the justices they
could
choose to either limit use of school mail to the incumbent union
or throw the system open to both the incumbent union and rival
organizations. A third party not present at the oral arguments, the U.S.
Postal Service, has urged the justices to rule against both of
the
teacher groups. Postal authorities, in their friend-of-the-court
brief, claimed federal law bars any union from using
intra-district mail systems without paying proper postage (ED,
March
24). The First Amendment case before the justices traces back
to
1977, when the Perry Education Association (PEA), affiliated with
the National Education Association (NEA), won a union election
against the independent Perry Local Educators Association
(PLEA). Mail Monopoly - The Bargaining contract negotiated in
1978
between PEA and the Perry, Ind., school district allowed only PEA
to place messages in teacher mailboxes and to send letters to
teachers in the 13-school system via the district's internal
mail. PLEA sued the school district the following year to gain
access to the mail system, but was turned down by a federal
district court. That ruling was reversed last year by the U.S.
7th Circuit Court of Appeals, which said the restriction served
"no discernible state interest.19 In oral arguments, Robert Chanin, NEA general counsel,
argued
that dual access to the mail system "is the very antithesis of
labor peace." Contrary to PLEA's claims, said Chanin, PEA was not
seeking to gain an edge over its rival by getting a monopoly on
the mail system. Both unions have equal access during election periods, he
said. But since PEA won the election, it's entitled to sole use
of the mails to carry out its collective bargaining duties, he
said. Skeptical Justice - Chanin claimed the mails were
used only
to tell teachers about such things as administrative actions and
contract grievances. Justice Thurgood Marshall, however, was
skeptical of that claim, wondering if the mails weren't also used
to convince teachers of "what a stinker the competing union
is." Likewise, Justice William Brennan asked PLEA attorney
Richard
Zweig if that union also wouldn't use the mails to criticize the
opposition. Zweig said the PLEA would probably take Positions
contrary to those of its rival, but said there's no evidence that
such use of the mails would disrupt labor relations. Instead, said Zweig, the ban on PLEA's use of the mails
significantly restricts its free speech rights. Zweig said there
were no effective alternatives to the mail system, which he said
has been used in the past by a wide range of non-school
groups. Chanin disagreed, arguing that school mail can only be
used
for official school business. While groups such as the YMCA and
the Cub Scouts have been allowed to use the mails in the past, he
said their messages were about programs for youths, and thus
qualified as school business. The case is Perry Education
Association. PERRY LOCAL EDUCATORS' ASSN. v.
HOHLT U.S. Court of Appeals, Seventh
Circuit (Chicago) PERRY LOCAL EDUCATORS'
ASSOCIATION, et al. v. HOHLT. et al., No.
80-1420, June 24,1981 GOVERNMENT EMPLOYMENT School teachers - Insurgent
union Access to internal
communications facilities - First and Fourteenth Amendments
>51.763 >100.02 School district violated
rights of members of insurgent union
to free speech and equal protection of laws guaranteed by First
and Fourteenth Amendments to U.S. Constitution when it executed
collective bargaining contract in which it guaranteed incumbent
union access to teachers' mailboxes and use of inter-school
delivery system and promised to deny same right of access to any
other "school employee organization," despite contentions that
discrimination is justified by incumbent union's legal duties to
teachers, which require it to have efficient method of
communicating with teachers, and that restriction is necessary to
ensure labor peace in school system. Contract does not limit
incumbent's use of mail system to messages related to its special
duties and does not prohibit use by outside organizations that
have no special duties to teachers. even if district excluded all
private communications except those relating to incumbent's
special duties, such exclusion would be unconstitutional because
it would further no discernible state interest; district has
cited
no specific interference with school operations likely to result
from insurgent's use of mail system, and none can be inferred;
any
discord insurgent's communications may cause cannot "materially
and substantially" disrupt teaching process. Appeal from the U.S. District
Court for the Southern District
of Indiana. Reversed. Lawrence M. Rueben,
Indianapolis, Ind., for appellants. Richard J. Darko and Louis
H. Borgmann, Indianapolis, Ind.,
for appellees. Before FAIRCHILD, Chief
Judge, WISDOM, Senior Circuit Judge,-
and CUMMINGS, Circuit Judge.[Honorable John Minor Wisdom, Senior Circuit
Judge for the United States Court of Appeals for the Fifth
Circuit, is sitting
by designation.] Full Text of
Opinion WISDOM, Senior Circuit
Judge: This case requires us to
consider the constitutionality of a collective bargaining
agreement between a teachers' union and a school board that both
permits the union to use the school district's internal mail
system and compels the school district to deny that right to
competing unions. The plaintiffs, an insurgent union and two of
its members, contend that their exclusion from the school mail
system violates their first and fourteenth amendment rights. The
district court disagreed. We reverse. I. The facts, as they appear
in the parties' pleadings and
affidavits, are not in dispute. The Metropolitan School District
of Perry Township in Marion County, Indiana, operates a public
school system made up of thirteen separate schools. Each school
building is equipped with a set of mailboxes or mail slots each
labeled with the name of a teacher at the school. Inter-school
delivery by school employees permits messages to be delivered
rapidly to every teacher in the district. The main function of
this internal mail system is to transmit official messages among
the teachers and between the teachers and the school
administration. That is not its only function, however, for the
present collective bargaining representative of the teachers in
that school district, the Perry Education Association (PEA), also
has access to the system for its own purposes. Until 1978 the school
district evidently had no firm policy
on the use of the internal mail system by teachers' unions; both
PEA and a minority union, the Perry Local Educators Association
(PLEA), had access at least to the mailboxes, if not to the
inter-school delivery system. In 1977, however, PLEA challenged
PEA's
status as de facto bargaining representative of the Perry
Township
teachers by filing an election petition with the Indiana
Education
Employment Relations Board. PEA prevailed in the election and
was
formally certified as exclusive bargaining representative. In
anticipation of continuing opposition from PLEA, PFA negotiated a
labor contract designed to cement its status as bargaining
representative. In that contract, the school board (1)
guaranteed
PEA's access to the teachers' mailboxes, (2) permitted it to use
the inter-school delivery system to the extent that the school
district incurred no extra expense by such use, and (3) promised
to deny those rights to any other "school employee organization"
-
a term of art defined by Indiana law to mean "any organization
which has school employees as members and one of whose primary
purposes is representing school employees in dealing with their
employer".(1)
Effective in July
1978, the contract was renewed with
these same provisions upon its expiration in 1980, and it is
presently in force. PEA's privilege is
subject to certain obvious limitations.
Because the contractual prohibition extends only to competing
unions, PEA's letters and broadsides are not the only unofficial
communications permitted to flow through the internal mail
system.
Teachers use the system to send purely personal messages. The
school district allows outside organizations to use it with the
approval of any building principal. Local parochial schools,
church groups, YMCA's and Cub Scout units use the system.
Furthermore, the privilege extends only to use of the mail
system;
it does not prevent PLEA from using other school facilities to
communicate with teachers. As with PEA, members of PLEA may post
notices on school bulletin boards (where available); may
distribute written material in the teachers' lounge; may speak
with teachers during luncheon and free periods, may, with prior
approval of the building principal, make announcements on the
public address system; and, apparently, may freely hold meetings
on school property after school hours. Finally, we may assume
for
purposes of this appeal that Indiana law would prevent PEA from
using the mail system during the period immediately preceding an
inter-union election.(2) PLEA and two of its
members filed this action under 42 U.S.C.
§1983 (1976) against PEA and the individual members of the Perry
Township School Board. They contend that their exclusion from
the
internal mail system violates their first amendment and equal
protection rights, and they seek injunctive and declaratory
relief
and damages.(3) Upon cross-motions for summary
judgment, the
district court gave judgment for the defendants. Quoting
Connecticut State Federation of Teachers v. Board of Education
Members, 538 P.2d 471, 481, 92 LRRM 3011 (2d Cir. 1976), the
court
held that "the restrictions placed upon the use of facilities not
open to the general public, designed to transmit communications
of
limited public interest and supplemented by numerous alternative
means of communication by PLEA members are 'so inconsequential
that ... [they] cannot be considered an infringement of First
Amendment rights of free speech' ". Applying rational basis
scrutiny to the plaintiffs' equal protection claim, the court
found, citing Memphis American Federation of Teachers Local 2032
v. Board of Education, 534 P.2d 699. 92 LRRM 2348 (6th Cir.
1976),
that the exclusive access policy was rationally related to the
goal of preserving labor peace within the school
system. From this holding, plaintiffs
appeal. II. The plaintiffs'
constitutional contentions arise from the
confluence of two developments of relatively recent vintage: the
rapid growth of collective bargaining in the public sector in the
last two decades, and the erosion of the notion that public
employment is a "privilege" to which some constitutional
guarantees may be inapplicable.(4)
We therefore have not had
occasion to consider the merits of any similar claims before,(5) and
none of the Supreme Court cases on the constitutional law of
public sector labor relations is directly applicable.(6) Still, the
district court had authority for rejecting the plaintiffs'
claims.
Our research discloses ten cases fairly on point, including two
decided by federal Courts of Appeals, five decided only at the
district court level, and three decided by state appellate
courts.
All but one, a district court opinion, rejected such claims.(7)
Indeed, many of these cases upheld exclusive access policies
considerably broader than the one followed by the Perry Township
school board. For example, the two leading cases, Connecticut
State Federation of Teachers v. Board of Education Members, 538
F.2d 471, 92 LRRM 3011 (2d Cir. 1976) (Connecticut SFT), and
Memphis American Federation of Teachers Local 2032 v. Board of
Education, 534 F.2d 699, 92 LRRM 2348 (6th Cir. 1976) (Memphis
AFT), upheld grants to a majority union of an exclusive right to
use school meeting facilities and bulletin boards, as well as the
internal mail system. We are, of course, not bound
by these cases, and their
reasoning falls to persuade us. We hold that when the Perry
Township school board opens its internal mail system to PEA but
denies it to PLEA, it violates both the equal protection clause
and first amendment as incorporated into the
fourteenth. To help place the issue in
context, we begin by noting that
similar behavior by a private employer subject to the National
Labor Relations Act (NLRA)(8)
would constitute an unfair labor practice. NLRB v. Magnavox Co.,
415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.
2d 358, 85 LRRM 2475 (1974). struck down an employer's rule,
authorized by its collective bargaining agreement, that
prohibited
employees from distributing literature to each other on the
business premises and gave the incumbent union exclusive access
to
in-plant bulletin boards. The Court reasoned that the employees'
right to criticize or to oppose a union, guaranteed by §7 of the
NLRA, implies that they have a non-waive able right effectively
to
disseminate their opinions to other employees while on the
business premises. As a corollary, the union's adversaries must
have " 'equal access to and communication with their fellow
employees' ". 445 U.S. at 326, quoting NLRB v. Mid-States metal
Products, inc., 403, F.2d 702, 705, 69 LRRM 2656 (5th Cir. 1968)
Although Magnavox and the cases following it to date involved
discriminatory bans on leafleting, posting of notices, or meeting
on
company property,(9) the principle
of equal access established in
Magnavox would seem applicable to a discriminatory grant of
access
to an employer's internal communications system.(10) With respect
to communications relating to "mutual aid or protection" within
the meaning of §7 - a term that has been interpreted broadly(11) -
an employer therefore may not open one particularly effective
channel of communication to certain employees or members of one
labor organization and deny it to others. The teachers of the
Perry Township Schools, however, as
employees of a municipality, are not covered by the NLRA,(12) and
the Indiana Education Employment Relations Board, which
administers the analogous Indiana statute governing labor
relations in Indiana public school systems, has ruled that a
school district may, as a matter of state law grant a majority
union the exclusive right to use school facilities to communicate
with teachers. Pike Independent Professional Educators, No.
U-7616-5350 (May 20, 1977).(13)
Of course, we do not sit to judge the
wisdom of that state policy, but only to ensure that it falls
within the limits prescribed by the Constitution. "[T]he First
Amendment is not a substitute for the national labor relations
laws." Smith v. State Highway Employees Local 1315,441 U.S.
463,464, 99 S.Ct. 1826,.60 L.Ed.2d 360,101 LRRM 2091 (1979)(per
curiam). Still, it will not
do to say, as some courts have said when
faced with similar constitutional claims, that because this case
involves the government only in its role as employer, it should
be
subject only to the constitutional restraints that would apply to
a similarly situated private employer - that is to say, none.(14)
That amounts to an argument that state action is not implicated
when the government acts in a proprietary capacity, an argument
that has lost favor in the courts.(15) Indeed, the constitutional
law of public sector labor relations is today a large and
flourishing field. The due process clause limits the
government's
power to fire employees without a hearing,(16) the equal protection
clause limits who may be employed and how employees may be hired
and fired,(17) and the first
amendment places a wide variety of
restrictions on government labor practices. For example, the
government may not forbid its employees to join a union,(18) compel
them to finance political or ideological advocacy by their
collective bargaining representative,(19) refuse to permit teachers
other than union representatives to speak at open school board
meetings,(20) fire employees
solely because they publicly or
privately criticize the government,(21) condition certain types of
employment on affiliation with the political party in power,(22)
refuse employment to members of the Communist Party,(23) require
employees to affirm belief in God,(24)
or require them to
file
affidavits listing the private organizations to which they
belong.(25) Of course, "it
cannot be said that the State has
interests as an employer in regulating the speech of its
employees
that differ significantly from those it possesses in connection
with regulation of the speech of the citizenry in general".
Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct.
1731,
20 L.Ed.2d 811 (1968). Thus, the government's interest in
conducting its operations efficiently will justify such
restrictions on the first amendment rights of its employees as
are
reasonably necessary to that end.(26) Nevertheless, these cases
demonstrate that the first amendment and the equal protection
clause apply with full force to the government in its role as
employer.
A. The first step in
constitutional analysis is to ascertain the
applicable standard of review. The cases that have rejected
constitutional challenges to similar exclusive access policies
did
so largely because they did not scrutinize the schools'
justifications for those policies. Memphis AFT, for example,
held
that such a policy does not implicate the first amendment rights
of the members of the minority union at all. Asserting that the
policy neither regulated "the content or the subject matter of
speech in the schools" nor "censored [nor] promoted a particular
point of view", the court implicitly applied a right/privilege
distinction to hold that because teachers have no absolute right
of access to the mail system, the school board could open it to
some teachers but not others without justification or limitation
under the first amendment. 537 P.2d at 702. By contrast,
Connecticut SFT recognized that an exclusive access policy may
interfere with constitutionally-protected speech by the minority,
but held that such interference does not violate the first
amendment. Observing that the schools' communications facilities
were
not a public forum, that the minority union had alternative ways
to communicate with teachers, and asserting that the minority's
communications were of "limited public interest", the court ruled
that those factors combined to render the interference with the
minority's first amendment rights-de minimus and negligible. 538
F.2d at 482. Equal protection scrutiny was no more exacting.
Because the access restriction did not, in the view of the
Memphis
AFT court, implicate the first amendment rights of the minority
union members or discriminate against a suspect class, the court
held that the exclusive-rights policy had to pass only the
superficial rational basis test. 534 P.2d at 703.(27) With deference, we
suggest that both Memphis AFT and
Connecticut SFT erred by confusing the constitutional standards
applicable to a rule that evenhandedly excludes all private
communications from a particular government facility with the
standards applicable to a rule that grants access to certain
speakers or certain viewpoints and denies access to others. A
challenge by an excluded speaker to the former sort of rule is a
claim for absolute access; a challenge to the latter sort is a
claim for equal access. An imprecise terminology makes it easy
to
confuse the two. Convention has established the term "public
forum" to denote a facility that may not constitutionally be
closed to all private expression, but the absence of a natural
phrase to describe a facility that the government may not open
only to certain speakers or viewpoints has led some courts to use
the same or confusingly similar phrases in that context as
well.(28)
That is unfortunate, for the interests at stake in the two
situations, and hence the appropriate standards of review, differ
greatly. Discriminatory
treatment of speech on the basis of its
content or on the basis of the identity of the speaker usually
requires rigorous scrutiny because it presumptively violates the
first amendment's primary and overriding proscription against
censorship. Censorship, broadly defined as an attempt by the
government to suppress the expression of disfavored points of
view
by private individuals, is a relative concept; it is defined by
reference to the opportunities for expression open to favored or
neutral viewpoints.(29) Contrary
to Memphis AFT, it may easily take
the form of amplifying favored or neutral speech, rather than of
stifling the disfavored. [A]bove all else,
the First Amendment means that
government has no power to restrict expression because of its
message, its ideas, its subject matter, or its
content.... Necessarily,
then, under the Equal Protection Clause,
not to mention the First Amendment itself, government may not
grant the use of a forum to people whose views it finds
acceptable, but deny use to those wishing to express less
favored or more conventional views. And it may not select
which issues are worth discussing or debating in public
facilities. There is an "equality of status in the field of
ideas," and the government must afford all points of view an
equal opportunity to be heard. Once a forum is opened up to
assembly or speaking to some groups, government may not
prohibit others from assembling or speaking on the basis of
what they intend to say. Selective exclusions from a public
forum may not be based on content alone, and may not be
justified by reference to content alone. Police Department v.
Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 33
L.Ed.2d 212 (1972). It is therefore irrelevant whether the Perry
school board's access policy is characterized as discriminatorily
opening a new charmer of communications to PEA or
discriminatorily
closing a preexisting channel to PLEA. The essential issue is
whether the discrimination is justifiable; the same standard of
scrutiny applies in either case. The standard
applicable to this case is a high one. Despite
the sweeping language of Mosley quoted above, other Supreme Court
cases demonstrate that it is not invariably true that the
government may never discriminate among constitutionally
protected
speech on the basis of its content or on the basis of the
speaker,
nor even that all such discrimination must always be scrutinized
with equal strictness. Because a majority of the Court were
unable to agree on any one rationale in some of these cases, it
is
not always easy to determine the appropriate standard of review.
Even interpreting the cases in the way most favorable to the
defendants, however, they require rigorous scrutiny to be applied
here. Although not always made explicit, one of the most
important factors in determining the appropriate standard is the
extent to which a given restriction has the effect of favoring
the
expression of a particular point of view on an identifiable issue
more than would a content-and speaker-neutral restriction or no
restriction at all.(30) The
restriction challenged here does
substantially favor one viewpoint in that sense. and so it is
valid only if it is "finely tailored to serve substantial state
interests, and the justifications offered for any distinctions it
draws must be carefully scrutinized". Carey v. Brown, 447 U.S.
455, 461-62, 100 S.Ct. 2280, 65 L.Ed.2d 263 (1980). The decisive
importance of viewpoint neutrality is
illustrated by the cases dealing with so-called "subject matter
restrictions": content discrimination based on the subject matter
of expression in a particular setting.(31)
In both Greer v.
Spock,
424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). and Lehman v.
City of Shaker Heights, 418 U.S. 298. 94 S.Ct. 2714, 41 L.Ed.2d
770 (1974) (plurality opinion), the Court applied a relatively
deferential standard of review to rules forbidding political
expression in, respectively, a military base and a municipal bus
system; so too in Young v. American Mini Theaters, Inc., 427 U.S.
50,96 S.Ct. 2440,49 L.Ed.2d 310 (1976) (plurality opinion), which
involved a zoning ordinance that was particularly restrictive for
theatres exhibiting non-obscene but sexually explicit films. By
contrast, the Court scrutinized other subject matter restrictions
much more stringently in Mosley and Carey, both of which involved
ordinances banning all but labor picketing in certain areas, as
well as in Consolidated Edison Co. v. Public Service Commission,
447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980), which
involved an administrative order prohibiting public utilities
from
including in their monthly bills to customers any inserts
discussing "controversial issues of public policy". These two
sets of
cases may be reconciled by noting that the stricter standard of
review was applied in cases where the restriction was not
viewpoint-neutral in the sense defined above.(32) The predictable and
intended effect of the order challenged in Consolidated Edison
Co.
was to prevent electrical utilities from extolling the virtues of
nuclear power, and the labor exceptions involved in Mosley and
Carey favored labor against management more than would a complete
prohibition on picketing. By contrast, the restrictions involved
in Greer and Lehman had no readily discernible tendency to favor
particular types of political candidates or political doctrines;
and the plurality opinion in Young stressed that the challenged
zoning restriction on theaters exhibiting sexually explicit films
was neutral with respect to the ideas or viewpoint conveyed by
those films. 427 U.S. at 70.(33) Viewpoint-neutrality also helps
explain why speech restrictions keyed to the identity of the
speaker are always scrutinized strictly: they almost invariably
are not neutral with respect to the viewpoints they tend to
disfavor. Indeed, the fact that the Supreme Court has never
distinguished sharply between speaker discrimination and
impermissible subject matter restrictions, as illustrated by the
passage from Mosley quoted above, itself tends to indicate that
the same fundamental evil underlies both.(34) This is not to say
that lack of viewpoint-neutrality is a
necessary condition for vigorous scrutiny of content or speaker
discrimination; the Speech Clause guards other values with
comparable intensity.(35) But it
is at least a sufficient condition. No
case has applied any but the most exacting scrutiny to a content
or speaker restriction that substantially tended to favor the
advocacy of one point of view on a given issue. The access
policy
adopted by the Perry schools, in form a speaker restriction,
favors a particular viewpoint on labor relations in the Perry
schools in just such a manner the teachers inevitably will
receive
from PFA self-laudatory descriptions of its activities on their
behalf and will be denied the critical perspective offered by the
PLEA. It must therefore be rigorously scrutinized. Although this
discussion is couched in terms of the first
amendment, the same standard of review may be derived from the
equal protection clause. Equal protection analysis may broadly
be
said to fall into a familiar two-tiered pattern: government
classifications that impinge on fundamental rights and
classifications along suspect lines must be closely tailored to
meet a compelling state interest, but other classifications need
only be rationally related to a legitimate state interest. E.g.,
San Antonio Independent School District v. Rodriguez, 411 U.S. 1,
16-17, 93 S.Ct. 1278,36 L.Ed.2d 16 (1973). Because free speech
is
a fundamental right, and because discrimination between speech or
speakers, to the extent that it operates as a form of censorship,
implicates that right, the fundamental rights strand of strict
scrutiny applies to such discrimination. The peculiar identity
of
equal protection and first amendment analyses in differential
access cases follows logically from the explicit constitutional
designation of speech as fundamental and from the fact that the
first amendment's proscription against censorship is itself
simply
a specialized equal protection guarantee.(36) Thus, although
Mosely evidently was the first case explicitly to apply the equal
protection clause to differential access cases, the analytic
tools
of equal protection strict scrutiny - the requirements of a
relatively important state interest, a close fit between end and
means, and use of the least restrictive alternative were applied
to content discrimination under the aegis of the first amendment
long before then.(37) In principle, of
course, the stringency with which these
tools should be applied could vary between the first amendment
and
equal protection clauses. The strictness of the scrutiny applied
under the fundamental rights strand of equal protection does in
fact vary in different contexts; there seems to be more than a
verbal difference between the "necessary to promote a compelling
state interest" test, applied to certain restrictions on the
fundamental right to equal treatment in the voting process,(38) and
the "closely tailored to an important state interest" test,
applied by Carey, Mosley, and Consolidated Edison Co. to
non-viewpoint-neutral content and speaker discrimination. It
should
not be surprising that the strictness of fundamental rights
scrutiny may vary with the particular right in question, just as
the strictness of the scrutiny applied under the suspect
classification strands may vary as the classification is fully
suspect, such as race, or only semi-suspect, such as gender.(39)
But, as also illustrated by the passage quoted from Mosley, the
Supreme Court has alluded to the first amendment and the equal
protection clauses almost indiscriminately in cases involving
discrimination in access to communications facilities.(40) In this
case, therefore, there is no substantial difference between the
standards of review required by those two constitutional
provisions.(41) It is irrelevant to
application of the viewpoint-neutrality
principle that the school district's internal mail system is not
a
public forum in the exact sense of the term. That is, we may
assume that the Constitution would not prohibit the school
district from closing its internal mail system to all unofficial
communications if it chose. The public forum doctrine is a
manifestation of the first amendment's independent proscription
against government regulation that unnecessarily constricts
opportunities for expression, even if viewpoint-neutral. If
viewpoint-neutrality is an equal protection guarantee, the public
forum doctrine is its substantive due process analogue.(42) But
while content neutrality is an all-pervasive restriction, the
public forum doctrine, because of its more sweeping consequences
and potentially limitless application, has been carefully
restricted to guarantee unofficial access only to government
property or facilities of a sort that traditionally have been
open
to public expression, Greer v. Spock, 424 U.S. 828, 835-36
(1976),
quoting Hague v. Committee for Industrial Organization, 307 U.S.
496, 515-16, 59 S.Ct. 954, 83 L.Ed. 1423, 4 LRRM 501 (1939)
(opinion of Roberts, J.), or whose normal use plainly will not be
interfered with by such expression, Grayned v. City of Rockford,
408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Brown
v.
Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966)
(plurality opinion). Many cases demonstrate that
the obligation of viewpoint
neutrality applies to discriminatory access restrictions whether
or not the facility could be completely closed to unofficial
communications. For example, a school classroom is not a public
forum, but Tinker v. Des Moines Independent Community School
District, 393 U.S. 503, 510-11, 89 S.Ct. 733, 21 L.Ed.2d 731
(1969), struck down a rule prohibiting students from wearing arm
bands in protest of the Vietnam War in part because the school
did
not prohibit the wearing of other symbols of political
significance. Greer v. Spock, 424 U.S. 828, 838-39 (1976),
upheld
a general access restriction applied to prohibit a politician
from
speaking on a military base, but the Court took care to note that
the rule had been applied evenhandedly to all political speakers.
In particular, courts have not hesitated to apply, the
viewpoint-neutrality principle to public schools' internal mail
systems and
other school facilities even though they are not public forums
outside the context of school labor relations, at least.
Bonner-Lyons v. School Committee, 480 F.2d 442 (1st Cir. 1973),
for
example, forbade a school board from disseminating to students
and
parents messages critical of forced busing unless proponents were
given equal access to the schools' message distribution system.
National Socialist White People's Party v. Ringers, 473 F.2d 1010
(4th Cir. 1973) (en banc) required a school board to rent its
school auditorium to a racially discriminatory political party
because the auditorium was available to other private
organizations.(43) We see no
reason why the first amendment and
equal protection rights of the members of a legitimate teachers'
union, or of other teachers, should be weaker than the rights of
Klansmen. Connecticut SFT
asserted that a low standard of scrutiny
should apply to a minority union's equal access claim in part
because its communications were thought to be of "limited public
interest". 538 P.2d at 481. Abood v. Detroit Board of Education,
431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, 95 LRRM 2411 (1977),
contradicted that statement in discussing the comparative first
amendment rights of members and non-members of a majority union
in
the course of analyzing the constitutionality of an agency shop
arrangement in a public school system. First, it is doubtful, to
say the least, that communications critical of the incumbent
union
or of school operations by a minority union or individual
teachers
really are of limited public interest; Abood held it a "truism"
that "because public employee unions attempt to influence
government policymaking, their activities - and the views of
members
who disagree with them - may properly be termed political". 431
U.S. at 231. More fundamentally, even if such communications
could fairly be characterized as being of interest only to the
teachers themselves, that fact is irrelevant. As Abood also
pointed out, the Supreme Court has "never suggested that
expression about philosophical, social, artistic, economic,
literary, or ethical matters - to take a non-exhaustive list of
labels - is not entitled to full First Amendment protection".
Id.
(footnote omitted). The first amendment does not enact Alexander
Meiklejohn's Free Speech and its Relation to
Self-Government
any
more than the fourteenth enacts Herbert Spencer's Social Statics.
It is true that at least two recent opinions - each by a badly
divided Supreme Court - look to a "two level" theory of the first
amendment, in which certain communications protected by the first
amendment in the sense that they cannot constitutionally be
banned
outright may nevertheless be prohibited from certain channels of
communication on the basis of their content.(44) 44 But both of
those cases involved virtually idea less near-obscenity, on the
fringe of first amendment protection. By contrast, PLEA's
criticisms of PEA and its efforts to persuade teachers to enter
its
ranks and, ultimately, to influence school operations are, if not
at the very apex of any hierarchy of protected speech, at least
not far below it. Finally, the fact
that PLEA has alternative ways to
communicate with the teachers does not weaken the applicable
standard of review. The oft-cited general rule is that "one is
not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised
in some other place". Schneider v. State, 308 U.S. 147, 163, 60
S.Ct. 146, 84 L.Ed. 155, 5 LRRM 659 (1939). Of course, if read
for all it is worth, this statement is patently false; the effect
of even the most innocuous time, place, or manner restriction is
to do precisely that. But, properly interpreted, the Schneider
rule does stand for an important truth: the existence of
alternative channels of communication will not alone justify a
restriction on one channel. Such a restriction must always have
an independent justification; restrictions keyed to the speaker
or to the content of the message delivered must still be
scrutinized.(45) The only effect
of the existence of alternative
channels of communications is to lessen the weight of the state
interest necessary to justify a restriction on a particular
channel, and only to the extent that other channels are as
effective as the restricted channel. The other channels
of communication here available to PLEA,
however, are not nearly as effective as the internal mail system.
"The place of work is a place uniquely appropriate for
dissemination of views concerning the bargaining representative
and the
various options open to the employees". NLRB v. Magnavox Co.,
415
U.S. 322, 325, 85 LRRM 2475 (1974), and off-campus communication
by PLEA to the teachers of Perry Township would either be
expensive, if through the public mails, or cumbersome, if through
mass telephoning. Its opportunities for communication on the
school premises are also decidedly inferior to the internal mail
system. Hand distribution of written materials and speaking with
individual teachers are far more arduous and time-consuming;
literature left in the teachers' lounge and bulletin board
messages are more likely to be missed by persons not deliberately
seeking them; bulletin board messages and public address
announcement cannot convey much detail; and meetings on school
property after school hours only permit PLEA to preach to the
converted. Indeed, the defendants' attempt to justify the mail
access restriction as necessary to ensure labor peace, discussed
below, itself further demonstrates the inadequacy of these other
methods of communication, for if PLEA's use of these methods does
not threaten labor peace, that is only because they are less
effective than the mail system in stirring up support for it.
Because these methods are materially less effective than the mail
system, their existence does not weaken the appropriate standard
of review. B. Given that the
exclusive access policy must be closely
tailored to an important state interest, the defendants' attempts
to justify it must be rejected. Their arguments fail into two
categories. First, they assert that discrimination in favor of
the incumbent union is justified because the incumbent has legal
duties to the teachers with respect to bargaining and contract
administration that other unions and individuals do not have, and
which require it to have an efficient method of communicating
with
the teachers. Second, citing Memphis AFT, they suggest that the
access restriction is necessary to ensure "labor peace" in the
school system. That PEA has legal
duties to the teachers that PLEA does not
have does not justify the exclusive access policy. The access
policy presently in force is both over inclusive and
under-inclusive with respect to that asserted justification:
over-inclusive, because the collective bargaining agreement does
not
limit PEA's use of the mail system to messages related to its
special legal duties, and hence does not exclude messages simply
critical of PLEA; under inclusive, because the school district
permits outside organizations with no special duties to the
teachers to use the system. Even if the board had attempted to
tailor its access policy more closely to that justification, by
excluding all private communications but PEA's and limiting PEA
to
messages directly related to its special duties, the fit would
still be questionable, for it might be difficult - both in
practice and in principle - effectively to separate "necessary"
communications from propaganda. More fundamentally, we hold that
such an exclusive access policy would be invalid even aside from
questions of fit because it furthers no discernible state
interest. PLEA does not argue that the school district has no
legitimate interest in allowing PEA to use the mail system, but
rather that the school district has no interest in making PEA's
use exclusive. Without an independent reason why equal access
for
other labor groups and individual teachers is undesirable. the
special duties of the incumbent do not justify opening the system
to the incumbent alone. The defendants do not contend that equal access for
others would impose significant additional
expenses on the school district, nor that it would interfere with
PEA's execution of its duties as bargaining representative in any
way.(46) Nor can the access
policy be defended as designed to preserve
labor peace. It is true that the state's compelling interest in
educating the students attending its public schools permits it to
prohibit behavior that "materially and substantially disrupt[s]
the work and discipline of the school". Healy v. James, 408 U.S.
169, 189, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), paraphrasing
Tinker v. Des Moines Independent Community School District, 393
U.S. 503, 513 (1969); Grayned v. City of Rockford, 408 U.S. 104,
117-18 (1972). But "[i]n making this showing, the administration
must rely on reasonable inferences drawn from concrete facts, not
on the mere apprehension or speculation that disturbances or
interferences with appropriate discipline will occur".
Connecticut SFT, 538 P.2d at 478. See Tinker, 393 U.S. at
508-09;
Healy, 408 U.S. at 189-91. The defendants here point to no
specific interference with school operations that is likely to
result from use of the mail system by PLEA, and we can infer
none.
There is no indication that PLEA intends imminently to incite a
work stoppage, for example. Nor is there any reason to suppose
that the mere dissemination of PLEA's messages to hostile members
of PEA is more likely to provoke disruptive conflicts between
members of the rival unions than PEA's ongoing dissemination of
its
messages to hostile members of PLEA. Indeed, face-to-face
arguments in the teachers' lounges, which the defendants urge as
an alternative method of communication open to PLEA, must be far
more apt to disrupt than the impersonal delivery of its
easily-discarded tracts. Finally, even apart from the
requirements of
specific pleading and proof, the labor peace argument fails
because any discord PEA's communications may cause cannot
"materially and substantially" disrupt the teaching process
within
the meaning of Tinker and Healy. Passions could hardly run
higher
over this labor dispute than they did over the wisdom of American
involvement in Vietnam in 1965, symbolic speech about which the
Supreme Court held protected in the classroom itself in
Tinker. III. Because the school
board's grant to PEA of an exclusive right
to use the internal mail system must be searchingly examined and
because the board has failed adequately to justify it, we hold
that it violates the first amendment and equal protection rights
of the teachers who belong to PLEA. We stress the scope and
limits of that holding. It is premised entirely on the
discrimination between members of PEA and other teachers; at no
point
did we rely solely on the fact that the school district permits
outside organizations to use the mail system. On the other hand,
we do not hold that a school's internal mail system is a public
forum in the sense that a school board may not close it to all
but
official business if it chooses. Furthermore, it does not follow
that a school board that opens the system to a majority union may
place no restrictions at all on who may use it or the content of
the messages that pass through it. The school's interest in
keeping outsiders off campus during school hours doubtless
supports appropriate restrictions on entry for the purpose of
using the mail system, and a school certainly would not be
compelled to distribute literature inciting its teachers to
participate in an illegal strike, for example. On a more refined
level, we have no occasion to consider the validity of content or
speaker restrictions that are relatively neutral with respect to
viewpoint, such as a restriction of unofficial access to messages
about school operations or labor relations, or an exclusion of
commercial advertisements or political messages unrelated to
school operations. Finally, we are not faced with and do not
address the constitutional questions that may arise from a public
employer's grant to a majority union of exclusive rights other
than of access to communications facilities, such as a dues
check-off.(47)
The decision of the
district court is reversed, and this case
is remanded for proceedings in conformity with this
opinion.
DISCLAIMER
[[Summary: Everythning I have on file regarding the prohibition
of providing "pony" mail service to the union]]
TEXAS STATE TEACHERS ASSOCIATION, Garland Education Association, Joe Atkins and Janice Hill, Plaintiffs-Appellants,
GARLAND INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.
No. 84-1833.
United States Court of Appeals,
Fifth Circuit
Dec. 6, 1985.
Teacher organization brought suit alleging that school policies restricting their access to school property and use of school facilities during school hours violated their constitutional rights. The United States District Court for the Northern District of Texas, Jerry Buchmeyer, J., granted summary judgment to school district, and teacher organization appealed. The Court of Appeals, Jerre S. Williams, Circuit Judge, held that: (1) school district had not created a public forum or limited public forum in either the schools themselves or schools' mail facilities, and therefore denying teacher organization access to schools and school mail facilities during school hours did not violate their First Amendment rights, but (2) school policies purporting to deny teachers right to discuss teacher organization during non-class time, and preventing teachers from using school mail facilities to mention "employee organizations" were unconstitutional under the First Amendment.
Affirmed in part; reversed in part and remanded.
1. Constitutional Law @90.1(4)
Existence of right of access to public property and standard by which limitations upon such right must be evaluated differ depending upon character of property at issue. U.S.C.A. Const.Amend. 1.
2. Constitutional Law @90.1(1.4)
Schools are not considered traditional public forums in which outside visitors may freely espouse their views. U.S.C.A. Const.Amend. 1.
3. Schools @20
School administrators must be given broad discretion in supervising visitation of school environment by persons not associated with the school.
4. Constitutional Law @90.1(1.4)
Selective visitation policy, pursuant to which schools permitted groups of educators, textbook salesmen, and representatives of civic and charitable organizations to meet with students and faculty during non-class school hours, did not create a public forum in the schools so as to compel finding that First Amendment rights of teacher organization were violated when school district denied its members access to school grounds and school media facilities. U.S.C.A. Const.Amend. 1.
5. Constitutional Law @90.1(1.4)
By allowing educators, salesmen and the like access to school property to discuss school-related activities, school district did not create a limited public forum so as to provide teacher organization with a constitutional right of access, since those permitted access were not "similar entities" to teacher organization, which was concerned with employment practices and procedures. U.S.C.A. Const.Amend. 1.
6. Constitutional Law @242.2(l)
School policy permitting certain groups, such as educators, salesmen and the like to discuss school-related activities on school property during school hours did not violate equal protection rights of teacher organization, which was denied access, as the policy rationally furthered a legitimate state purpose, that of limiting contacts during school days so that teacher& might concentrate on teaching. U.S.C.A. Const.Amend. 14.
7. Constitutional Law @90.1(1.4)
Unless it has been opened to the general public, a school mail system is not a public forum; same is true of school billboards and public address system, so long as there are alternate channels of communication. U.S.C.A. Const.Amend. 1.
8. Constitutional Law @90.1(1.4)
By allowing certain civic and commercial groups to distribute literature through school facilities, school district had not created a public forum in schools' communication facilities, and therefore denial of access to those facilities to teacher organization did not violate the organization's members' First Amendment rights. U.S.C.A. Const.Amend. 1.
9. Constitutional Law @90.1(1.4)
No entity similar to teacher organization had been granted access to school facilities to use schools' communication facilities, and therefore teacher organization had no right of access to those facilities under a First Amendment claim of limited public forum. U.S.C.A. Const.Amend. 1.
10. Schools @20
Application of school policy to teacher organization to deny access to school property and facilities during school hours was not necessary in order to comply with Education Code section, V.T.C.A., Education Code § 21.904, which forbids school districts from coercing teachers to join any group, club, committee, organization or association, as a policy allowing all employee organizations access under the same guidelines would not constitute "coercion."
11. Constitutional Law @90.1(1.4)
Regulation on speech of those who teach within the schools must be drawn more narrowly than regulations on speech of outside representatives.
12. Constitutional Law @90.1(1.4)
School policies purporting to deny teachers right to discuss teacher organization during non-class time were unconstitutional under the First Amendment, as there was no demonstration that such conversations would result in a material and substantial interference with the activities or discipline of the school. U.S.C.A. Const.Amend. 1.
13. Constitutional Law @90.1(1.4)
School policies preventing teachers from using school mail facilities to mention "employee organizations" were unconstitutional under the First Amendment, as were prohibitions against use of whatever bill-board facilities were set aside for teachers' personal messages, as there was no showing that such use would constitute a material and substantial disruption with activities or discipline of the school. U.S.C.A. Const.Amend. 1.
______________
Robert R. Chanin, Jeremiah A. Collins, Washington, D.C., for plaintiffs-appellants.
law Offices of Earl Luna, Earl Luna, Robert R. Luna, Dallas, Tex., for defendants-appellees.
Appeal from the US States District Court for the Northern District of Texas.
Before GARZA, JOHNSON and WILLIAMS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
This appeal involves a claim brought by a teacher organization against a school district under 42 U.S.C. § 1988 (1981). Appellants contend that policies of appellees deny them access -to school grounds and school media facilities and restrain free speech in violation of their First and Fourteenth Amendment rights. Appellants are the Texas State Teachers Association (TSTA); the Garland Education Association (GEA), a TSTA local affiliate; Joe Atkins, a TSTA employee; and Janice Hill, a GEA member employed as a teacher in the Garland Independent School District (GISD). Appellees are GISD; Harris Hill, Donald Center, Cash Birdwell, Jim Bums, Mike Cloud, Don Hollenshead, and M.D. Williams, IV, in their official capacities as GISD Trustees; and Eli Douglas in his official capacity as GISD Superintendent. The district court determined that appellants had no constitutionally protected right of free speech access to GISD schools, and granted summary judgment in favor of appellees. TSTA appeals from the grant of summary judgment against them, and from the denial of their motion for partial summary judgment.
TSTA is a voluntary employee organization. It sought to distribute TSTA information to teachers in GISD schools during school hours. TSTA also wanted to use school communication facilities-including school mailboxes, billboards, and the public address system-as mediums for the distribution of their information.
GISD policy, as
expressed in Administrative Regulation 412,(48)
totally prohibits any "employee organization"(49) from meeting or
recruiting during "school hours",(50)
and from using school
communication facilities for the dissemination of information
concerning employee organizations. GISD policy allows employee
organizations to meet or recruit teachers on school premises
before 8:00 am. or after 3:45 p.m. "upon request to and approval
by
the local principal." GISD policy also allows the distribution
of
literature on school premises (parking lots, hallways, and
placement on teachers' desk) during non-school hours. On January 8 and 9, 1981, TSTA
representatives visited
numerous GISD schools during school hours. Relying on GISD
Administrative Regulation 412, the principal or assistant
principal
of most schools refused to permit the TSTA representatives to
distribute literature or to meet with GISD teachers. This lawsuit resulted.
Appellants claimed that these GISD
policies violated their First and Fourteenth Amendment rights of
free speech, free association, and equal protection of the laws,
and were unconstitutionally vague and over broad. Appellants
argued that these policies, as interpreted and implemented by
school officials, operated to deny GISD teachers their right to
discuss TSTA business even during non-class times such as the
lunch hour (several GISD teachers and administrators are members
of TSTA). Appellants further contended that school officials
routinely granted access to school communication facilities to
other commercial and civic organizations (upon approval of the
principal), and that "employee organizations" were
discriminatorily denied access. Appellees denied that their
policies violated the appellants'
First and Fourteenth Amendment rights. They argued that the GISD
schools are not a public forum, and therefore appellants have no
right of access. Appellees urged that reasonable alternative
means of communication were available to TSTA --i.e., meeting
after school hours, distributing literature on school property
after school hours, or contacting teachers at school or home
through the United States Postal Service. Finally, appellees
contended that allowing employee organizations to use school
facilities would disrupt the learning process and would be
contrary to Texas Education Code § 21.904 -which requires a
school
district to maintain a position of neutrality with respect to
employee membership in various organizations.(51)
The parties each filed a
motion for summary judgment. The
district court granted appellants' motion for partial summary
judgment as to Admin.Reg. 412(4) and (5) --which permits employee
organizations to use school premises for meetings during
non-school hours only "upon request to and approval by the local
school principal." The district court held that this rule was
unconstitutionally over broad.(52)
This holding is not appealed.
As to the remainder of appellants' claims, the district court
granted appellees' motion for summary judgment and denied
appellants' motion. We reverse in part and affirm in
part. THE RIGHT TO
COMMUNICATE [1] In granting the GISD
motion for summary judgment, the
district court relied upon Perry Education Assn. v. Perry Local
Educators' Assn. 460 U.S. 37, 103 S.Ct. .948, 74 L.Ed.2d 794
(1983). Under Perry, -the "existence of a right of access to
public property and the standard by which limitations upon such a
right must be evaluated differ depending upon the character of
the
property at issue." Perry, 460 U.S. at 44, 103 S.Ct. at 954, 74
L.Ed.2d at 804. Perry describes the three
types of forums that exist in
public property for First Amendment purposes at 460 U.S. 45, 103
S.Ct. 954-55, 74 L.Ed.2d 804: (1) Public Forums: These
are areas
"which by long tradition or by government fiat have been devoted
to assembly and debate." Examples are public streets and parks.
Speech may not be suppressed for content in these forums unless
the state shows a "compelling state interest" and a regulation
"narrowly drawn to achieve that end." Public forums are also
subject to reasonable "time, place, and manner" restrictions. (2)
Limited Public Forums: These are forums which the
state has
voluntarily "opened for use by the public as a place for
expressive activity." As long as the forum remains open, speech
is protected to the same extent as in a public forum. In a
limited public forum, only "similar entities" to those allowed
access have a protected right of speech. (3) Non-Public
Forums:
This is "property which is not by tradition or designation a
forum
for public communication." In a non-public forum, "the state may
reserve the forum for its intended purposes ... so long as the
regulation on speech is reasonable and not an effort to suppress
expression merely because public officials oppose the speaker's
view." GISD policy, as expressed in
Administrative Regulation 412,
affects two different classes of communications: (1)
communications instigated by outside representatives of TSTA who
desire
access to teachers and school communication facilities; and (2)
communications among GISD teachers employed by the schools. A
different analysis is relevant to each separate type of
communication. Because appellants are appealing a summary
judgment, we
must look at the evidence in the light most favorable to them.
Simon v. United States, 711 F.2d 740, 743 (5th
Cir.1983). A. Communications
of Outside TSTA Representatives 1. During school
hours [2, 3] Schools are not
considered traditional public forums
in which outside visitors may freely espouse their views.
See
Widmar v. Vincent 454 U.S. 263, 267 n. 5, 102 S.Ct. 269, 273 n.
5,
70 L.Ed.2d 440, 446 n. 5 (1981); Perry, 460 U.S. at 47, 103 S.Ct.
at 956, 74 L.Ed.2d at 806. Moreover, school administrators must
be given broad discretion in supervising the visitation of the
school environment by persons not associated with the school.
Hall v. Board of School Commissioners of Mobile
County, Alabama,
681 F.2d 965 (5th Cir.1982). Because GISD schools are not public
forums, outside TSTA representatives have no constitutional right
of access. Professional Association of College
Educators v. El
Paso County Community College District, 730
F.2d 258, 263 (5th
Cir.1984), cert. denied - U.S. -, 105 S.Ct 248, 83 L.Ed.2d 196
(1984). Appellants argue, however, that the school has allowed
other visitors from civic and commercial groups to meet with
teachers during school hours, and has therefore voluntarily
created either a public forum or a limited public
forum. [4] GISD permits selected
groups of educators, textbook
salesmen, and representatives of civic and charitable
organizations to meet with students and faculty during non-class
school hours. These meetings must concern school-sponsored or
related activities and must not interfere with class time. Those
persons seeking access must obtain prior permission from the
school principal, and in some cases, from the
Superintendent's
office. The district court found that: In each case, the policies
carefully limit the
access of selected visitors by requiring them to
report to the principal's office before visiting
other parts of the campus, by prohibiting visitors
from roaming around the campus unescorted, and by
directing the school principals to take every
precaution necessary to ensure that the visitors do
not interrupt classes. This selective visitation
policy does not create a public
forum in GISD schools. Perry, 460 U.S. at 47, 103 S.Ct. at 956,
74 L.Ed.2d at 806. [5] In addition, outside TSTA
representatives are not due
any right of visitation through the doctrine of "limited public
forum." Even though the school district has granted access
during school hours to representatives of certain civic and
commercial groups, "the constitutional right of access would in
any event extend only to other entities of similar character."
Id.
Under Perry, the visitors allowed access --educators, salesmen,
and the like, discussing school-related activities-- are not
"similar entities" to an employee organization, such as TSTA,
concerned with teacher employment practices and
procedures. In Perry, a teacher
organization (PLEA) sought access to
school mail facilities. A rival union (PEA), and civic groups
such as the girl scouts, boys' club, and the YMCA were granted
access. Nevertheless, the Perry court held that even if a
limited
public forum had been created by the school, PLEA had no
constitutional right of access because it was not a similar
entity
to the groups already allowed access. PLEA was not similar to
the
civic groups because, unlike those groups, it was an organization
concerned with "terms and conditions of teacher employment." 460
U.S. at 48, 103 S.Ct. at 956, 74 L.Ed.2d at 806. The same is
true
of TSTA's relationship to the civic groups granted access by
GISD.
PLEA was not similar to PEA because PEA was the exclusive
bargaining representative, while PLEA was not. Id. In the
present
case, GISD does not grant access to any "employee organizations."
Therefore, TSTA's claim that they are a "similar entity" to the
civic groups allowed access by GISD fails under the Perry
holding.(53) We hold that GISD policies are
constitutional as applied
to the visitation of the school by outside TSTA representatives
during school hours. [6] Appellants also contend
that policies of GISD constitute
impermissible content discrimination in violation of the equal
protection clause of the Fourteenth Amendment. Since outside
representatives of TSTA have no First Amendment right of access
to
the school, the grant of access o other organizations does not
burden a fundamental right of TSTA. Perry, 460 U.S. at 52, 103
S.Ct. at 959, 74 L.Ed.2d at 809. Therefore, the school
district's
policy need only rationally further a legitimate state purpose.
Id. We find one of the justifications advanced by GISD --that of
limiting contacts during the school day so that teachers may
concentrate on teaching survives the test of rationality.
Therefore, we find no merit in appellant's equal protection claim
as it relates to outside representatives of TSTA. 2. Use of
school mail facilities [7] Unless it has been opened
to the general public, a
school mail system is not a public forum. Perry 460 U.S. at 47,
103 S.Ct. at 955-56, 74 L.Ed.2d at 806. The same is true of
school billboards and the public address system so long as there
are alternative channels of communications. See Connecticut
State
Federation of Teachers v. Board of Education, Members, 658
F.2d
471, 480-81 (2nd Cir.1976). Appellants argue that GISD
allows other commercial and civic
organizations to use school communication facilities. They then
contend that either a public forum or a limited public forum has
been created in GISD communication facilities, to which the
appellants should be granted access. Appellants assert that
"employee organizations" are the only groups denied access to
GISD
facilities. [8] The evidence indicates
that GISD has not created a
public forum in its communication facilities. On occasion,
school
principals have allowed certain civic and commercial groups to
distribute literature through school facilities. For example,
GISD sometimes allows access to organizations such as the PTA,
Little League, Boy Scouts, Junior Achievement, teacher bowling
and
swimming groups, and Board-approved insurance companies.
Similarly, in Perry, certain community and civic groups, i.e.,
the
Cub scouts, YMCA, local church groups, etc.-were granted access
to
school mailboxes. Nevertheless, Perry held that "[t]his type of
selective access does not transform government property into a
public forum." 460 U.S. at 47, 103 S.Ct. at 956, 74 L.Ed.2d at
806. [9] Likewise, TSTA has no
right of access under a claim of
"limited public forum." No "similar entities" to TSTA --i.e.,
other employee organizations-- are granted access to GISD
facilities.(54) It is permissible to refuse to "grant
employee
organizations the right to use the school mails at all." Ysleta
Fed. of Teachers v. Ysleta Ind. School District, 720
F.2d 1429,
1438 (5th Cir.1983). In short, GISD has not created a public
forum
and also has not created a "limited public forum' for entities
similar to employee organizations. Therefore, we hold that GISD
may prevent outside representatives of "employee organizations"
from using school communication facilities. [10] It is important to note,
however, that GISD's argument
that Admin.Reg. 412 is necessary in order to comply with Texas
Education Code § 21.904 --which forbids school districts from
"coerc[ing]" teachers to join any "group, club, committee,
organization, or association " is without merit. Appellees
contend
that allowing the mention of TSTA or other employee organizations
on campus during school hours will somehow be seen as "coercion"
by the school district to join those organizations. However, a
policy which allows all employee organizations access under the
same guidelines does not constitute "coercion." See Widmar, 454
U.S. at 273-76,102 S.Ct. at 276-78, 70 L.Ed.2d at 449-51 (mere
grant of access to religious organization does not "confer any
imprimatur of state approval"); Gay Alliance of
Students v.
Matthews, 544 F.2d 162, 165 (4th Cir.1976) (No university
approval
of organization implied from university's recognition of
organization).(55) B. Communications of
GISD Teachers. 1. Private
Communications [11] Regulations on the
speech of those who teach within the
schools obviously must be drawn more narrowly than regulations on
the speech of outside representatives. See Country Hills
Christian Church v. United School District 512, 560
F.Supp. 1207,
1214-15 (D.Kan.1983) (cited with approval by this Court in
Ysleta,
720 F.2d at 1435); Hall, 681 F.2d at 968 (distinction exists
between teacher communications and the rights of "persons not
assigned to the schools"). Perry, which concerns the rights of
organizations outside the schools, does not apply to teacher
communication within the school. See Country Hills, 560 F.Supp.
at
1215, 1220; see also Hastings v. Bonner, 578 P.2d 136, 143 (5th
Cir.1978) ("[T]here is no doubt that this circuit has adopted and
now applies the Tinker test in cases involving the First
Amendment
rights of teachers."). The Tinker test comes from Tinker v.
Des
Moines Independent Community School District, 393 U.S.
503, 89
S.CL 783, 21 L.Ed.2d 731 (1969), which held that teacher
communications may be suppressed only when "the expression or its
method of exercise materially and substantially interferes with
the activities or discipline of the school." Id. See also
Shanley v. Northeast Ind. School District, 462 F.2d 960, 969 (5th
Cir.1972). The evidence indicates that
school officials interpret
Admin.Reg. 412 as prohibiting any discussions among teachers
relating to TSTA or TSTA business or relating to any teacher
organization that occur on school premises during school hours,
even though those discussions occur during lunch hour or other
non-class time.(56) Although acknowledging that such an
interpretation is unconstitutional, the district court
disregarded this
issue because it found that "there has never been any attempt to
enforce such an interpretation." After reviewing the evidence in
the light most favorable to appellants, we must
disagree. [12] First, it is undisputed
that school officials would
prohibit GISD teachers from discussing TSTA if, in their view,
such discussion amounted to "promoting" the organization. The
district court found (and appellees argue on appeal) that
punishment of speech "promoting" employee organizations is
justified
under an opinion of the Texas Attorney General. Texas
Atty.Gen.0p. M.W. 89 held that it was a violation of the Texas
Constitution to allow teachers to perform employee organization
business on a "release time" basis.(57) The Attorney General found
that such a program was unconstitutional because it "constitutes
an unconditional grant of public funds to a private
organization."
Appellees urge that private teacher discussions during non-class time are
comparable to the "release time"
program. The "release time" program is
not at all comparable to
private teacher conversations even though those conversations may
be proselytizing. The "release time" program provided that
teachers who would otherwise be teaching would be allowed to be
absent from their teaching duties for a specified number of days
to work for an employee organization at the school district's
expense. Here, in contrast, the issue is the right of teachers
to
discuss matters relating to employee organizations at times when
the teachers would not otherwise be required to teach, but would
be "free to talk about whatever they want" including "the Cowboy
game ... [or] what they did over the weekend."(58) To allow
teachers to speak favorably of an employee organization does not
constitute an unlawful "grant of public funds to (the]
organization," any more than to allow teachers to speak favorably
of a
political party, a church, a club, or a football team during the
lunch hour constitutes an unlawful grant of public funds to such
an organization.(59) Second, there is firm evidence
indicating that officials
might be inclined to enforce their policies against all teacher
speech mentioning TSTA that occurs on school premises during the
school day whether the teacher is in the classroom or not.(60)
Appellees' evidence in response demonstrates only that there is
no
active monitoring of teacher conversation.(61) This evidence does
not establish that officials would refrain from enforcing
violations of which they became aware. For example, there is no
indication that officials would not take at least some sort of
disciplinary action against a teacher whose violation of
Admin.Reg. 412 was reported to officials by another
teacher. Finally, the mere fact that
this policy exits is sufficient
to support appellants' cause of action. Even if no officials
attempt to overhear teacher conversations, conscientious teachers
should be expected to obey school regulations.(62) The regulation
inhibits the speech of law abiding teachers. Thus, even without
actual monitoring of conversations, the rule chills teacher
speech
in violation of their First Amendment rights. See Dombrowski v.
Pfister, 880 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22
(1965);
Sparatacus etc. v. Board of Trustees of Illinois, 502 F.Supp.
789,
796-97 (N.D.IU.1980) ("Injury to First Amendment rights may
result
from the threat of enforcement itself, since it may chill...
ardor
and desire to engage in protected expression."). We hold that GISD policies
which purport to deny teachers the
right to discuss TSTA or TSTA business during non-class time are
unconstitutional. Appellees have not demonstrated that such
conversations result in a "material and substantial interference
with the activities or discipline of the school." 2. Use of school media
facilities The primary purpose of GISD's
internal mail system is to
distribute official messages between school administrators and
teachers and among the teachers themselves. GISD allows teachers
to communicate with each other on any subject including purely
personal matters, except for subjects relating to employee
organizations.(63) [13] Appellees argue that
prohibiting teacher communications
as they relate to "employee organizations" is proper because it
preserves the neutrality mandated by the Texas Education Code.
As
noted above, we find no merit to that contention.(64) Teachers who
have access to school media facilities for even purely personal
matters cannot be prohibited from the exercise of that right
simply because their internal speech may concern "employee
organizations." We therefore hold that GISD policies preventing
teachers from using school mail facilities to mention "employee
organizations" are unconstitutional. So also are prohibitions
against the use of whatever billboard facilities may be set aside
for teachers' personal messages. No "material and substantial"
disruption has been shown.
CONCLUSION We affirm that part of the
summary judgment which upholds
Administrative Regulation 412's prohibition against visitation
and
use of school media by outside employee organization
representatives during school hours. We reverse that part of the
summary judgment which upholds Administrative Regulation 412's
application to private teacher conversations and use of school
media facilities by teachers employed in GISD schools as those
media facilities are otherwise available to teachers for their
personal messages. We grant appellants' motion for partial
summary judgment holding the application of the Regulation to
these activities unconstitutional. AFFIRMED in part; REVERSED
in part; and REMANDED for
proceedings not inconsistent with this opinion. Lee County Request: Please pass this MEMORANDUM on to your chief negotiator and
share
it with whomever you feel should receive it. October 13, 1994 RE: Union Use of School District's Internal Mail
System KUNKEL, MILLER & HAMENT, Lee County School Board's labor
attorney
has recently briefed Lee's administrative staff regarding the
above noted subject. The following is excerpted from their
correspondence: "The U.S. Supreme Court has denied a request by a teachers'
union, to review a decision of the U.S. Court of Appeals for the
Seventh Circuit. That decision, in Fort Wayne Education
Association v. Fort Wayne Community Schools, 977 F.2d 358,
had
ruled that statutes which create the federal postal monopoly make
it illegal for a school district to carry letters and other
documents of the teachers' union in the school district's
inter-school courier system. As with many school districts, the
Fort
Wayne school district had routinely delivered written
communications from the union to the teachers and other employees
at the various schools and other work sites. The union had
argued
that because the documents contained communications regarding
school related issues, they fell within the "letters of the
carrier" exception. Under this exception, it is permissible for
an entity to carry its own letters over routes otherwise traveled
by the Postal Service, but no one except the Postal Service may
carry documents for other parties, unless postage is paid on the
documents [read 'collected and paid to the Postal Service' {our
insert}]. By denying the union's request to review the
case, the
U.S. Supreme Court has allowed the
lower Court's decision to
remain valid." Would you please answer the following questions and FAX the
answers to Dr. Madeleine Doran (813)337-8689, by FRIDAY,
OCTOBER
21, 1994? SHE IS PREPARING FOR IMPASSE WITH THE BARGAINING AGENT AND
THIS IS
ONE OF THE ISSUES AT IMPASSE. 1. Union newsletter(s) and notices are sent through your
courier service. yes____ no_____ 2. Only materials 'jointly developed' are sent through your
courier service. yes____ no_____ Please send by mail any other information you would like to
share
regarding this issue. Thank you very much for your rapid response. SCANNED DOCUMENT - PLEASE DO NOT CITE! 485 U.S. 589, 99 L.Ed.2d 664 REGENTS OF the UNIVERSITY OF
CALIFORNIA, Appellant V. PUBLIC EMPLOYMENT RELATIONS BOARD et
al. No. 86-935. Argued Jan. 12, 1988. Decided April 20, 1988. State university sought review of Public Employment Relations
Board which upheld charge that it had violated state labor
relations law by refusing to carry un-stamped letters from union
to certain of its employees whom the union was attempting to
organize. The California Court of Appeals, 139 Cal.App.3d 1037,
189 Cal.Rptr. 298, remanded, and the PERB again found a
violation.
The Court of Appeal, 182 Cal. App.3d 71, 227 Cal.Rptr. 57,
affirmed and the California Supreme Court denied review. The
Supreme Court, Justice O'Connor, held that carriage of the
letters
by the university would not fall within the letters
of-the-carrier
exception to the Private Express Statutes and would not fall
within the private hands exception. Reversed. Justice White filed an opinion concurring in the
judgment. Justice Stevens filed a dissenting opinion in which
Justice
Marshall joined. Justice Kennedy did not participate. Opinion on remand, 248 Cal.Rptr. 815. 1. Post Office @29 Private Express Statutes established the United States
Postal
Service as a monopoly by prohibiting others from carrying letters
over postal routes. 18 U.S.C.A. §§ 1693-1699; 39 U.S.C.A. §§
601-606; U.S.C.A. Const. Art. 1, § 8, cl. 7. 2. Post Office @29 The "letters-of-the-carrier" exception to the Private
Express
Statutes allows operation of an internal mail system. 18 U.S.
C.A.
§ 1694. 3. Post Office @29 To fall within the "letters-of-the-carrier" exception to
the
Private Express Statutes, the letters must relate to the current
business of the carrier. 18 U.S.C.A. § 1694. 4. Post Office @29 Letters from union officer to university's employees
concerning unions efforts to organize certain of the employees
into a bargaining unit did not relate to the "current business"
of
the university and thus did not fall within the
"letters-of-the-carrier" exception to the Private Express
Statutes. 18 U.S.C.A. §
1694. See publication Words and Phrases for other judicial
constructions and definitions. 5. Post Office @29 From its inception, monopoly granted the Postal Service
has
always been limited to carriage of mail for hire. 18 U.S.C.A. §
1696(c); U.S.C.A. Const. Art. 1, § 8, el. 7. 6. Post Office @29 Persons or entities other than the United States Postal
Service may carry letters without violating the Private Express
Statutes only so long as they do not receive any form of benefit
from the sender; private-hands exception is available only when
there is no compensation of any kind flowing from the sender to
the carrier. 18 U.S.C.A. § 1696(c). 7. Post Office @29 Business relationship between sender and carrier of
letter
may render the private hands exception to Private Express
Statutes
unavailable, as acts undertaken in the course of such a
relation-ship may involve an exchange of benefits or a quid pro
quo. 18
U.S.C.A. § 1696(c). 8. Post Office @29 If university were to make its internal mail system to
carry
letter from union officer to university employees concerning
efforts to organize a collective bargaining unit, the carriage
would
not be without compensation and would not come within the
"private
hands" exception to the Private Express Statutes. 18 U.S.C.A.
§1696(c). See publication Words and Phrases for other judicial
constructions and definitions. 9. Post Office @29 Fact that sender would not pay carrier to deliver letter
would not preclude finding that there was compensation so that
the
carriage would not fall within the private hands exception to the
Private Express Statutes. 18 U.S.C.A. § 1696(c). 10. Post Office @29 Common-law notions of consideration do not control
interpretation of the private hands exception to the Private
Express Statute which requires that the carriage not involve any
compensation. 18 U.S.C.A. § 1696(c). Syllabus* The Private Express Statutes establish the postal
monopoly
and generally prohibit the private carriage of letters over
postal
routes without the payment of postage to the United States Postal
Service. On the basis of those statutes, the state university
(governed by appellant Regents and hereafter referred to as
appellant) refused the request of a union to use its internal
mail
system to carry un-stamped letters from the union to certain of
its employees whom the union was attempting to organize.
Appellee
Public Employment Relations Board (PERB) upheld the union's
charge
that appellant's refusal violated the requirement of the
California Higher Education Employer-Employee Relations Act
(HEERA) that employers grant unions access to their ,'means of
communication." Agreeing with this holding, but noting that the
HEERA right of access was expressly subject to "reasonable
regulations," the State Court of Appeal remanded for a
determination whether appellant's refusal was reasonable in light
of the surrounding circumstances, including the Private Express
Statutes. PERB then found that the HEERA requirement was
consistent with federal law because the carriage
involved fell
within the "letters-of-the-carrier" and the "private-hands"
exceptions to the Private Express Statutes. The Court of Appeal
affirmed, and the State Supreme Court denied review. Held.- Appellant's delivery of the union's un-stamped
letters would violate the Private Express Statutes. Pp.
1408-1413. (a) The letters-of-the-carrier exception, which
permits the
private carriage of letters that "relate" to the "current
business" of the carrier, does not apply. The alleged "business"
in this case-the union's efforts to organize appellant's
employees-although a subject in which appellant certainly is
interested, is not close enough to appellant's own affairs to be
__________ *The syllabus constitutes no part
of the opinion of the Court
but
has been prepared by the Reporter of
]Decisions for the
convenience of the reader. See United States v. Detroit
Lumber
Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. __________ the natural subject of letters concerning appellant's "current
business." It is a subject more accurately described as the
union's own current business. The argument that HEERA makes
harmonious labor relations the business of state universities,
thereby rendering the union's business appellant's business, is a
far too expansive reading of the exception, since that reading
would permit a State to define mail delivery as the "current
business" of some state agency and thereby defeat the postal
monopoly. Rather, the legislative history confirms that the
statutory language is much narrower than appellees contend, which
view is consistent with this Court's only previous decision concerning the exception, United States v. Erie R. Co.,
235 U.S.
513, 35 S.Ct. 193, 59 L.Ed. 335. Pp. 1408-1410. (b) Nor does the private-hands exception apply, since
delivery of the union's letters would violate the exception's
requirement that carriage be "without compensation." Giving the
quoted phrase its normal meaning, it is clear that Congress
unambiguously intended that no form of compensation, whether
direct or indirect, may flow from the sender to the carrier. An
arm's-length business relationship such as the one between the
union and the employees on the one side and appellant on the
other
ordinarily involves an exchange of benefits constituting
"compensation" for the carrier. By delivering the union's
un-stamped letters, appellant would perform a service for its
employees that they would otherwise pay for through their union
dues, which service would become part of the employees' package
of
monetary and non-monetary benefits that appellant provides in
exchange for their labor. Thus, the facts that the union would
not specifically pay for appellant's carriage of its letters, and
that appellant would merely be performing a duty imposed by state
law, do not render the carriage "without compensation." Pp.
1410-1412. (c) Because this Court's analysis of the
letters-of-the-carrier and private-hands exceptions and their
legislative history
reveals Congress' clear intent, the issue of deference to the
Postal Service's regulations construing the exceptions need not
be
addressed. Pp. 1412-1413. 182 Cal.App.3d 71, 227 Cal.Rptr. 57, reversed. O'CONNOR, J., delivered the opinion of the
Court, in which
REHNQUIST, C.J., and BRENNAN, BLACKMUN, and SCALIA, J.J., joined.
WHITE, J., filed an opinion concurring in the judgment, post,
p.
1413. STEVENS, J., filed a dissenting opinion, in which
MARSHALL,
J., joined, post, p. 1413. KENNEDY, J., took no part in
the
consideration or decision of the case. ___________ James N. Odle, Berkeley, Cal., for appellant. Christopher J. Wright, Washington, D.C., for U.S., as
amicus
curiae, supporting appellant, by special leave of Court. Andrea L. Biren, San Francisco, Cal., for appellees. Justice O'CONNOR delivered the opinion of the Court. This case presents the question whether a state
university's
delivery of un-stamped letters from a labor union to university
employees violates the Private Express Statutes, 18 U.S.C. §§
1693-1699, 39 U.S.C. §§ 601-606. These statutes establish the
postal monopoly and generally prohibit the private carriage of
letters over postal routes without the payment of postage to the
United States Postal Service. I Appellant Regents govern a large state owned university
with
over 100,000 employees. The university (hereafter referred to as
appellant) operates an internal mail system to facilitate the
delivery of mail to the various sites on its campuses.
Appellant's employees collect mail originating on the campuses
from many mail depositories and take it to a central location for
sorting. The mail is separated into three groups: (1) mail
already bearing United States postage; (2) un-stamped internal
university mail; and (3) other un-stamped mail. Group (1) is
delivered to the Postal Service without further handling by
appellant. Group (2) is monitored to ensure that it includes only official university mail. Group (3) is examined for any
letters addressed to university destinations that come within an
exception to the Private Express Statutes and can therefore be
delivered by the appellant without postage. Appellant affixes
United States postage to the remainder of mail in group (3) and
delivers it to the Postal Service, then charges the senders for
the costs involved. In late 1979, appellee William H. Wilson, president of
appellee Local 371 of the American Federation of State, County,
and Municipal Employees (Union), attempted to use appellant's
internal mail system to send un-stamped letters from the Union to
certain employees of appellant. The Union represented these
employees and had filed a request for recognition of a bargaining
unit. A subsequent unit determination, however, placed these
employees in a different bargaining unit. Brief for Appellee
Wilson 2, n. 2. Appellant refused to carry the letters in its
internal mail system on the ground that the Private Express
Statutes prohibited such carriage. Believing that this refusal
violated a state law, the Higher Education Employer-Employee
Relations Act (HEERA), Cal.Govt.Code Ann. §§ 3560-3599 (West
1980), Wilson and the Union filed an unfair labor practice charge
with appellee California Public Employment Relations Board
(PERB),
the state agency charged with interpretation and enforcement of
HEERA. Before PERB, appellant argued that the carriage of the
Union
letters would violate the Private Express Statutes; it relied on
an advisory opinion from the United States Postal Service to that
effect. Advisory Op., PES No. 82-9) (July 2, 1982), App. to
Juris. Statement A66. Wilson and the Union in turn argued that
refusal to carry the letters violated HEERA's requirement that
employers grant unions access to their "means of communication."
PERB initially declined to consider the federal law issues
pressed
by appellant and held that HEERA required delivery of the
letters.
The California Court of Appeal agreed with PERB's determination
that denial of access violated HEERA, but noted that the HEERA
right of access was expressly subject to "reasonable
regulations."
139 Cal. App.3d 1037, 1041, 189 Cal.Rptr. 298, 300301 (1983).
The court found an unresolved factual issue, namely, whether
appellant's denial of access was a "reasonable regulation" in
light of all the surrounding circumstances, including the Private
Express Statutes. It therefore remanded the case back to PERB
for
consideration of this issue. Id., at 1042, 189
Cal.Rptr., at 301.
On remand, PERB found this HEERA requirement to be consistent
with
federal law because it determined that the carriage involved was
within two different exceptions to the Private Express Statutes,
namely the "letters-of-the-carrier" exception, 18 U.S.C. § 1694;
39 CFR § 310.3(b) (1987), and the "private-hands" exception, 18
U.S.C. § 1696(c); 39 CFR § 310.3(c) (1987).(65) The California Court of Appeal affirmed. 182 Cal.App.3d
71,
227 Cal. Rptr. 57 (1986). The court concluded that the
"letters-of-the-carrier" exception permitted the delivery of the
Union's
letters through appellant's internal mail system. In light of
this conclusion, the court declined to address the
"private-hands"
exception. Id., at 77, 227 Cal.Rptr., at 60. The
California Supreme Court denied appellant's petition for review.
App. to
Juris. Statement A-13. We noted probable jurisdiction, 483 U.S.
1004, 107 S.Ct. 3226, 97 L.Ed.2d 733 (1987), and now reverse. II [1] Congress enacted the Private Express Statutes
pursuant
to its constitutional authority to establish "Post Offices and
post roads," U.S. Const., Art. I, § 8, cl. 7. In general these
statutes establish the United States Postal Service as a monopoly
by prohibiting others from carrying letters over postal
routes. A postal monopoly has prevailed in this country since the
Articles of Confederation, see Act of Oct. 18, 1782, 23 J.
Continental Cong. 672-673 (G. Hunt ed. 1914), and Congress
embraced
the concept in its first postal law, see Act of Feb. 20, 1792,
ch.
7, § 14, 1 Stat. 236. Because Congress desires "prompt,
reliable,
and efficient services to [postal] patrons in all areas," 39
U.S.C. § 101(a) (emphasis added), it has enacted the Private
Express Statutes and has provided for nationwide delivery of mail
at uniform rates. There is no doubt that the general prohibition would
apply to
the carriage involved here, see 18 U.S.C. §§ 1693, 1694, so the
central issue is whether such carriage is within one of the
numerous exceptions to the Private Express Statutes. Appellees
urge that both the "letters-of-the-carrier" and
"private-hands"
exceptions apply. We consider each in turn. A [2-4] The letters-of-the-carrier exception is founded on
the
portion of 18 U.S.C. § 1694 italicized below: "Whoever ... carries, otherwise than in the mail,
any letters or packets, except such as relate ... to
the current business of the carrier ... shall, except
as otherwise provided by law, be fined not more than
$50." (Emphasis added.) It is this exception that allows appellant to operate an
internal mail system at all. To fall within the exception, the
face of the statute requires that the letters "relate" to the
"current business" of the carrier. Precisely what constitutes a
carrier's "current business" is not further described. The
ordinary sweep of the term, however, falls far short of
encompassing the letters involved in this case. The letters
relate to the Union's efforts to organize certain of appellant's
employees into a bargaining unit. This is a subject in which
appellant certainly is interested, but it is also a subject which
can be accurately described only as the Union's current business,
not appellant's. It strains the statutory language to contend
that the phrase "current business" includes such activity. Appellees argue that California has through HEERA made
harmonious labor relations the business of its state
universities,
and thus in a sense the Union's business is the university's
business. Cf. Cal. Govt.Code Ann. § 3560(a) (West 1980)
("fundamental interest in the development of harmonious and
cooperative labor relations"). To be sure, a State generally is
free to define the nature of its institutions and the scope of
their activities as it sees fit. But this principle must have
some limits in this context for, otherwise, a State could define
delivery of mail to all its citizens as the "current business" of
some state agency and thereby defeat the postal monopoly.
Appellees are urging far too expansive a reading of the statute.
We rely on the normal meaning of the language chosen by Congress
and conclude that the letters-of-the-carrier exception does not
permit appellant to carry the Union's letters. The legislative history confirms our reading of the
statutory
language, making clear that the exception is a narrow one.
Congress added the letters-of-the-carrier exception to the
Private
Express Statutes in 1909. Until that time, the prohibition on
private carriage was unqualified. The new exception responded to
an Opinion of the Attorney General rendered in 1896. 21 Op.
Atty.Gen. 394, 397-399. That opinion concerned a Postal
Department regulation that allowed railroads to carry their own
mail. The Attorney General said that the regulation was valid
because two conditions were present. First, the letters were
related to the carrier's business. Second, the letters were
"letters sent by or addressed to the carrying company, or on its
behalf." Id., at 400. The Attorney General concluded
that
without the second condition, the implied exception would be too
broad. Congress generally approved of the Attorney General's
decision, but some Members found the exception difficult to
square
with the express, unqualified language of the statute. See 42
Cong.Rec. 1901-1905 (1908). Therefore a movement began to amend
the statute to include the present exception for letters that
relate to "the current business of the carrier."
Id., at 1976.
See Act of Mar. 4, 1909, ch. 321, § 184, 35 Stat. 1124. Senator
Sutherland, the sponsor of the specific amendment, explained its
intent: "I move that amendment because I think that it
puts in express language precisely what the section
means as it stands without it.... I think the opinion
of the Attorney-General ... gives the correct
construction to this section. The section is dealing
with the carrying of mail for others. It is not
dealing with the question of the carrying of the mail
for the carrier itself." 42 Cong.Rec. 1976 (1908). The House Report reflected a similar intent that the amendment
put
the statute "in exact conformity with the construction placed
upon
existing law." 43 Cong.Rec. 3790 (1909) (referring to 21
Op.Atty.Gen. 394 (1896)). This history suggests an intention to codify the Attorney
General's construction. That construction includes a requirement
that the letters be "sent by or addressed to the carrying
company,
or on its behalf," to qualify for the letters-of-the-carrier
exception. 21 Op.Atty.Gen., at 400. See also 29 Op.Atty.Gen.
418,
419 (1912) ("Congress has imposed two conditions upon the free
transportation of letters outside the mail: First, that the
letters should be the letters of the carrier itself; and second,
that they should relate to its own current business"); 28
Op.Atty.Gen. 537 (1910). Our only previous decision concerning the
letters-of-the-carrier exception, United States v. Erie R.
Co., 235 U.S. 513, 35
S.Ct. 193, 59 L.Ed. 335 (1915), is consistent with a narrow view
of the statutory language. Erie involved carriage by a
railroad
of letters concerning a joint venture between the railroad and a
telegraph company. The Court simply held that the "business of
the carrier" included the business of the joint enterprise.
Erie
therefore sheds no light on the proper construction of the
statute
in this quite different context. Moreover, the specific letters
involved in Erie fall within our view of the proper
scope of the
statute. They were written by an employee of the railroad in his
official capacity and addressed to other employees in their
capacities as representatives of the railroad. Particularly in light of the clarifying legislative
history,
we conclude that the letters-of-the-carrier exception is far
narrower than appellees would have it. Cf. Tanner v.
United
States, 483 U.S. 107, 125, 107 S.Ct. 2739, 2750, 97 L.Ed.2d
90
(1987); Dixson v. United States, 465 U.S. 482, 491-496,
104 S.Ct.
1172, 1177-1180, 79 L.Ed.2d 458 (1984). Whether or not it can be
read to include a requirement that the letters be written by or
addressed to the carrier, a question we need not reach, it is at
least limited to "business of the carrier" that is closer to the
carrier's own affairs than the letters involved here. The
alleged
"business" in this case is not close enough to appellant's
affairs
to be the natural subject of letters concerning appellant's
"current business." Accordingly, we hold that the
letters-of-the-carrier exception does not permit appellant to
carry the Union's
letters. B The private-hands exception derives from 18 U.S.C. §
1696(c): "This chapter shall not prohibit the
conveyance or transmission of letters or packets
by private hands without compensation." [5] From its inception, the monopoly granted the Postal
Service had always been limited to the carriage of mail "for
hire." See Act of Oct. 18, 1782, 23 J.Continental Cong. 670,
672-673 (G. Hunt ed. 1914); Act of Feb. 20, 1792, ch. 7, § 14, 1
Stat. 236. The private-hands exception is a reflection of the
limited nature of the monopoly; it was designed to ensure that
private carriage is not undertaken "for hire or reward," Ibid.
While the limited nature of the postal monopoly always implied
that private, gratuitous carriage was excepted from the
prohibitions of the Private Express Statutes, Congress made the
exception express in 1845, at a time when it was greatly
concerned
with the dwindling revenues of the Postal Service. See S.Rep.
No.
137, 28th Cong., 1st Sess., 1, 10 (1844); H.R.Rep. No. 477, 28th
Cong., 1st Sess., 1 (1844). To increase postal revenues,
Congress
lowered prices and limited franking privileges. Congress also
sought to boost revenues by eliminating competition. Therefore,
it strengthened the general prohibition on private carriage,
intending to "put an end to all interference with the
revenues of
the department" from that source. S.Rep. No. 137,
supra, at 10.
Against this backdrop, Congress developed a narrow
exception for
carriage by "private hands," crafting the exception in such a way
as to permit only gratuitous carriage undertaken
out of
friendship, not pursuant to a business relationship. H.R.Rep.
No.
477, supra, at 4 ("Penalties are
provided .. with exceptions in
favor of the party ... who conveys the letter out of neighborly
kindness, without fee or reward"). [6] Congress used unambiguous language
to accomplish its
goals. Persons or entities other than the United States Postal
Service -i.e., "private hands"- may carry letters without
violating the Private Express Statutes only so long as they do
not
receive any form of benefit from the sender -i.e., "without
compensation." While the pivotal term, "compensation," is not
further defined, Congress in no way qualified its reach. We
therefore give effect to congressional intent by giving the
language its normal meaning. A dictionary from the period during
which the private-hands exception was enacted illustrates the
general nature of the term; it defines compensation to include
"that which supplies the place of something else" and "that which
is given or received as an equivalent for services, debt, want,
loss, or suffering." N. Webster, An American Dictionary of the
English Language 235 (C. Goodrich ed. 1849). Accordingly, we
hold that the private-hands exception is available only when
there
is no compensation of any kind flowing from the sender to the
carrier. [7] A business relationship between the
two parties may
render the exception unavailable, because acts undertaken in the
course of such a relationship may involve an exchange of benefits
or a quid pro quo.(66) which added the letters-of-the-carrier exception, Senator
Sutherland expressed concern that adding such an exception would
permit railroads to agree to carry mail for each
other. He was
concerned that by undertaking such carriage pursuant to "some
common understanding," the railroads "would not be carrying for
compensation." Senator McLaurin, one of the supporters of
amendment, responded: "[A]n arrangement of that
kind ... would
itself be for compensation. It would be a quid pro quo and it
would violate the law." Senator Sutherland evidently accepted
this view for, as noted above, he sponsored the actual amendment
that became the letters-of-the-carrier exception. The
construction Congress placed on the private-hands exception is
perhaps best summarized through Senator McLaurin's statement that
an exception for carriage without compensation was intended
solely
to permit "an innocent man... to do a favor to some[one]." 42
Cong.Rec. 1905 (1908). A business relationship ordinarily
converts such "favors" at the very least into implicit attempts
to
further the business relationship. The private-hands exception consistently has been
interpreted
as not authorizing carriage pursuant to a business relationship.
Thus, "compensation" has been read to encompass the non-monetary
consideration that is implicit in a business relationship.
United
States v. Thompson, 28 F.Cas. 97 (No. 16,489) (DC
Mass.1846).
Thompson involved the prosecution of the proprietor of a
delivery
service for carrying letters along with other merchandise. The
defendant argued that he carried letters only in connection with
delivery of other merchandise and that he received no additional
compensation for carrying the letters with the merchandise. In
essence, the defendant contended that he carried the letters only
as a gesture of good will. The court rejected this argument,
holding that the statute did not permit the carriage of letters
"as a part of his business of a merchandise express, although no
charge was made for letters as such." Id., at 98. The Attorney General took a similar view of the
exception's
scope when he opined that railroads could not agree to carry each
other's mail, because the "express or implied obligation of
railroads to carry letters for each other ... would amount to
'compensation' within the meaning of the statute." 21
Op.Atty.Gen., at 401. [8,9] Applying this well-established construction to the
situation at hand, we conclude that appellant's carriage of the
Union's letters would not be "without compensation." Appellees
initially argue that there would be no compensation because the
Union would not pay appellant specifically to carry the letters.
This obviously gives far too restrictive a reading to the term
"compensation." That term includes indirect as well as direct
compensation. If we read the exception to include any private
carriage so long as no direct payment is made, it quickly would
swallow the rule; senders and carriers could manipulate their
relationships to avoid direct compensation and thereby evade the
Private Express Statutes. [10] Appellees also argue that compensation would be
lacking
because appellant merely would perform a mandatory duty imposed
by
state law. This lack of legal consideration, appellees argue,
demonstrates that the carriage is not part of any business
relationship. As a matter of general contract law, it may be
true
that performance of a legal duty cannot constitute legal
consideration. Common-law notions of consideration, however, do
not control the interpretation of this statute. Congress, after
all, used the generic term "compensation," which can include less
direct exchanges of benefits. Here there is an arm's-length business relationship
between
the Union and the employees on the one side and appellant on the
other. By delivering the Union's letters, appellant would
perform
a service for its employees that they would otherwise pay for
themselves, through their union dues. This service would become
part of the package of monetary and non-monetary benefits that
appellant provides to its employees in exchange for their
services. In our view, carriage of the Union's letters pursuant
to such an exchange of benefits necessarily means that the
carriage is not "without compensation." Accordingly, it does not
fall within the private-hands exception. C The parties and the United States as amicus curiae
have
focused their arguments largely on Postal Service regulations
construing the letters-of-the-carrier and the private-hands
exceptions. With respect to the letters-of-the-carrier
exception,
the Postal Service has consistently read the statute to require
that the letters be written by or addressed to the carrier. Even
before the Service issued formal regulations, it espoused this
view in periodic pamphlets it published describing the reach of
the Private Express Statutes. See, e.g., United States
Post
Office Dept., Restrictions on Transportation of Letters 16-17
(4th
ed. 1952). When it issued formal regulations, the Postal Service
included the requirement that the letters be the carrier's
own: "The sending or carrying of letters is permissible
if they are sent by or addressed to the person carrying
them. If the individual actually carrying the letters
is not the person sending the letters or to whom the
letters are addressed, then such individual must be an
officer or employee of such person (see [39 CFR] §
310.3(b)(2)) and the letters must relate to the current
business of such person." 39 CFR § 310.3(b) (1987). The Postal Service's regulations also read "compensation"
for
purposes of the private-hands exception in a way consistent with
our evaluation of the term. They describe the exception's scope
as follows: "The sending or carrying of letters without
compensation is permitted. Compensation generally
consists of a monetary payment for services rendered.
Compensation may also consist, however, of non-monetary
valuable consideration and of good will. Thus, for
example, when a business relationship exists or is
sought between the carrier and its user, carriage by
the carrier of the user's letter will ordinarily not
fall under this exception." § 310.3(c). Appellant and the United States have urged us to defer to
these agency constructions of the statute. While they reach a
different conclusion as to the proper application, appellees
specifically indicated at oral argument that they were not
challenging the validity of the regulations. Tr. of Oral Arg.
33.
Because we have been able to ascertain Congress' clear intent
based on our analysis of the statutes and their legislative
history, we need not address the issue of deference to the
agency. III The California Court of Appeal incorrectly concluded that
the
carriage of letters involved in this case was within an exception
to the Private Express Statutes. Properly construed, neither of
the statutory exceptions proffered by appellees -the
letters-of-the-carrier exception and the private-hands exception-
permits
appellant to carry the Union's letters in its internal mail
system. Accordingly, the judgment of the California Court of
Appeal is Reversed. Justice KENNEDY took no part in the consideration or
decision
of this case. Justice WHITE, concurring in the judgment. The issue here is the proper interpretation of the
letters-of-the-carrier and the private mail exceptions to the
Private
Express Statutes. In reaching a decision we must deal with the
Postal Service regulations construing these exceptions; for those
regulations, which the majority sets out in its Part II-C, must
be
respected unless they are inconsistent with the statute-unless
either or both are clearly foreclosed by the language or
legislative history of the governing statute. If Congress has
expressly spoken on the precise issue at hand, the agency must of
course not stray from that legislative intent in enforcing the
statute. Chevron U.S.A. Inc. v. Natural Resources
Defense Council,
Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 2781-2782, 81
L.Ed.2d
694 (1984). But if there is more than one rational construction
of the statute, the agency's view should normally be
respected. Here, as I see it, the language of neither exception
settles
the matter. That should end the inquiry unless the legislative
history clearly negates the agency's view expressed in the
regulations. Where the statute itself is not determinative and
is
open to more than one construction, the legislative history must
be quite clear if it is to foreclose the agency's construction as
expressed in its regulations, which is surely not the case
here. Inquiry into that history may lead a court to conclude
that
the agency's interpretation is not only permissible but is also
the only acceptable construction of the law. But even on the
majority's own description of the statutory background, I am
unable to conclude that the agency could not have adopted, and
could not now adopt, a view of the exceptions that would, on the
facts of this case, have reflected the views urged by appellees,
particularly with respect to the private mail exception. Accordingly, I concur in the judgment. Justice STEVENS, with whom Justice MARSHALL joins,
dissenting. It is clear to me that the university's compliance with
the
state-law requirement that it allow the Union free use of its
internal mail system to send un-stamped letters to its employees
would constitute delivery "by private hands without compensation"
within the meaning of 18 U.S.C. § 1696(c). I therefore
respectfully dissent. The construction of the Private Express Statutes urged by
the
Government and adopted by the majority broadens the scope of the
federal monopoly beyond that envisioned by the Continental
Congress when it passed the first statutes defining the postal
monopoly in 1782, and by Congress when it reenacted those
statutes
in 1792 and amended them in 1825, 1845, and 1909. This broad
construction is contrary to the statutory language and hostile to
the wisdom of narrowly construing the legislation that created
the
powerful and far-reaching postal monopoly. There are at least
three important reasons to construe the Private Express Statutes
narrowly. First, the statutes impose criminal penalties for
their
violation. Though the sanctions are modest and seldom imposed,
the rule of lenity requires a strict construction of the
statutes'
provisions. Second, the statutes grant an economic monopoly.
Even though the Federal Government is the proprietor of the
monopoly, this Nation's tradition of opposition to monopolistic
privileges supports a policy of strict construction. Third, and
of greatest significance, expanding the monopoly beyond the
bounds
delimited by Congress will inevitably curtail the volume of
communication that would otherwise be exchanged in a free
society. It is quite wrong to assume that a private carrier, such
as a
university, that allows a third party to use its internal mail
delivery system without charge is necessarily depriving the
Postal
Service of significant revenues. Many messages that can be sent
free of charge will simply not be sent at all if the sender is
required to pay a user fee in the form of postage for the
privilege of communicating in this way. As Justice WHITE has
correctly noted, no one can question the fact that this "user fee
measurably reduces the ability of various persons or
organizations
to communicate with others." United States Postal
Service v.
Greenburgh Civic Assns., 453 U.S. 114, 141, 101 S.Ct. 2676,
2691,
69 L.Ed.2d 517 (1981) (concurring in judgment). The facts of the
Greenburgh case demonstrate that there are many worthwhile civic
groups whose ability to communicate with their constituents is
seriously impaired when they must pay postage instead of using
private methods of distribution. Id., at 119-120, 101
S.Ct. at
2680-81. Thus, a broad prohibition against the use of free
private facilities imposes a real burden on the First Amendment
right to communicate which may well be more significant than the
uncertain loss of revenue to the Postal Service. The "First
Amendment's guarantee of free speech applies to ... teacher's
mailboxes as surely as it does elsewhere." Perry Education
Assn.
v. Perry Local Educators' Assn., 460 U.S. 37, 44, 103 S.Ct.
948,
954, 74 L.Ed.2d 794 (1983). I The monopoly granted by Congress to the Postal Service is
limited to the right to deliver mail for "hire, reward, or other
profit or advantage." The delivery of mail without compensation
does not infringe this monopolistic grant, and the statutes
creating the monopoly have always permitted the private delivery
of mail without profit. The first statute granting monopoly
privileges to the Postal Service was enacted by the Continental
Congress in 1782. It provided: "[T]he Postmaster General of these United States
for the time being, and his deputy and deputies,
hereunto by him sufficiently authorized, and his
and their agents, post-riders, expresses and messengers
respectively, and no other person
whatsoever, shall have the receiving, taking up,
ordering, despatching, sending post or with speed,
carrying and delivering of any letters, packets or
other despatches from any place within these
United States for hire, reward, or other profit or
advantage...." Act of Oct. 18, 1782, 23
J.Continental Cong. 670, 672-673 (G. Hunt ed.
1914). (Emphasis added.) When Congress reenacted the substance of this statute in 1792,
Act
of Feb. 20, 1792, ch. 7, § 14, 1 St-at. 236, the language it
chose
again made clear that the monopoly being granted was limited to
the right to deliver mail for profit: "That if any person, other than the Postmaster
General, or his deputies, or persons by them
employed, shall take up, receive, order, dispatch,
convey, carry or deliver any letter or letters,
packet or packets, other than newspapers, for hire
or reward, or shall be
concerned in setting up any
foot or horse post, wagon or other carriage, by or
in which any letter or packet shall be carried for
hire, on any established post-road, or any packet,
or other vessel or boat, or any conveyance
whatever, whereby the revenue of the general post-office may be
injured, every person, so offending,
shall forfeit, for every such offence, the sum of
two hundred dollars." Ibid. (Emphasis added.) In 1825 Congress repealed all previous postal statutes in
favor of a new postal law. Act of Mar. 3, 1825, ch. 64, 4 Stat.
102. The new statutes continued the monopoly, but substantially
weakened the prohibitions against the private carriage of mail.
See id., §§ 6, 17, 19, 4 Stat. 104, 106, 107;
United States v.
Kimball, 26 F.Cas. 782 (No. 15,531) (DC Mass.1844) (holding
that
1825 statutes as amended, Act of Mar. 2, 1827, ch. 61, § 3, 4
Stat. 238, did not prohibit the carriage of letters for profit by
railroad); Craig & Alvis, The Postal Monopoly: Two Hundred
Years
of Covering Commercial as Well as Personal Messages, 12
U.S.F.L.Rev. 57, 72 (1977). This weakening encouraged the
proliferation of private express companies. In 1845 Congress
responded by enacting new legislation "to reduce the rates of
postage, to limit the use and correct the abuse of the franking
privilege, and for the prevention of frauds on the revenues of
the
Post Office Department." Act of Mar. 3, 1845, ch. 43, 5 Stat.
732.
The 1845 Act was intended to protect the Postal Service from
competition, but, at the same time, Congress saw fit to continue
to allow the private delivery of mail without charge.
Accordingly, the 1845 statute emphasized the distinction between
the private delivery of mail for profit-which was prohibited-and
private delivery when there was "no compensation being tendered
or
received therefor in any way" -- which was not. Id. At
736. The Private Express Statutes as they are codified today
are
not substantially different from those enacted in 1845. Title 18
U.S.C. § 1696(c) provides: "This chapter shall not prohibit the
conveyance or transmission of letters or packets by private hands
without compensation." The history of this provision makes clear
that although articulated as an exception, the exemption for mail
delivered by "private hands"(67)
It seems doubtful that Congress envisioned when it created the postal monopoly the development of internal mail systems, such as those that are now found in large universities or large apartment complexes, and much more doubtful that it intended to impose a burden on the free flow of communication within such places. Since the attention of Congress was focused on the actions of common carriers who were being paid to deliver federal mail and on competing private enterprises that were imposing charges similar to postage for their services, I cannot believe Congress intended to interfere in any way with not-for-profit civic organizations such as schools or universities in their provision of uncompensated delivery services or with any other delivery of mail without anticipation of "reward or other profit or advantage." Act of Oct. 18, 1782, 23 J. Continental Cong., at 672-673.
This interpretation of the scope of the monopoly authorized by the Private Express Statutes is confirmed by the fact that prior to 1979 the applicable postal regulation unambiguously permitted "the sending or carrying of letters ... if no charge for carriage [was] made by the carrier." 39 CFR § 310.3(c) (1979).(68)
Under the plain language of this regulation it would have been difficult to argue that appellant could not make its internal mail delivery system available to the Union without infringing on the legitimate scope of the federal postal monopoly. In 1979, however, the Service amended the regulation because it thought the regulation suggested too narrow a construction of the word "compensation." The regulation was amended to make clear that compensation could "consist ... of non-monetary valuable consideration and of good will." 39 CFR § 310.3(c) (1987). Although this "clarification" was not intended to change the law, see 43 Fed.Reg. 60615, 60618 (1978); Advisory Op., PES 76-4 Reconsidered (Jan. 15, 1982), in this case the Service seeks to parlay the "clarification" into an unprecedented expansion of the postal monopoly.
II
Even as "clarified" the Private Express Statutes and the regulation interpreting the private-hands exception do not support the conclusion that appellant would violate the postal monopoly if it delivered mail to its employees on behalf of the Union. Appellant's delivery of the mail could only violate the postal monopoly if it were somehow compensated for its delivery. The argument that appellant's carriage of letters under the compulsion of state law would generate "compensation" of its own force merely because appellant has a business relationship with the sender and the recipients of the mail must be rejected as contrary to the express language of the Private Express Statutes and to the historical contours of the monopoly given the Postal Service.
Compensation may take many forms; it is not necessarily monetary. It may, as the Postal Service expressed in its Advisory Opinion when appellant asked whether its delivery of the Union's letters would violate the Private Express Statutes, include such intangibles as "good will," "forbearance of demands for benefits," or the "facilitation of a continuing relationship." Advisory Op., PES No. 82-9 (July 2, 1982), App. to Juris. Statement A66, A71. But these intangibles may be recognized as compensation only if they have value to the recipient. Recognition that compensation may take an intangible form does not diminish the requirement that the recipient receive something of value in exchange for the costs it incurs when it undertakes the carriage, that is, that it receive some benefit on account of the carriage. Appellant's delivery of the Union's letters would fall squarely within the private-hands exception unless some benefit would flow directly to it as a result of its carriage of letters for the Union.
I have been unable to identify any benefit
that appellant
will acquire if it begins to fulfill its obligation under state
law to allow the Union to use its mail system. The state statute
that creates the obligation does not mandate, or even appear to
contemplate, that appellant will receive compensation for
complying with this duty.(69)
Further, it has not been suggested
that the Union intends nonetheless to provide some compensation
to
appellant. Thus the question becomes whether despite the
absence
of any requirement that the Union compensate
appellant and the
lack of any intention on the part of the Union
to compensate
appellant, some intangible compensation will necessarily flow
from
the Union or some other source when appellant
begins to fulfill
its state-law obligations. There is no reason to suspect that appellant will benefit
from any increased good will towards it on the
part of the Union.
Although such good will might conceivably be generated if
appellant were to provide the service out of the kindness of its
heart, no good will, at least no good will that qualifies as
compensation, can be thought to arise merely because an entity
does precisely what state law compels it to do. No business can
establish good will-"'[s)omething in business which gives
reasonable expectancy of preference in race ... of
competition'"(70)
I also do not find in the record any evidence that a benefit will now from appellant's employees to it on account of its delivery to them of mail from the Union. Appellant's employees are currently obligated to provide their services to appellant without regard to whether appellant complies with its state-law obligation to allow the Union access to its mail system. Appellant's compliance will not increase its employees' obligations to it one whit.
Appellant contends that the Postal Service "has consistently taken the position that any business relationship between the carrier and the sender or recipient defeats the gratuitous character of the carriage." Brief for Appellant 35. In fact the Postal Service's concept that compensation is implicit in any business relationship was adopted for the first time in this case.(71) As the Postal Service admitted in its Advisory Opinion, this case is distinguishable from those previously considered by the Postal Service in that the Union involved is not the collective-bargaining agent of the carrier and the carriage would not be voluntarily undertaken. Advisory Op., PES No. 82-9 (July 2, 1982). App. to Juris. Statement A66. It is one thing to recognize, as the Postal Service has previously, that in a business setting voluntary gratuitous acts often benefit the actor in a concrete way and quite another to conclude that merely because a business relationship exists between the parties any action, even though compelled by state law, that benefits the other party generates compensation.
The only previous judicial interpretation of the private-hands-without-compensation exception, United States v. Thompson, 28 F.Cas. 97 (No. 16,489) (DC Mass.1846), provides no support for the concept of "implicit-in-the-relationship compensation" relied on here by appellant and by the majority. In Thompson the District Court held that the exception did not permit a private carrier of merchandise to carry letters "in connection with, or as part of his business of a merchandise express, although no charge was made for letters as such." Id., at 98. The court recognized that the mere fact that defendant did not charge a fee for the delivery of letters "as such" did not mean that he was not compensated for the delivery. Indeed, the fact of compensation was obvious from the fact that defendant delivered letters only on behalf of persons who hired him to deliver merchandise. The court's rejection of defendant's argument that his delivery of letters fell within the private-hands exception because he did not charge a distinct fee for the delivery of letters did not rest on the mere existence of a business relationship between the merchandise carrier and the parties on whose behalf he delivered the letters, but rather on the recognition that the provision of that service enhanced the profitability of the merchant's business. This increase in profitability provided compensation to the merchant for the carriage service.(72)
The instant case is clearly distinguishable from Thompson and from the other factual settings in which the Postal Service or the Attorney General has considered the scope of the exception.(73) The very fact that the majority and the Postal Service find it necessary to articulate the broad rule that compensation arises solely from the existence of a business relationship between the carrier and the recipient or sender in order to take this case out of the exception proves that this case represents an attempt to expand the scope of the Postal Service monopoly by narrowing the reach of the exception.
The policies behind the Private Express Statutes would not be impaired by recognizing that this case falls within the private-hands exception. The enactment of the private hands exception itself reflects a decision to forgo whatever revenues might be generated by expanding the scope of the postal monopoly to encompass all deliveries of written messages by private parties. Moreover, the legislative history of the statute does not support the majority's position that the exception for carriage by private hands without compensation was designed "solely to permit 'an innocent man ... to do a favor to some[one].' " Ante, at 1411. As discussed supra, at 1414-1416, the concept that the monopoly given the Postal Service did not encompass the delivery of mail by private parties without compensation had its origin with the birth of the monopoly. Nothing in the legislative history of the statutes creating the monopoly explains why the Continental Congress and later Congress decided to so limit the scope of the monopoly.(74) The language that the majority seeks to rely on is actually an excerpt from a debate concerning a proposed, but never passed, amendment to 18 U.S.C. § 1694, which now contains the letters-of-the-carrier exception.
During the Senate's debate on how to amend § 1694 to insure that railroads could carry their own urgent letters without violating the Private Express Statutes, Senator McLaurin and Senator Teller proposed that the words "for hire" or "for compensation" be added to the statute, so that the statute would allow common carriers to carry mail provided that they did not do so "for hire." 42 Cong.Rec. 1902, 1903 (1908). Senator McLaurin spoke in favor of the amendment saying,
"[M]y greatest objection to this provision is that some stage driver who happens to be making regular trips would, if he were, out of the kindness of his heart, to take a letter for some friend and deliver it to another friend on the way, be liable to pay a fine of $50.... I think, therefore, that the amendment offered ... would accomplish a great deal of good. It will make clear the construction that was given to it by Attorney-General Harmon, and it will not be necessary to construe this section.
"My idea about it is, though, that there ought to be some provision whereby an innocent man, probably one in an humble position and following an humble pursuit, would not stumble into a pitfall when, out of the goodness of his heart, he was trying to do a favor to some friend of his or to somebody, whether he was a friend or not." Id., at 1905.
In further debate the following day, the amendment was rejected in favor of the amendment proposed by Senator Sutherland, which we now know as the letters-of-the-carrier exception. Id., at 1976. A brief colloquy over 60 years after the passage of the 1845 Act about a proposed-but-never-adopted amendment is a slender reed on which to base the Court's wholly unnecessary and unwise interpretation of this ancient monopoly.
I respectfully dissent.
1. Ind. Code Ann. §7.5-1-2(k)(Burns 1975). The exact language of the contract is:
Article II
Association Rights and Responsibilities
Section 2 - Communications
C. The Association (PEA] is permitted access to teacher's mailboxes in which to insert material, provided the Association makes a copy available to the building principal in advance of the distribution. The Association's sponsorship shall appear on all materials which are distributed through teachers' mailboxes. The rights and privileges of the Association, acting as the representative of the teachers, asset forth in Article II, Section 2 part C of this agreement shall not be granted to any other school employee organization as defined in IC 1971, 20-7.5 more commonly known as PL 217.
D. The association shall be permitted to use the interschool mail system provided that the school corporation shall have no obligation to make special arrangements, incur extra expenses, or devote time beyond that required for interschool mailing normally and routinely instituted by the school corporation. The rights and privileges of the Association, acting as the representative of the teachers as set forth in Article II, Section 2 part D of this Agreement, shall not be granted to any other school employee organization as defined in IC 1971, 20-7.5 more commonly known as PL 217.
2. The Indiana Education Employment Relations Board prohibited either union from using the mail system immediately before the 1977 election, so we presume that they would do so in the event of another election. Note that Indiana law requires at least two years to elapse between elections. Ind. Code Ann. §20-7.5-1-10(c)(4) (Burns 1975).
3. The plaintiffs also made a pendent state law claim, but they do not press it on appeal.
4. On the former point, see generally Geed, Unionization of Survey Analysis of Collective Bargaining in the Public Schools, 15 Willamette L. Rev. 367 (1979). On the latter, see Elrod v. Burns 427 U.S. 347, 360-61. 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). See generally Van Alstyne. The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L.Rev. 1439 (1968).
5. Cf. Teachers Local 399 v. Michigan City Area Schools, 499 F.2d 115, 86 LRRM 2075 (7th Cir. 1974), also out of Indiana, which involved similar substantive issues. While that case was on appeal. Indiana passed a comprehensive statute regulating collective bargaining by public school teachers and establishing the Indiana Education Employment Relations Board to adjudicate complaints under it. We did not reach the constitutional issues because of the requirement that the minority union exhaust its
newly available state
administrative remedy. As noted in the
text of this opinion, the IEERB has since ruled similar
exclusive-rights provisions valid under state law, and so, as the
parties implicitly agree, it would be futile to require
exhaustion in this case.
See, e.g., notes 16-26 infra.
7. The only case we have found holding
unconstitutional a school
district's refusal to grant a minority union access to teachers
mailboxes or
other facilities while granting such privileges to a majority
union is
Teachers Local 399 v. Michigan City Area Schools, No. 724;-94
(N.D. Ind. Jan.
24, 1973). vacated on other grounds, 499 P.2d 115, 86 LRRM 2075
(7th Cir.
1974). Cf. Clifford v. Moritz, 472 F.Supp. 1094 (S.D. Ohio 1979)
(granting
Preliminary injunction against state agency's rule that permitted
non-employed
union organizers access to state mental hospital grounds only if
the union
already had as members at least ten percent of hospital employees
statewide);
University of Missouri at Columbia-National Education Association
v. Dalton.
456 F.Supp. 985, 99 LRRM 2570 (W.D. Mo. 1978) (striking down rule
barring all
union access to university mail).
Rejecting such claims are: Connecticut State Federation of Teachers v. Board of Education. 538 P.2d 471, 92 LRRM 3011 (2d Cir. 1976); Memphis American Federation of Teachers Local 2032 v. Board of Education, 534 F.2d 699, 92 LJTRM 2348 (6th Cir. 1976); Teachers Local 3724 v. North St. Francis County School District, 103 LRRM 2865 (E.D. Mo. 1979); Haukedahl v. School District No. 108, No. 75-C-3641 (N.D. Ill. May 14.1976); Federation of Delaware Teachers v. De La Warr Board of Education, 335 F.Supp. 385. 78 LRRM 2764 (D.DEL 1971); Local 858, American Federation of Teachers v. School District No. 1. 314 F.Supp. 1069, 74 LRRM 2385 (D.Colo, 1970); Maryvale Education Association v. Newman, 70 A.D. 2d 758, 416 N.Y.S. 2d 876, appeal denied. 48 N.Y. 2d 605, 424 N.Y.S. 2d 1025 (1979); Geiger v. Duval County School Board. 357 So.2d 442, 98 LRRM 2007 (Fla. App. 1978); Clark County Classroom Teachers Association v. Clark County School District. 91 Nev. 143, 532 P.2d 1032. 89 LRRM 21 10 (1975) (alternative holding).
This tabulation does
not include constitutional challenges by minority
unions to exclusive rights that do not directly involve
communication, such 93
a dues checkoff. Such challenges have uniformly been rejected.
The leading
case is Bauch v. City of New York. 21 N.Y. 2d 599, 237 N.E.2d
211, 289 N.Y.S.
2d 951. 67 LRRM 2994 cert. denied, 393 U.S. 934, S.Ct. 108, 21
L.Ed.2d 105, 69
LRRM 2435 (1968). Many of the cases cited in the preceding
paragraph also
involved such issues; see also County Employees Local 22 v.
County of
Sacramento, 28 Cal. App. 3d 424, 104 Cal. Rptr. 619, 81 LRRM 2841
(1972). Although these cases invariably treat both sorts of
exclusive right as
equivalent, we think they may be distinguishable. See note 47
infra.
8. 29 U.S.C. §§151-169 (1976).
9. NLRB v. Northeastern University, 601
P.2d 1208, ,217, 101
LRRM 2767 (1st Cir. 1979): Dreis & Knunp Mfg. Co. v. NLRB,
544
P.2d 320.93 LRRM 2739 (7th Cir. 1976); NLRB v. Van Lines. 599
F.2d 719, 101 LRRM 3031 (5th cir. 1979),, International
Association of Machinists. & Aerospace Workers. District No.
9 v.
NLRB, 415 P.2d 113, 72 LRRM 2206 ( 8th Cir. 1969); Container
Corp. of America 244 NLRB No. 53 at 101, 102 LJTRM 1162 (1979);
Ford Motor Co. (Rouge Complex), 233 NLRB 698, 96 LRRM 1513
(1977); McDonnell Douglas Corp., 210 NLRB 280. 86 LRRM 1164
(1974). Cf. Teamsters Local 515 (Roadway Express. Inc.) 248
NLRB 83,103 LRRM 1318 (1980) (can forbid insurgents to post
notices on union bulletin board when an equivalent facility - an
adjacent bulletin board - is available): General Motors Corp..
Frigidaire Division. 240 NLRB 168, 100 LRRM 1283 (1979) (suggests
distinction between distribution of literature and posting of
notices). See also Midwest Stock Exchange, Inc. v. NLRB. 635
Fl.2d 1255, 105 LRRM 3172 (7th Cir.
1980).
Such discrimination cannot be justified on grounds of
cost, for it
is an unfair labor practice for an employer to "Contribute
financial or other
support" to "any labor organizations. National Labor Relations
Act §8(a)(2),
20 U.S.C. 1158(a)(2) (1976). Some forms of assistance to union
efforts to
communicate with employees may be permissible "cooperation"
rather than
unlawful "support". but not assistance that discriminates against
a disfavored
union. See, e.g., Chicago Rawhide Mfg. Co. v. NLRB. 221 F.2d
165, 170. 35
LRRM 2665 (7th Cir. 1955),. R. Gorman, Basic Text on Labor Law
200-03 (1976).
Employers may ban on-site communication between employees where
physically
necessary for efficient business operations. Beth Israel
Hospital v. NLRB,
437 U.S. 483, 491-93, 301-05, 98 S.Ct. 2463. 57 L..Ed.2d 370. 98
LRRM 2727
(1978): Republic Aviation Corp. v. N.L.R.B.. 324 U.S. 793.
801-03, 65 S.Ct.
982. 89 LEd. 1372, 16 LRRM 620 (1945). But if one labor
organization is
allowed to communicate through a particular channel. exclusion of
other obviously cannot be Justified by physical necessity.
11. E.g.. @x. Im v. NLRB, 437 U.S. 556.
98 S.Ct. 2505, 57 LRRM 429, 98
LRRM 2717 (1978) (criticism of federal and gate labor laws
protected); General
Motors Corp., 211 NLRB 980. 87 @M 1167 (1974). enforced In
relevant part. 512
P.2d 447. 89 LRRM 2431 (6th Cir. 1975) (literature concerning
dates for intra-union election protected).
12. See National Labor Relations Act
12(2). 29 U.S.C. 1152(2) (1976).
13. The Indiana Education Employment
Relations Board qualified Pike by
stating that it "expresses no opinion concerning the use of
school facilities
for meetings held by an exclusive representative for purposes
other than for
the discharge of the exclusive representative's duties of
representing the
bargaining unit and its individual members". But PEA's right of
access here
is not so limited; even if It were, that would not change the
result. See
page 28 infra.
14. This case presents a problem of
labor relations, and although
the problem is in the context of public employment, this does
not alter its essential character. Plaintiffs are a labor
union and its officials and members, and they are seeking to
utilize only those internal channels of school communication
which are not traditionally of a public nature for the purpose
of furthering the goals of their union .... Thus. we do not
accept plaintiffs characterization of the issue as one of alleged
impairment of broad First Amendment rights.
Local 858. American
Federation of Teachers v. School District No. 1 , 314
F.Supp. 1069. 1075, 74 LRRM 2385 (D.Colo. 1970). quoted im e.g..
Connecticut
SFT, 538 P.2d at 480-81.
15. Gilmore v. City of Montgomery. 417
U.S. 556, 94 S.Ct. 2416, 41
L.Ed.2d 304 (1974): City of Trenton v. New Jersey. 262 U.S. 182.
191-92, 43
S.Ct. 534. 67 L.Ed.2d 937 (1923). See Stone. 16. Perry v. Sindermam 408 U.S. 593.92
&Ct. 2694. 33 L.Ed.2d 570 (1972).
Cf. Bishop v. Wood. 426 U.S. 341. 96 S.Ct. 2074, 48 L.Ed.2d 684
(1976);
Arnett v. Kennedy. 416 U.S. 134. 94 S.Ct. 1633. 40 L.Ed. 2d 15
(1974): Board
of Regents v. Roth. 408 U.& 564. 92 S.Ct. 2701. 33 L.Ed.2d
548 (1972).
17. E.g., Davis v. Passman, 442 U.S.
228. 234-35, 99 S.Ct. 2264,60
L.Ed.2d 846, 19 FEP Cases 1390 (1979); Personal Administrator v.
Feeney, 442
US. 256, 273, 99 S.Ct. 2282, 60 L.Ed.2d 870, 19 FEP Cases 1377
(1979); United
Public Workers v. Michell. 330 U.S. 75, 100. 67 S.Ct. 556, 91
L.Ed. 754
(1947).
18. Smith v. State Highway Employees
Local 1315, 441 U.S. 463, 99 S.Ct.
1826, 60 L.Ed.2d 360, 101 LRRM 2091 (1979) (by implication):
Teachers Local
18954 v. Hanover Community School Corp.. 457 F.2d 456. 460. 79
LRRM 2299 (7th
Cir. 1969)( Stevens, J.); McLaughlin v. Tilendis P.2d 287,289,71
LRRM 2097
(7th Cir. 1968).
19. Abood v. Detroit Board of Education.
431 U.S. 209. 97
S.Ct. 1782, 52 L.Ed.2d 261, 95 LRRM 2411 (1977). The same result
has been reached as a matter of statutory construction with
respect to unions in the private sector subject to federal labor
laws. International Association of Machinists v. Street. 367
U.S. 740. 81 S.Ct. 1784, 6 LEd.2d 1141, 48 LRRM 2345 (1961), and
the reasoning of Abood strongly suggests that that is a
constitutional requirement.
20. City of Madison. Joint School
District No. 8 v. Wisconsin
Employment Relations Commission. 429 U.S. 167. 97 S.Ct. 421, 50
L.Ed.2d 376,
93 LRRM 2970 (1976).
21. Givhan v. Western Line Consolidated
School District. 439 U.S. 410,
99 S.Ct. 693, 58 L.Ed.2d 619, 18 FEP Cases 1424 (1979), Mt.
Healthy City
School District Board of Education v. Doyle, 429 U.S. 274. 97
S.Ct. 568, 50
L.Ed.2d 471 (1977); Pickering v. Board of Education, 391 U.S.
563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1976).
22. Branti v. Finkel, 445 U.S. 507. 100
S.Ct. 1287, 63 LEd.2d 574
(1980): Elrod v. Bums. 427 U.S. 347, 96 S.Ct. 2673. 49 L.Ed.2d
547 (1976).
23. Keyishian v. Board of Regents, 385
U.S. 589. 605-10. 87 S.Ct. 675,
17 L.Ed.2d 629 (1967); United States v. Robel 389 U.S. 258, 88
S.Ct. 419. 19
L.Ed.2d 508 (1967).
24. Torcaso v. Watkins 367 U.S. 488, 81
S.Ct. 1680. 6 L.Ed.2d 982
(1961).
25. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).
26. E.g., United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 564-65, 93 S.Ct. 2880. 37 L.Ed.2d 796 (1973); Pickering v. Board of Education. 391 U.S. 563, 568, 569-70, 572-73 (1968).
27. Connecticut SFT avoided pawing on equal protection claims by invoking the abstention doctrine. 538 F.2d at 483.
28. As far as we can discern, the phrase
"public forum" was first used
in Professor Kalven's seminal article, The Concept of the Public Forum: Cox v.
Louisiana, 1965 Sup.Ct.Rev. 1. Loose use of the term has not
always kept
courts from applying the equal access principle correctly. See.
e.g.,
National Socialist White People's Party v. Ringers. 473 P.2d 1010
(4th Cir.
1973); Toward a Gayer Bicentennial Committee v. Rhode Island
Bicentennial
Foundation. 417 F.Supp. 632 (D.R.I. 1976); Alaska Gay Coalition
v. Sullivan
578 F.2d 951 (Alaska 1978).
29. The limitation to "private
individuals", while awkward. is
necessary. Several commentators have recently pointed out that
the Mosley
equal-access principle, in order to be workable, must be limited
by a
distinction between "unofficial speech", which should trigger the
equal-access
principle, and "legitimate official speech", which should not. A
rule permitting only Democrats to give political speeches on a
military base should be
invalid, but the equal-access principle should not extend so far
as to require
viewpoints on military tactics other than those taught in the
military
classroom to be heard. Cf. Greer v. Spock. 424 U.S. 828, 938
n.10 (1976).
See Shiffrin, 30. See, e.g.. First National Bank v.
Bellotti, 435 U.S. 765. 7@, 98
S.Ct. 1407, 55 L.Ed.2d 707 (1978) ("Especially where, as here,
the
legislature's suppression of speech suggests an attempt to give
one side of a
debatable public question an advantage in expressing its views to
the people,
the First Amendment is plainly offended.") (footnote omitted);
City of
Madison. Joint School District No. 8 v. Wisconsin Employment
Relations
Commission, 429 U.S. 167. 175-76, 97 S.Ct. 421, 50 L.Ed.2d 376,
93 LRRM 2970
(1976); Consolidated Edison Co. v. Public Service Commission, 447
U.S. 530.
544-48 (1980) (Stevens. J., concurring in the judgment).
31. See also. e.g., Brown v. Glines, 444
U.S. 348, 100 S.Ct. 594, 62
L.Ed.2d 540 (1980). See generally Stone,
32. See note 35 infra.
33. See also FCC v. Pacifica Foundation, 438 U.S. 726. 745-46, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (plurality opinion). These are, of course, questions of degree to a certain extent. Every restriction on speech implicitly favors the status quo; and "the speech suppressed by restrictions such as those involved in ... Young will almost invariably carry an implicit, if not an explicit, message in favor of more relaxed sexual mores". Stone, supra note 31, at 111-12.
34. See First National Bank v. Bellottt, 435 U.S. 765
(1978), and
Consolidated Edison Co., each of which involved restrictions on
both speaker
and subject matter. See also City of Madison, Joint School
District No. 8 v.
Wisconsin Employment Relations Commission, 429 U-S. 167, 175 n.8,
93 LRRM 2970
(1976), in which the Court struck down a non-viewpoint neutral
speaker
restriction on speech at an open school board meeting, but noted
that a
(viewpoint-neutral) subject matter restriction would be
permissible.
35. For example, the individual interest
in self-expression may require
speaker restrictions to be scrutinized rigorously in any case,
see First
National Bank of Boston v. Bellotti. 435 U.S. 765. 777 n.12
(1978).
Similarly, even viewpoint-neutral subject matter restrictions may
require
heightened scrutiny in some circumstances. Indeed, the opinions
in Carey,
Mosley, and Consolidated Edison company rejected subject matter
restrictions
as impermissible attempts to treat some kinds of
constitutionally-protected
free speech as less valuable than others; they do not even allude
to the fact
that the restrictions were also non-viewpoint-neutral. We have
chosen to emphasize their viewpoint-neutrality aspect because FCC
v. Pacifica Foundation,
438 U.S. 726 (1978), Young, Lehman and Greer arguably recognize
just such a
hierarchy of speech protection in some circumstances,
Consolidated Edison Co.
rejected such a reading of Lehman and Greer on the ground that
those cases
involved speech on government property, 447 U.S. at 539-40, and
Young,
Pacifica and Lehman each involved some degree of audience
captivity. But both
of those factors should go to justification, not to the standard
of review -
and the Court apparently did apply a weaker than normal standard
of review in
all four cases. We need not attempt to resolve this apparent
conflict here,
and so the minimal reading we give to Carey, Mosley and
Consolidated Edison
Co. in the text of this opinion should not be taken as intimating
that we
would reject their broader reading in a case involving a
viewpoint-neutral
subject matter restriction.
36. The differences between the
fundamental rights strand of equal
protection and a substantive constitutional guarantee are
debatable even
outside this context. See, e.g., Zablocki v. Redhail, 434 U.S.
374, 391-96,
98 S.Ct. 673, 54 L.Ed.2d 618 (1976) (Stewart, J., concurring in
the judgment);
Shapiro v. Thompson, 394 U.S. 818, 658-62, 89 S.Ct. 1322, 22
L.Ed.2d 600
(1969) (Harlan. J., dissenting). See generally Comment, Equal
Protection and
Due Process: Contrasting Methods of Review Under the Fourteenth
Amendment, 14
Harv. C.R.-C.L Rev. 329 (1979).
37. On important interest and least
restrictive means, see, e.g., Martin
v. City of Struthers, 319 U.S. 141. 148, 63 S.Ct. 862, 87 L.Ed.
1313 (1943);
Schneider v. State, 308 U.S. 147, 162. 60 S.Ct. 146, 84 L.Ed.
155, 5 LRRM 659
(1939). See generally Comment. 38. E.g.. Kramer v. Union Free School
District 395 U.S. 621, 627, 89
S.Ct. 1886, 23 L.Ed.2d 583 (1969). See also Shapiro v. Thompson,
394 U.S.
618, 634, 89 S.Ct. 1322, 21 L.Ed.2d 600 (1969) (same standard
applied to
residency requirement burdening the right to travel); Storer v.
Brown. 415
U.S. 724, 733, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) ("compelling
state interest" needed to restrict right to run for office).
39. E.g., Califano v. Wescott. 443
U.& 76, 85, 99 S.Ct. 2655, 61 L.Ed.2d
382 (1979); Craig v. Boren. 429 U.S. 190, 197, 97 S.Ct. 451. 50
L.Ed.2d 397
(1976).
40. See Carey v. Brown. 447 U.S. 455,
480, 461, 466, 471 (1980); First
National Bank V. Bellotti. 435 U.S. 765, 774 n.8 (1978); Young v.
American
Mini Theaters, Inc., 427 U.S. 50,67 n.27 (1976) (plurality
opinion), quoting
Kalven. supra note 28, at 29; Erznoznik v. City of Jacksonville,
422 U.S. 205,
209, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). Cf. Carey v. Brown,
447 U.S. at
471-72 (Stewart, J., concurring) (insisting that Mosley and Carey
rest only on
the first amendment, but not explaining why). See also Note.
41. An alternative ground for strict
scrutiny in this case,,might be
derived from the "suspect classification" strand of equal
protection, however,
If strict scrutiny of suspect classifications is meant to protect
those who
cannot adequately protect themselves in the political arena, see
United States
v. Carolene Products Co.. 304 U.S. 144, 152 n.4, 58 S.Ct. 778. 82
L.Ed. 1234
(1938); see generally J. Ely, 44. See FCC v. Pacifica Foundation. 438
U.S. 726 (1978) (plurality
opinion); Young v. American Mint Theatres, Inc.. 427 U.S. 50
(1976)
(plurality opinion). See notes 33. 35 supra.
45. See Consolidated Edison Co. v.
Public Service Commission. 447 U.S.
530, 541 n. 10 (1980); Linmark Associates, Inc. v. Willingboro.
431 U.S. 85,
93, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977); Virginia State Board of
Pharmacy v.
Virginia Citizens Consumer Council. 425 U.S. 748, 771, 96 S.Ct.
1817, 48
L.Ed.2d 346 (1976).
46. Cf. Southeastern Promotions, Ltd.
v. Conrad. 420 U.S. 546. 95 S.Ct.
1239, 43 L.Ed.2d 448 (1975), which granted a claim for access to
a municipal
theatre by the promoter of a controversial production. Although
Conrad rested
mainly on the city's failure to follow the procedural
requirements necessary
for a valid prior restraint, the holding also seems to imply a
substantive
right of equal access. Conrad leaves unclear the scope of the
state's power
to edit with respect to state-owned facilities that can only be
used by a
limited number of persons. Note, however, that the argument for
access in
this case is much stronger than in Conrad, because there is no
effective limit
on the number of people who can simultaneously use the mail
system; the
marginal cost of delivering additional messages is nil. See
generally Karst,
47. It Is arguable that a dues checkoff
for the majority union alone
would unconstitutionally chill the minority's right to associate
or violate
their equal protection rights. See nn. 7, 18 supra. But because
a
discriminatory checkoff would not directly interfere with speech,
it arguably
should be subject to a much less stringent standard of review.
Cf. City of
Charlotte v. Local 660, International Association of
Firefighters, 426 U.S.
283, 96 S.Ct. 2036, 48 L.Ed.2d 636, 92 LRRM 2597 (1976) (applying
rational
basis scrutiny to reject equal protection attack on city's
refusal to grant
checkoff for union while providing checkoff for certain other
programs and
organizations). Charlotte held rational the city's distinction
between
programs in which all employees could, without more, participate,
and
organizations such as a union, a checkoff for which would only
benefit union
members. Note that that distinction would not exist as between
competing
unions, unless an agency shop arrangement were in force. See
also note 41
supra, the reasoning of which suggests that
48. Not included in this order.
49. 'Employee Organization' is defined as any organization whose main purpose is to represent a group of employees in matters of employment practices and procedures. The parties stipulated that both TSTA and GEA are employee organizations within the meaning of the GISD policies. The term "school hours" means "the entire period between 8:00 a.m. and 3:45 p.m. of each school day except for days when school may be let out early."
51. Section 21.904 provides, in pertinent part: 'No school district, board of education, superintendent, assistant superintendent, principal, or other administrator benefitting by the funds provided for in this code shall directly or indirectly require or coerce any teacher to join any group, club. committee, organization, or association...." TEX.EDUC.CODE § 21.904 (Vernon 1972).
52. Because appellants did not show any refusal of access during non-school hours, no relief was given with respect to this holding.
53. TSTA attempts to distinguish Perry. TSTA argues that groups allowed access in Perry were not similar entities to PLEA because the groups granted access were "organizations that engage in activities and educational relevance to students" while PLEA was a group that was concerned with teacher issues. See Perry, 460 U.S. at 47, 103 S.Ct. at 956, 74 L.Ed.2d at 806. Thus, TSTA contends that the school district in Perry had opened its doors to groups discussing student issues, but not groups discussing teacher issues. TSTA argues that the present case is distinguishable from Perry because GISD allows access to groups concerned with solely "teacher" issues. For example, YMCA teacher swimming and bowling teams.
The facts in Perry do not support TSTA's distinction. The school district in Perry did allow access to groups concerned with solely "teacher" issues. For example, PEA, the teacher union which had bargaining representative status, was allowed access. Also, there is no indication that the communications of the Perry YMCA were substantially different from the communications of the GISD YMCA. Nevertheless, Perry held that PLEA was not a similar entity to the groups allowed access. See supra note 6 and accompanying text (TSTA) not 'similar entity' to groups allowed access). Curiously, GISD permits communications concerning other teacher groups, such as bowling without any apparent concern that it is thereby coercing teachers to join such groups. Assistant Superintendent Beavers testified as follows:
Q. Can you tell me whether the district has a policy or practice which prohibits teachers from discussing teacher employee organization matters between the hours of 8:00 and 3:45 on school days?
A. Yes, we do.
Q. Does It matter what the content of the conversation is or where on campus it occurs?
A. No it doesn't.
Q. Are two teachers --does it matter whether they are members or nonmembers of an organization?
A. No.
Q. If two teachers then are walking down the hall going to lunch and they start chatting about an upcoming TSTA seminar in Austin, is this a violation of that policy?
A. Technically it would be.
......
Q. If two teachers are sitting having lunch and they start talking about a TSTA membership drive and nobody else is within earshot and both of them are voluntarily partaking of the conversation is that a violation of your district's policies?
A. Technically it would be a violation.
Principal Hardy testified as follows:
Q. If I were a member of TSTA and I were a member of your faculty, would there ever be a circumstance under which I could discuss TSTA business with other faculty members during school hours?
A. Not during the school hours.
.....
Q. [I]n general if one wanted to [discuss TSTA business during school hours], he or she could not, could she?
A. She probably could illegally. She couldn't-
Q. If she did so, she would be violating the rules wouldn't she?
A. Yes.
Q. What rules are we talking about? Are we still talking about Administration Regulation and Policy-
A. 412.
Principal White testified as follows:
Q. Do you have a policy as to whether two or more teachers can confer regarding teacher organization matters during school hours?
A. Yes.
Q. What is the policy?
A. 412.
Q. They can't do it?
A. No.
Q. Does it matter whether they am members of an organization?
A. No.
Superintendent Douglas testified as follows:
Q. Can four non-elected members of TSTA who happen to be teachers and who happen to be taking a 10-minute coffee break in your teacher's lounge or work room -- can they legitimately next month's TSTA seminar in Austin?
A. We ask our staff members to refrain from discussing professional organizations and associations during the course of the school day.
Q. From 8:00 to 3:45?
A. 8:00 to 3:45.
Q. So it would be technical violation?
A. Yes. The "release time" program provided that "nine days of release time with full pay will be allotted to professional organizations for each 100 members who are in good standing." Testimony of Assistant Superintendent Beavers and Principal White. The "release time" program is not at issue in this case and we express no opinion regarding the Texas Attorney General's Opinion. See testimony, supra note 9. The district court referred to the following testimony in concluding that "there has never been any attempt to enforce such an interpretation of Admin.Reg. 412(5):
Q. Now on just general freedom on speech on talking about whatsoever they want to talk about, there is no attempt to monitor or keep the teachers from talking about whatever they want to talk about, is there?
A. (Principal White) None whatsoever.
Q. But you don't have any way of monitoring it to eavesdrop on people to be sure that they didn't talk about the party they went to last night?
A. (Assistant Superintendent Beavers) No, sir, we don't do that.
Q. But being responsible people you would expect them [the teachers] to keep their conversation generally along the lines of the school business?
A. Yes sir. Although acknowledging that officials do not eavesdrop on conversations, Assistant Superintendent Beavers testified as follows:
Q. Teachers are professional people?
A. Yes.
Q. And you expect they generally to follow the regulations?
A. Yes we do.
Neither appellees nor appellants distinguish access to
use the
public address system from access granted to use the mail system
or school
billboards. Obviously, schools do not generally allow teachers
to broadcast
personal messages over their loudspeakers. The use of the public
address
system has not been placed at issue in this case.
See text accompanying note 8, supra.
65. 'The Postal Service
is authorized to suspend the operation of
the
Private Express Statutes when required by the
"public interest," 39 U.S.C. §
601(b). In this case, PERB
also found that the
Postal Service's "suspension"
for letters of "bona
fide student or faculty organizations,"
39 CFR § 320.4
(1987), applied to the letters
involved here and therefore
permitted their
carriage by appellant. The California Court of
Appeal did not address this
ground and PERB has expressly declined to press
it before this Court. Brief
for Appellee PERB 16, n. 9. Accordingly, we do
not consider the applicability
of the suspension.
66. Contrary to the
suggestion in the dissent, post,
at 1417, n. 5, this
qualified statement obviously does not purport
to render the private-hands
exception automatically inapplicable whenever
a business relationship exists.
Rather, it simply indicates that a business
relationship ordinarily suggests
that the carriage is not without compensation.
Cf. 39 CFR § 310.3© (1987).
67. I agree with the
majority that the carriage of mail by the
university (governed by appellant Regents and thereafter referred
to as
appellant) would be carriage by "private hands" within the
meaning of the
statute. As Attorney General Harmon commend in an opinion on the
scope of the
postal monopoly written in 1896, the term "'private hands' was
evidently
intended to cover all except common carriers on post routes." 21
Op.Atty.Gen.
394, 401 (1896).
68. The full
text of the regulation
provided: "(c) Private hands without
compensation.
The sending or carrying of
letters is permissible if no charge for carriage
is made by the carrier.
However, a person engaged in the
transportation of goods or persons for hire
does not fall within the exception merely
by carrying letters free of
charge
for customers whom he does
charge for the carriage of goods or
persons." 69. The Higher Education
Employer-Employee Relations Act (HEERA),
Cal.Govt.Code Ann. § 3568 (West 1980),
provides: "Subject to reasonable
regulations, employee organizations shall have
the
right of access at reasonable times to areas in
which employees work, the
right to use institutional bulletin boards,
mailboxes and other means of
communication, and the right to use institutional facilities at
reasonable
times for the purpose of meetings concerned with the exercise of
the rights
guaranteed by this act." 70. Black's Law
Dictionary 625 (5th ed. 1979) (quoting In re
Witkind's
Estate, 167 Misc. 885, 895, 4
N.Y.S.2d 933, 947 (1938)).
71. The regulation
implementing the private-hands-without-compensation
exception discusses the impact of a business relationship
on the 'without
compensation' analysis: 'Compensation may also consist,
however, of non-monetary valuable
consideration and of good will). Thus, for
example, when a business
relationship exists or is sought between
the carrier and its user, carriage by
the carrier of the user's letter will
ordinarily not fall under this
exception.' 39 CFR § 310.3© (1987). Thus
the regulation recognizes that in
most instances the existence of
a business relationship will suggest
such an
exchange of value for any services performed by
one party for another that the
private hands without compensation exception
will not apply. The use of the
word "ordinarily," however, makes clear that the
regulation anticipates that
there will be occasions when carriage of mail
will be "without compensation"
even if there is a business relationship between
the carrier and the user.
The position taken by the Postal Service and the
majority of this Court in
this case, however, admits of no such
possibility. In their view, once a
business relationship is established, the
applicability of the exception is
foreclosed. Ibis view is contrary to the plain
language of the exception, to
previous applications of the exception, and to
the regulation.
72. The drafters of 39
CFR § 310.3(c) (1987) no doubt had
Thompson in
mind when they specified in the regulation
that "a person engaged in the
transportation of goods or persons for
hire does not fall
within the exception
merely by carrying letters free of
charge for customers
whom he does charge
for the carriage of goods
or persons."
73. The opinions of
the Attorney General and Postal Service
relied on by
appellant do not support its assertion that the
private-hands exception has
consistently been interpreted as not authorizing
the delivery of mail if a
business relationship exists between the carrier
and the sender or the
recipient. In 1896 the Attorney
General was asked whether it was "proper for
a railroad company to carry, outside of the
mails, not in Government
stamped
envelopes, first-class mail matter intended for
a connecting line." 21
Op.Atty.Gen., at 397. In explaining
that such conduct would violate the
Private Express Statutes, the Attorney General opined
that the "express or
implied obligation" between railroad lines to
carry mail for each other was
compensation within the meaning of the private-hands
exception. Id, at 401.
The Attorney General did not express the view
that compensation was implicit
in the business relationship between the
railroad lines but rather found that
the exchange of reciprocal obligations
was compensation. In Advisory Opinions PES
76-4 (Mar. 3, 1976) and 76-4
Reconsidered (Jan.
15, 1982), the Postal Service expressed the view
that the delivery of mail by
the Salem Oregon School District on behalf of
the collective-bargaining agent
of its employees would not come within
the private-hands-without-compensation
exception. The School District was providing the service
because it had
agreed to do so in a collective-bargaining agreement. Since the
agreement to
perform the service had been reached as part of
a bargaining process, it was
clear that the District had received something
of value in exchange for its
agreement to provide the service. The
controlling element of the
Postal
Service's opinion was not the overall business
relationship between the Union
and the School District but the
fact that the provision of the service was a
negotiated element of a collective-bargaining
agreement. There is no suggestion in the
instant case that appellant will receive a
quid pro quo if it undertakes the
delivery of the Union's mail or that it will
be able to acquire some benefit for the service
through bargaining. The
reality here is that appellant will get exactly
nothing for its delivery of
the Union's mail save the satisfaction of
finding itself in compliance with a
compulsion under state law.
74. The only time the
private-hands-without-compensation exception is
referenced in the legislative history of the Private Express
Statutes is in a
descriptive comment in a House Report on the 1845 Act: "Penalties
are provided
... with exceptions in favor of the party ... who conveys the
letter out of
neighborly kindness, without fee or reward." H.R.Rep. No. 477,
28th Cong.,
1st Sess., 4 (1844).
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