Perry Educ. Ass'n v. Perry Educators' Ass'nAnnotate this Case
460 U.S. 37 (1983)
U.S. Supreme Court
Perry Educ. Ass'n v. Perry Educators' Ass'n, 460 U.S. 37 (1983)
Perry Education Association v. Perry Local Educators' Association
Argued October 13, 1982
Decided February 23, 1983
460 U.S. 37
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
Under a collective bargaining agreement between the Board of Education of Perry Township, Ind., and Perry Education Association (PEA) as the exclusive bargaining representative for the School District's teachers, PEA was granted access to the interschool mail system and teacher mailboxes in the Perry Township schools. The bargaining agreement also provided that access rights to the mail facilities were not available to any rival union, such as Perry Local Educators' Association (PLEA). PLEA and two of its members filed suit in Federal District Court against PEA and individual members of the School Board, contending that PEA's preferential access to the internal mail system violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The court entered summary judgment for the defendants, but the Court of Appeals reversed.
1. The appeal is not proper under 28 U.S.C. § 1254(2), which grants this Court appellate jurisdiction over federal court of appeals' decisions holding a state statute repugnant to the Federal Constitution. Here, only certain provisions of the collective bargaining agreement, not the Indiana statute authorizing such agreements, were held to be constitutionally invalid, and the bargaining agreement cannot be considered to be in essence a legislative act. However, regarding the jurisdictional statement as a petition for a writ of certiorari, certiorari is granted because the constitutional issues presented are important and the decision below conflicts with the judgments of other federal and state courts. Pp. 460 U. S. 42-44.
2. The First Amendment is not violated by the preferential access to the interschool mail system granted to PEA. Pp. 460 U. S. 44-54.
(a) With respect to public property that is not, by tradition or government designation, a forum for public communication, a State may reserve the use of the property for its intended purposes, communicative or otherwise, as long as a regulation on speech is reasonable, and not an effort to suppress expression merely because public officials oppose the speaker's view. The school mail facilities were not a "limited public forum" merely because the system had been opened for periodic use by
civic and church organizations, or because PLEA was allowed to use the school mail facilities on an equal footing with PEA prior to PEA's certification as the teachers' exclusive bargaining representative. Pp. 460 U. S. 45-49.
(b) The differential access provided PEA and PLEA is reasonable, because it is wholly consistent with the School District's legitimate interest in preserving the property for the use to which it was lawfully dedicated. Use of school mail facilities enables PEA to perform effectively its statutory obligations as exclusive representative of all Perry Township teachers. Conversely, PLEA does not have any official responsibility in connection with the School District, and need not be entitled to the same rights of access to school mailboxes. The reasonableness of the limitations on PLEA's access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place. Moreover, under Indiana law, PLEA is assured of equal access to all modes of communication while a representation election is in progress. Pp. 460 U. S. 50-54.
3. The differential access provided the rival unions does not constitute impermissible content discrimination in violation of the Equal Protection Clause. Since the grant of exclusive access to PEA does not burden a fundamental right of PLEA, the School District's policy need only rationally further a legitimate state purpose. That purpose is clearly found in the special responsibilities of an exclusive bargaining representative. Police Department of Chicago v. Mosley,408 U. S. 92, and Carey v. Brown,447 U. S. 455, distinguished. Pp. 460 U. S. 54-55.
Appeal dismissed and certiorari granted; 652 F.2d 1286, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J. and BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, POWELL, and STEVENS, JJ., joined, post, p. 460 U. S. 55.
JUSTICE WHITE delivered the opinion of the Court.
Perry Education Association is the duly elected exclusive bargaining representative for the teachers of the Metropolitan
School District of Perry Township, Ind. A collective bargaining agreement with the Board of Education provided that Perry Education Association, but no other union, would have access to the interschool mail system and teacher mailboxes in the Perry Township schools. The issue in this case is whether the denial of similar access to the Perry Local Educators' Association, a rival teacher group, violates the First and Fourteenth Amendments.
The Metropolitan School District of Perry Township, Ind., operates a public school system of 13 separate schools. Each school building contains a set of mailboxes for the teachers. Interschool delivery by school employees permits messages to be delivered rapidly to teachers in the District. [Footnote 1] The primary function of this internal mail system is to transmit official messages among the teachers and between the teachers and the school administration. In addition, teachers use the system to send personal messages, and individual school building principals have allowed delivery of messages from various private organizations. [Footnote 2]
Prior to 1977, both the Perry Education Association (PEA) and the Perry Local Educators' Association (PLEA) represented teachers in the School District, and apparently had equal access to the interschool mail system. In 1977, PLEA
challenged PEA's status as de facto bargaining representative for the Perry Township teachers by filing an election petition with the Indiana Education Employment Relations Board (Board). PEA won the election and was certified as the exclusive representative, as provided by Indiana law. Ind.Code § 20-7.5-1-2(1) (1982).
The Board permits a school district to provide access to communication facilities to the union selected for the discharge of the exclusive representative duties of representing the bargaining unit and its individual members without having to provide equal access to rival unions. [Footnote 3] Following the election, PEA and the School District negotiated a labor contract in which the School Board gave PEA "access to teachers' mailboxes in which to insert material" and the right to use the interschool mail delivery system to the extent that the School District incurred no extra expense by such use. The labor agreement noted that these access rights were being accorded to PEA "acting as the representative of the teachers," and went on to stipulate that these access rights shall not be granted 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 school employer. [Footnote 4]"
The PEA contract with these provisions was renewed in 1980, and is presently in force.
The exclusive-access policy applies only to use of the mailboxes and school mail system. PLEA is not prevented from using other school facilities to communicate with teachers. PLEA may post notices on school bulletin boards; may hold meetings on school property after school hours; and may, with approval of the building principals, make announcements on the public address system. Of course, PLEA also may communicate with teachers by word of mouth, telephone, or the United States mail. Moreover, under Indiana law, the preferential access of the bargaining agent may continue only while its status as exclusive representative is insulated from challenge. Ind.Code § 20-7.5-1-10(c)(4) (1982). While a representation contest is in progress, unions must be afforded equal access to such communication facilities.
PLEA and two of its members filed this action under 42 U.S.C. § 1983 against PEA and individual members of the Perry Township School Board. Plaintiffs contended that PEA's preferential access to the internal mail system violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. They sought injunctive and declaratory relief and damages. Upon cross-motions for summary judgment, the District Court entered judgment for the defendants. Perry Local Educators' Assn. v. Hohlt, IP 79-189-C (SD Ind., Feb. 25, 1980).
The Court of Appeals for the Seventh Circuit reversed. Perry Local Educators' Assn. v. Hohlt, 652 F.2d 1286 (1981). The court held that, once the School District "opens its internal mail system to PEA but denies it to PLEA, it violates both the Equal Protection Clause and the First Amendment." Id. at 1290. It acknowledged that PEA had "legal duties to the teachers that PLEA does not have," but reasoned
"[w]ithout 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."
Id. at 1300.
PEA now seeks review of this judgment by way of appeal. We postponed consideration of our jurisdiction to the hearing of the case on the merits. 454 U.S. 1140 (1982).
We initially address the issue of our appellate jurisdiction over this case. PEA submits that its appeal is proper under 28 U.S.C. § 1254(2), which grants us appellate jurisdiction over cases in the federal courts of appeals in which a state statute has been held repugnant to the Constitution, treaties, or laws of the United States. We disagree. No state statute or other legislative action has been invalidated by the Court of Appeals. The Court of Appeals has held only that certain sections of the collective bargaining agreement entered into by the School District and PEA are constitutionally invalid; the Indiana statute authorizing such agreements is left untouched.
PEA suggests, however, that, because a collective bargaining contract has "continuing force and [is] intended to be observed and applied in the future," it is in essence a legislative act, and, therefore a state statute within the meaning of § 1254(2). King Manufacturing Co. v. City Council of Augusta,277 U. S. 100, 277 U. S. 104 (1928). In support of its position, PEA points to our decisions treating local ordinances and school board orders as state statutes for § 1254(2) purposes, Doran v. Salem Inn, Inc.,422 U. S. 922, 422 U. S. 927, n. 2 (1975); Illinois ex rel. McCollum v. Board of Education,333 U. S. 203 (1948); Hamilton v. Regents of Univ. of Cal.,293 U. S. 245, 293 U. S. 257-258 (1934). In these cases, however, legislative action was involved -- the unilateral promulgation of a rule with continuing legal effect. Unlike a local ordinance or even a school board rule, a collective bargaining agreement is not
unilaterally adopted by a lawmaking body; it emerges from negotiation and requires the approval of both parties to the agreement. Not every government action which has the effect of law is legislative action. We have previously emphasized that statutes authorizing appeals are to be strictly construed, Fornaris v. Ridge Tool Co.,400 U. S. 41, 400 U. S. 42, n. 1 (1970), and in light of that policy, we do not find that § 1254(2) extends to cover this case. [Footnote 5] We therefore dismiss the appeal for want of jurisdiction. See, e.g., Lockwood v. Jefferson Area Teachers Assn., 459 U.S. 804 (1982) (appeal dismissed for want of jurisdiction and certiorari denied).
Nevertheless, the decision below is subject to our review by writ of certiorari. 28 U.S.C. § 2103; Palmore v. United States,411 U. S. 389, 411 U. S. 396 (1973). The constitutional issues presented are important, and the decision below conflicts with the judgment of other federal and state courts. [Footnote 6] Therefore,
regarding PEA's jurisdictional statement as a petition for a writ of certiorari, we grant certiorari.
The primary question presented is whether the First Amendment, applicable to the States by virtue of the Fourteenth Amendment, is violated when a union that has been elected by public school teachers as their exclusive bargaining representative is granted access to certain means of communication, while such access is denied to a rival union. There is no question that constitutional interests are implicated by denying PLEA use of the interschool mail system.
"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
Tinker v. Des Moines School District,393 U. S. 503, 393 U. S. 506 (1969); Healy v. James,408 U. S. 169 (1972). The First Amendment's guarantee of free speech applies to teacher's mailboxes as surely as it does elsewhere within the school, Tinker v. Des Moines School District, supra, and on sidewalks outside, Police Department of Chicago v. Mosley,408 U. S. 92 (1972). But this is not to say that the First Amendment requires equivalent access to all parts of a school building in which some form of communicative activity occurs.
"[N]owhere [have we] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for . . . unlimited expressive purposes."
Grayned v. City of Rockford,408 U. S. 104, 408 U. S. 117-118 (1972). 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 on the character of the property at issue.
In places which, by long tradition or by government fiat, have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks, which
"have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."
Hague v. CIO,307 U. S. 496, 307 U. S. 515 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion, it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown,447 U. S. 455, 447 U. S. 461 (1980). The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. United States Postal Service v. Council of Greenburgh Civic Assns.,453 U. S. 114, 453 U. S. 132 (1981); Consolidated Edison Co. v. Public Service Comm'n,447 U. S. 530, 447 U. S. 535-536 (1980); Grayned v. City of Rockford, supra, at 408 U. S. 115; Cantwell v. Connecticut,310 U. S. 296 (1940); Schneider v. State,308 U. S. 147 (1939).
A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Widmar v. Vincent,454 U. S. 263 (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Employment Relations Comm'n,429 U. S. 167 (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad,420 U. S. 546 (1975) (municipal theater). [Footnote 7]
Although a State is not required to indefinitely retain the open character of the facility, as long as it does so, it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Widmar v. Vincent, supra, at 454 U. S. 269-270.
Public property which is not, by tradition or designation, a forum for public communication is governed by different standards. We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Assns., supra, at 453 U. S. 129. In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. 453 U.S. at 453 U. S. 131, n. 7. As we have stated on several occasions, ""[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated."'" Id. at 453 U. S. 129-130, quoting Greer v. Spock,424 U. S. 828, 424 U. S. 836 (1976), in turn quoting Adderley v. Florida,385 U. S. 39, 385 U. S. 47 (1966).
The school mail facilities at issue here fall within this third category. The Court of Appeals recognized that Perry School District's interschool mail system is not a traditional public forum:
"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."
652 F.2d at 1301. On this point the parties agree. [Footnote 8] Nor do the parties dispute that, as the District Court observed, the
"normal and intended function [of the school mail facilities] is to facilitate internal communication of school-related matters to the teachers." Perry Local Educators' Assn. v. Hohlt, IP 79-189-C (SD Ind., Feb. 25, 1980), P. 4. The internal mail system, at least by policy, is not held open to the general public. It is, instead, PLEA's position that the school mail facilities have become a "limited public forum" from which it may not be excluded because of the periodic use of the system by private non-school-connected groups, and PLEA's own unrestricted access to the system prior to PEA's certification as exclusive representative.
Neither of these arguments is persuasive. The use of the internal school mail by groups not affiliated with the schools is no doubt a relevant consideration. If, by policy or by practice, the Perry School District has opened its mail system for indiscriminate use by the general public, then PLEA could justifiably argue a public forum has been created. This, however, is not the case. As the case comes before us, there is no indication in the record that the school mailboxes and interschool delivery system are open for use by the general public. Permission to use the system to communicate with teachers must be secured from the individual building principal. There is no court finding or evidence in the record which demonstrates that this permission has been granted as a matter of course to all who seek to distribute material. We can only conclude that the schools do allow some outside organizations such as the YMCA, Cub Scouts, and other civic and church organizations to use the facilities. This type of selective access does not transform government property into a public forum. In Greer v. Spock, supra, at 424 U. S. 838, n. 10, the fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not convert the military base into a public forum. And in Lehman v. City of Shaker Heights,418 U. S. 298 (1974) (opinion of BLACKMUN, J.), a plurality of the Court concluded that a city transit system's rental of space in its vehicles for commercial advertising did not require it to accept partisan political advertising.
Moreover, even if we assume that, by granting access to the Cub Scouts, YMCA's, and parochial schools, the School District has created a "limited" public forum, the constitutional right of access would, in any event, extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys' club, and other organizations that engage in activities of interest and educational relevance to students, they would not, as a consequence, be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment.
PLEA also points to its ability to use the school mailboxes and delivery system on an equal footing with PEA prior to the collective bargaining agreement signed in 1978. Its argument appears to be that the access policy in effect at that time converted the school mail facilities into a limited public forum generally open for use by employee organizations, and that once this occurred, exclusions of employee organizations thereafter must be judged by the constitutional standard applicable to public forums. The fallacy in the argument is that it is not the forum, but PLEA itself, which has changed. Prior to 1977, there was no exclusive representative for the Perry School District teachers. PEA and PLEA each represented its own members. Therefore the School District's policy of allowing both organizations to use the school mail facilities simply reflected the fact that both unions represented the teachers and had legitimate reasons for use of the system. PLEA's previous access was consistent with the School District's preservation of the facilities for school-related business, and did not constitute creation of a public forum in any broader sense.
Because the school mail system is not a public forum, the School District had no "constitutional obligation per se to let any organization use the school mail boxes." Connecticut State Federation of Teachers v. Board of Ed. Members, 538 F.2d 471, 481 (CA2 1976). In the Court of Appeals' view, however, the access policy adopted by the Perry schools favors
a particular viewpoint, that of PEA, on labor relations, and consequently must be strictly scrutinized regardless of whether a public forum is involved. There is, however, no indication that the School Board intended to discourage one viewpoint and advance another. We believe it is more accurate to characterize the access policy as based on the status of the respective unions, rather than their views. Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum, but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves. [Footnote 9]
The differential access provided PEA and PLEA is reasonable, because it is wholly consistent with the District's legitimate interest in ""preserv[ing] the property . . . for the use
to which it is lawfully dedicated."'" United States Postal Service, 453 U.S. at 453 U. S. 129-130. Use of school mail facilities enables PEA to perform effectively its obligations as exclusive representative of all Perry Township teachers. [Footnote 10] Conversely, PLEA does not have any official responsibility in connection with the School District, and need not be entitled to the same rights of access to school mailboxes. We observe that providing exclusive access to recognized bargaining representatives is a permissible labor practice in the public sector. [Footnote 11] We have previously noted that the
of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones."
Abood v. Detroit Bd. of Ed.,431 U. S. 209, 431 U. S. 221 (1977). Moreover, exclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools. The policy "serves to prevent the District's schools from becoming a battlefield for inter-union squabbles." [Footnote 12]
The Court of Appeals accorded little or no weight to PEA's special responsibilities. In its view, these responsibilities, while justifying PEA's access, did not justify denying equal access to PLEA. The Court of Appeals would have been
correct if a public forum were involved here. But the internal mail system is not a public forum. As we have already stressed, when government property is not dedicated to open communication, the government may -- without further justification -- restrict use to those who participate in the forum's official business. [Footnote 13]
Finally, the reasonableness of the limitations on PLEA's access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place. These means range from bulletin boards to meeting facilities to the United States mail. During election periods, PLEA is assured of equal access to all modes of communication. There is no showing here that PLEA's ability to communicate with teachers is seriously impinged by the restricted access to the internal mail system. The variety and type of alternative modes of access present here compare favorably with those in other nonpublic
forum cases where we have upheld restrictions on access. See, e.g., Greer v. Spock, 424 U.S. at 424 U. S. 839 (servicemen free to attend political rallies off base); Pell v. Procunier,417 U. S. 817, 417 U. S. 827-828 (1974) (prison inmates may communicate with media by mail and through visitors).
The Court of Appeals also held that the differential access provided the rival unions constituted impermissible content discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. We have rejected this contention when cast as a First Amendment argument, and it fares no better in equal protection garb. As we have explained above, PLEA did not have a First Amendment or other right of access to the interschool mail system. The grant of such access to PEA, therefore, does not burden a fundamental right of PLEA. Thus, the decision to grant such privileges to PEA need not be tested by the strict scrutiny applied when government action impinges upon a fundamental right protected by the Constitution. See San Antonio Independent School District v. Rodriguez,411 U. S. 1, 411 U. S. 17 (1973). The School District's policy need only rationally further a legitimate state purpose. That purpose is clearly found in the special responsibilities of an exclusive bargaining representative. See supra at 460 U. S. 51-52.
The Seventh Circuit and PLEA rely on Police Department of Chicago v. Mosley,408 U. S. 92 (1972), and Carey v. Brown,447 U. S. 455 (1980). In Mosley and Carey, we struck down prohibitions on peaceful picketing in a public forum. In Mosley, the city of Chicago permitted peaceful picketing on the subject of a school's labor-management dispute, but prohibited other picketing in the immediate vicinity of the school. In Carey, the challenged state statute barred all picketing of residences and dwellings except the peaceful picketing of a place of employment involved in a labor dispute. In both cases, we found the distinction between classes of speech violative of the Equal Protection Clause.
The key to those decisions, however, was the presence of a public forum. [Footnote 14] In a public forum, by definition, all parties have a constitutional right of access, and the State must demonstrate compelling reasons for restricting access to a single class of speakers, a single viewpoint, or a single subject.
When speakers and subjects are similarly situated, the State may not pick and choose. Conversely on government property that has not been made a public forum, not all speech is equally situated, and the State may draw distinctions which relate to the special purpose for which the property is used. As we have explained above, for a school mail facility, the difference in status between the exclusive bargaining representative and its rival is such a distinction.
The Court of Appeals invalidated the limited privileges PEA negotiated as the bargaining voice of the Perry Township teachers by misapplying our cases that have dealt with the rights of free expression on streets, parks, and other fora generally open for assembly and debate. Virtually every other court to consider this type of exclusive access policy has upheld it as constitutional, seen 6, supra, and today, so do we. The judgment of the Court of Appeals is
The United States Postal Service, in a submission as amicus curiae, suggests that the interschool delivery of material to teachers at various schools in the District violates the Private Express statutes, 18 U.S.C. §§ 1693-1699 and 39 U.S.C. §§ 601-606, which generally prohibit the carriage of letters over postal routes without payment of postage. We agree with the Postal Service that this question does not directly bear on the issues before the Court in this case. Accordingly, we express no opinion on whether the mail delivery practices involved here comply with the Private Express statutes or other Postal Service regulations.
Local parochial schools, church groups, YMCA's, and Cub Scout units have used the system. The record does not indicate whether any requests for use have been denied, nor does it reveal whether permission must separately be sought for every message that a group wishes delivered to the teachers.
See Perry Local Educators' Assn. v. Hohlt, 652 F.2d 1286, 1291, and n. 13 (CA7 1981). It is an unfair labor practice under state law for a school employer to "dominate, interfere or assist in the formation or administration of any school employee organization or contribute financial or other support to it." Ind.Code § 20-7.5-1-7(a)(2) (1982). The Indiana Education Employment Relations Board has held that a school employer may exclude a minority union from organizational activities which take place on school property, and may deny the rival union "nearly all organizational conveniences." Pike Independent Professional Educators v. Metropolitan School Dist. of Pike Township, No. U-76-16-5350 (Oct. 22, 1976) (holding that denying rival union use of a school building for meetings was not unfair labor practice, but that denying union use of school bulletin boards was unfair labor practice).
Ind.Code § 20-7.5-1-2(k) (1982).
PEA's reliance upon Abood v. Detroit Bd. of Ed.,431 U. S. 209 (1977), is misplaced. In Abood, appellate jurisdiction under 28 U.S.C. § 1257(2) was proper because the constitutionality of the state statute authorizing the negotiation of agency shop agreements was at issue. See Juris.Statement in Abood v. Detroit Bd. of Ed., O.T. 1976, No. 75-1153, p. 5.
Constitutional objections to similar access policies have been rejected by all but one other federal or state court to consider the issue. See Connecticut State Federation of Teachers v. Board of Ed. Members, 538 F.2d 471 (CA2 1976); Memphis American Federation of Teachers Local 2032 v. Board of Ed., 534 F.2d 699 (CA6 1976); Teachers Local 3724 v. North St. Francois County School District, 103 LRRM 2865 (ED Mo.1979); Haukedahl v. School District No. 108, No. 75-C-3641 (ND Ill., May 14, 1976); Federation of Delaware Teachers v. De La Warr Board of Ed., 335 F.Supp. 385 (Del.1971); Local 858 American Federation of Teachers v. School District No. 1, 314 F.Supp. 1069 (Colo.1970); Maryvale Educators Assn. v. Newman, 70 App.Div.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 (Fla.App.1978); Clark Classroom Teachers Assn. v. Clark County School District, 91 Nev. 143, 532 P.2d 1032 (1975) (per curiam). The only case holding unconstitutional a school district's refusal to grant a minority union access to teacher's mailboxes or other facilities while granting such privileges to a majority union is Teachers Local 399 v. Michigan City Area Schools, No. 72-S-94 (ND Ind., Jan. 24, 1973), vacated on other grounds, 499 F.2d 115 (CA7 1974).
A public forum may be created for a limited purpose such as use by certain groups, e.g., Widmar v. Vincent (student groups), or for the discussion of certain subjects, e.g., City of Madison Joint School District v. Wisconsin Public Employment Relations Comm'n (school board business).
See Brief for Appellees 9 and Tr. of Oral Arg. 41.
JUSTICE BRENNAN minimizes the importance of public forum analysis and all but rejects Greer v. Spock,424 U. S. 828 (1976); Lehman v. City of Shaker Heights,418 U. S. 298 (1974); and Jones v. North Carolina Prisoners' Union,433 U. S. 119 (1977), in each of which, of course, he was in dissent. It will not do, however, to put aside the Court's decisions holding that not all public property is a public forum, or to dismiss Greer, Lehman, and Jones as decisions of limited scope involving "unusual forums." In United States Postal Service v. Council of Greenburgh Civic Assns.,453 U. S. 114, 453 U. S. 129 (1981), the Court rejected this argument, stating that
"[i]t is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer . . . , the jail or prison in Adderley v. Florida,385 U. S. 39 (1966), and Jones . . . , or the advertising space made available in city rapid transit cars in Lehman."
The Court went on to say that the mere fact that an instrumentality is used for the communication of ideas does not make a public forum, and to reaffirm JUSTICE BLACKMUN's observation in Lehman:
"'Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.'"
JUSTICE BRENNAN also insists that the Perry access policy is a forbidden exercise of viewpoint discrimination. As noted in text, we disagree with this conclusion. The access policy applies not only to PLEA, but also to all unions other than the recognized bargaining representative, and there is no indication in the record that the policy was motivated by a desire to suppress PLEA's views. Moreover, under JUSTICE BRENNAN's analysis, if PLEA and PEA were given access to the mailboxes, it would be equally imperative that any other citizen's group or community organization with a message for school personnel -- the Chamber of Commerce, right-to-work groups, or any other labor union -- also be permitted access to the mail system. JUSTICE BRENNAN's attempt to build a public forum with his own hands is untenable; it would invite schools to close their mail systems to all but school personnel. Although his viewpoint-discrimination thesis might indicate otherwise, JUSTICE BRENNAN apparently would not forbid the School District to close the mail system to all outsiders for the purpose of discussing labor matters while permitting such discussion by administrators and teachers. We agree that the mail service could be restricted to those with teaching and operational responsibility in the schools. But, by the same token -- and upon the same principle -- the system was properly opened to PEA, when it, pursuant to law, was designated the collective bargaining agent for all teachers in the Perry schools. PEA thereby assumed an official position in the operational structure of the District's schools, and obtained a status that carried with it rights and obligations that no other labor organization could share. Excluding PLEA from the use of the mail service is therefore not viewpoint discrimination barred by the First Amendment.
Accordingly, the cases relied upon by JUSTICE BRENNAN are fully consistent with our approach to and resolution of this case. Niemotko v. Maryland,340 U. S. 268 (1951); Police Department of Chicago v. Mosley,408 U. S. 92 (1972); City of Madison Joint School Dist. v. Wisconsin Employment Relations Comm'n,429 U. S. 167 (1976); Carey v. Brown,447 U. S. 455 (1980); and Widmar v. Vincent,454 U. S. 263 (1981), are cases involving restricted access to public forums. Tinker v. Des Moines School District,393 U. S. 503 (1969), did not involve the validity of an unequal access policy, but instead involved an unequivocal attempt to prevent students from expressing their viewpoint on a political issue. First National Bank of Boston v. Bellotti,435 U. S. 765 (1978), and Consolidated Edison Co. v. Public Service Comm'n,447 U. S. 530 (1980), do not concern access to government property and are, for that reason, inapposite. Indeed, in Consolidated Edison, which concerned a utility's right to use its own billing envelopes for speech purposes, the Court expressly distinguished our public forum cases, stating that "the special interests of a government in overseeing the use of its property" were not implicated. Id. at 447 U. S. 539-540.
The Court of Appeals refused to consider PEA's access justified as "official business" because the School District did not "endorse" the content of its communications. We do not see the necessity of such a requirement. PEA has official duties as representative of Perry Township teachers. In its role of communicating information to teachers concerning, for example, the collective bargaining agreement and the outcome of grievance procedures, PEA neither seeks nor requires the endorsement of school administrators. The very concept of the labor-management relationship requires that the representative union be free to express its independent view on matters within the scope of its representational duties. The lack of an employer endorsement does not mean that the communications do not pertain to the "official business" of the organization.
See, e.g., Broward County School Board, 6 FPER