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Huberman, Stewart trying (as did their predecessors) to violate First Amendment rights of Chicago teachers... Substance case decided 30 years ago still upholds Chicago teachers' First Amendment rights.... Complete text of 1980 Substance case winning First Amendment rights for Chicago teachers

George N. Schmidt - December 19, 2009

In the wake of a joint opinion by Chicago Public Schools Chief Executive Officer Ron Huberman and Chicago Teachers Union President Marilyn Stewart that Chicago teachers do not have the right to distribute literature in the schools where they work prior to the official certification of caucuses for the May 2010 CTU election, a lawsuit decided in the federal courts 30 years ago on behalf of Substance (and the then-parent organization of Substance, Substitutes United for Better Schools — S.U.B.S.) becomes relevant once again. This time, even more clearly than when the original case was decided to uphold the First Amendment rights of Chicago teachers, the Chicago Teachers Union leadership has clearly joined the Chicago Board of Education in an attempt to suppress teacher rights.

As students of the the Bill of Rights and the First Amendment have long noted, the rights outlined in it have to be won anew with each succeeding generation. Thirty years ago, the sale of Substance was banned in the Chicago pubic schools and teachers who attempted to sell Substance were threatened with disciplinary action and in some cases arrested.

Today, in 2009 - 2010, the Board of Education is once again trying to suppress the rights of teachers and others who work in the schools from sharing information and taking advantage of their other rights under the First Amendment. In 1979 and 1980, the Board of Education was headed by Catherine Rohter, and the General Superintendent of Schools was Joseph Hannon (until the end of 1979) and (interim) Angeline Caruso (in 1980). Substance was a newspaper in 1979 and 1980 and is still a newspaper today, although in 1980 Substance was published by an organization of substitute teachers and in 2009 - 2010 it is published by a corporation, Substance, Inc.

Some fact of history that led to an important legal decision

As Chicago Teachers Union President Marilyn Stewart has assumed more dictatorial powers over the union's House of Delegates and membership since she delivered the 2007 - 2012 contract that Mayor Daley wanted to the city in August and September 2007, she has also tried to violate every First Amendment right of her own union's members. Or she has allied herself with the boss, Chief Executive Officer Ron Huberman, to do so. In addition to unilaterally joining with the Board of Education in a "merit pay" plan (above, Stewart at the Merit Pay media event in December 2008 with Arne Duncan and Mayor Daley), Stewart has gone along with the elimination of tenure through the "Fresh Start" program (which has so far results in the Board of Education's firing of three tenured teachers from Wells High School) and most recently — December 2009 — joined with CEO Ron Huberman in attempting to restrict the First Amendment rights of press, assembly and petition for Chicago Teachers Union members. Substance photo by George N. Schmidt.During the late 1970s, shortly after S.U.B.S. was organized and Substance began publication, various administrators in Chicago's public schools tried to ban the sale of distribution of Substance within the schools, even when we were working at those schools and simply asking fellow teachers to buy Substance during lunch or in teacher lounges and workrooms during our preparation periods. The attempt to censor and suppress Substance went so far that the Board of Education had substitute teachers arrested for selling Substance after we refused to stop the sales upon being ordered to do so by principals.

An attempt to reason with both the principals and high authorities (district superintendents and the General Superintendent of Schools) failed, and we were forced to sue the Board in federal court, since our rights under the First Amendment of the U.S. Constitution were being violated. The Board claimed that a Board Rule (6-18) allowed the General Superintendent of Schools to forbid the sale of distribution of literature by teachers in the schools unless the sale had been approved by the superintendent. The Board Rule was changed to continue to require what the Constitution refers to as "prior restraint," but now there are several others who have to approve it.

What follows is the decision by U.S. District Judge Decker as reported in the federal district court reports. Although the case ordered CPS to change the Board Rule it had invoked, CPS modified the Rule but left in place the requirement that the school system approve such communications, something the court had explicitly rejected as an attempt to censor content. An earlier case involving the rights of students (who had published an underground newspaper called the "Cosmic Frog" at Lane Technical High School) had also resulted in an order that the Board change the Board Rule. In both cases, the Board continued to carry the rule on its books, but failed to enforce it whenever students or teachers exercised their rights under the First Amendment to the U.S. Constitution.

The first part of the report below is the old summary of the case law decided in Judge Decker's written opinion and order. That is followed by the "Memorandum Opinion and Order" the judge published. This is what you would have found in the old Fed Supp law reports is you had gone back to those print treasurers and read it there:

SUBSTITUTES UNITED FOR BETTER SCHOOLS v. ROHTER

Cite as 496 F. Supp. 1017 (1980)

SUBSTITUTES UNITED FOR BETTER SCHOOLS, etc., et al., Plaintiffs

v.

Catherine ROHTER etc. et al., Defendants

No. 80 C 501

United States District Court, N.D. Illinois, E.D.

May 13, 1980

In action by teachers challenging claimed interference with distribution within the schools in which they worked of newspaper published by teachers' organization, defendants moved to strike and dismiss the complaint and challenged proposed class. The District Court, Decker, J., held that:

(1) requirement of exhaustion of administration remedies would not be imposed;

(2) plaintiffs had standing to maintain the action;

(3) action was not moot;

(4) right of teachers to sell their organization's newspaper in school in which they worked did not turn on whether public school is a "public forum" for First Amendment purposes; and

(5) while there might be activities that might be legitimately prohibited by board of education's regulation concerning distribution of circulars, it could not constitutionally be applied to activities of teachers, who for no commercial purpose and in a nondisruptive manner, sold within the schools in which they worked a newspaper disseminating the views of an organization to which they belonged; but

(6) proposed class was too broad.

Motion to strike and dismiss complaint denied; motion to deny leave to proceed as class action granted.

1. Civil Rights. 13.9. Requirement of exhaustion of administrative remedies would not be imposed in action by teachers challenging claimed interference with distribution within schools of newspaper published by teachers' organization, where it was claimed that First Amendment rights were imminently threatened and it was unlikely that pursuit of union grievance procedure would yield a different response from the one school board had already given to plaintiffs. U.S. C.A. Const. Amend. 1; 42 U.S.C.A. paragraph 1983.

2. Federal Civil Procedure. Teachers had standing to challenge alleged practice of prohibiting circulation in schools of materials published by teachers' organization, whether or not practice was in conformity with defendants' own regulations, and had standing to challenge practice of refusing to allow them to charge for the newspaper.

3. Action. Action by teachers challenging claimed interference with distribution of within schools of newspaper published by teachers' organization was not moot on ground that defendants had apparently conceded that plaintiffs had right to distribute their newspaper, where defendants were still taking position that plaintiffs could not charge for it.

4. Constitutional Law. 90.1 (8). Right of teachers to sell their organization's newspaper within school in which they worked did not turn on whether school was "public forum" for First Amendment purposes. U.S.C.A. Const. Amend. 1.

5. Constitutional Law 90.1 (8). Where teachers were seeking to distribute in school newspaper published by their organization and were not attempting to sell anything other than information itself, prohibiting sale of newspaper could not be upheld as merely regulation of commercial activity; both requesting people to take a copy of newspaper and requesting them to buy a copy were protected First Amendment activities. U.S.C.A. Const. Amend. 1.

6. Constitutional Law 90.1 (8). While there might be activities that might be legitimately prohibited by board of education's regulation concerning distribution of circulars, it could not constitutionally be applied to activities of teachers, who for no commercial purpose and in a nondisruptive manner, sold within the schools in which they worked a newspaper disseminating the views of an organization to which they belonged. U.S.C.A. Const. Amend. 1.

7. Federal Civil Procedure. 187.5. In action by teachers challenging claimed interference with distribution in schools in which they worked of newspaper published by teachers' organization, proposed class of "persons or organizations who wish to sell or distribute literature" within the public schools or to become members of organization which works to improve the school system was too broad.

__________

Edward T. Stein, Singer & Stein, Chicago, Ill. for plaintiffs.

Michael J. Murray, Board of Education of the City of Chicago, Chicago, Ill. for defendants.

MEMORANDUM OPINION AND ORDER

DECKER, District Judge

Substitutes United for Better Schools is an organization of teachers in the Chicago public school system which, among other activities, publishes a newspaper, Substance. This organization and its president, George Schmidt, brought this action claiming that defendants have interered with distribution of the newspaper within the schools. Defendants have moved to strike and dismiss the complaint on the grounds that plaintiffs have failed to exhaust administrative remedies, that they lack standing to challenge the rule restricting distribution of such material, that the case is moot, and that plaintiffs have failed to state a claim upon which relief can be granted. Defendants also challenge the proposed class on whose behalf this action ispurportedly brought, as being overly broad.

Plaintiffs attached to their complaint and their earlier motion for a temporary restraining order copies of the regulations and directives at issue. Section 8-18 of the Board of Education Rules provides in part: "No circular, subscription list, invitation to or notice of meetings shall be circulated among the teachers, unless the same relates to the Teachers' Pension Fund, or to a national, state or local organization of public school teachers, unless the same has been approved by the General Superintendent of Schools."

As least one interpretation of this rule, in a letter from Bessie Lawrence, deputy superintendent, stated that it precluded circulation of materials published by S.U.B.S. Recently, however, defendants appear to have changed their position and now concede that plaintiffs have the right to distribute their newspaper as long as they do not charge for it. It was upon this representation that Judge Moran denied plaintiffs' motion for a temporary restraining order, without prejudice to plaintiffs attempt to seek relief from restrictions upon charging for their literature.

[1] The court will first consider defendants' contention that the case should be dismissed for failure to exhaust administrative remedies. The collective bargaining agreement between the Board of Education and the Chicago Teachers Union provides a grievance procedure that was not utilized in this case. Defendants rely upon Dunham v. Crosby, 435 F.2d 1177 (1st Circuit 1970), and Drown v. Portsmouth School District, 435 F.2d 1182 (1st Cir. 1970), cert. denied, 402 U.S. 972, 91 S.CT 1659, 29 L.Ed.2d 137 (1971), both of which state in dicta that preliminary resort to school board remedies should normally be required before a (paragraph) 1983 [Civil Rights] action can be brought. In contrast, prior resort to contractual remedies was not required in Gonzales v. Shanker, 399 F.Supp. 858 (S.D. N.Y. 1975), aff'd 533 F.2d 832 (2d Cir. 1976). The Seventh Circuit has adopted an exhaustion requirement, but only in certain narrowly defined contexts. For instance, this Circuit requires resort to prison grievance procedures before a dues process claim for confiscation of small amounts of personal property can be brought. Secret v. Brierton, 584 F.2d 823 (7th Cir. 1978). There is no indication that the Seventh Circuit would require exhaustion where, as here, it is claimed that first amendment rights are imminently threatened, and where it is unlikely that pursuit of the union grievance procedure will yield a different response than the one the school board has already given plaintiffs. Under such circumstance, an exhaustion requirement should not be imposed. See Hochman v. Board of Education, 534 F2d 1094 (3d Cir. 1976). Plaintiffs need not have filed grievances with the union before bringing this suit.

[2,3]. Defendants contend that plaintiffs do not have standing to attack the regulation restricting circulation of printed materials, because it does not restrict their activities. Although this regulation does seem to allow the distribution of material by local organizations of teachers, it may have been interpreted, as noted above, to prohibit circulation of materials published by S.U.B.S. Plaintiffs have standing to challenge this alleged practice whether or not is is in conformity with defendants' own regulations. Further plaintiffs obviously have standing to challenge the practice of refusing to allow them to charge for their newspaper. Because this latter practice continues, it is obvious that at least some of plaintiffs' claims are not moot. Defendants' contention that any possible abridgment of plaintiffs' first amendment rights has been cured by the decision to allow free distribution assumes that free distribution is all that is protected by the first amendment. This question is not one of mootness or lack of standing, but whether plaintiffs have stated a claim upon which relief can be granted. It is to this question which the court now turns.

[4} Both parties discuss the issue whether the public school is a "public forum" for first amendment purposes. Defendants rely on cases holding that courthouses, Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); military posts, Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976); buses, Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974); and jails, Adderly v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), need not be open to use by persons asserting their right to free expression. Plaintiffs rely on Spartacus Youth League v. Board of Trustees of the Illinois Industrial University, 78 C 1224 (n.D. Ill. Apr. 2, 1980), holding that a university's student union building was a public forum. The court need not decide whether the public schools are "public fora" in order to resolve the defendants' motion to dismiss. The question is not whether the schools must be open to all those who wish to circulate literature; it is whether plaintiffs, who are teachers in those schools, can constitutionally be deprived of the opportunity to sell their organization's newspaper. Resolution of this question is governed not by the public forum cases, but by Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S. Ct. 733, 21 L.Ed.2d 731 (1969), which dealth with the first amendment rights of students and teachers within the schools. "I can hardly be argued," said the Court, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 506, 89 S.Ct. at 736. Defendants in Tkiner could not constitutionally prohibit the wearing of armbands in school unless a disruption or interference with school activities could be demonstrated. Cf. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) (college could not deny recognition to student organization without stronger showing that group would be disruptive); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (upholding validity of city ordinance prohibiting noisy activity near the schools).

Defendants have implicitly accepted the authority of Tinker by acknowledging plaintiffs' right to distribute their newspaper. Having done so, they must, in order to prevail, be able to justify a distinction between distribution without charge and distribution with a charge. Under the rationale of Tinker, such a distinction could be made on the grounds of disruptiveness. However, defendants have made now showing that is is any more disruptive for plaintiffs' members to ask for 25 cents when they hand out copies of their newspaper than it is for them to hand it out without making a request. Is is almost inconceivable that such a showing could be made.

Alternatively, a distinction between selling a newspaper and giving it away might be made on the ground that the former is merely commercial activity that is subject to regulation while the latter may be protected by the first amendment. It is clear that contents of a newspaper are not unprotected simply because the newspaper is sold. See New York Times v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed. 205 (1959); Sparticus Youth League v. Board of Trustees, supra at ____. The question is whether a request for the purchase price of a newspaper is so inextricably bound up with the expressions in the newspaper itself that both are within the first amendment's scope.

This question is answered by the Supreme Court's recent decisioni in Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 100 S. Ct. 826, 63 L.Ed2d 73 (1980). There, the Court struck down an ordinance prohibiting door-to-door solicitation of contributions by charitable organizations that do not use at least 75 percent of their receipts for charitable purposes. In so doing, the Court stated that "... charitable appeals for funds ... involve a variety of speech interests — communication of information, dissemination of information and propagation of views and ideas, and the advocay of causes — that are within the protection of the First Amendment. Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease." Id. at 632, 110 S.Ct. at 833-34. In this case, where there is no suggestion that the solicitation of funds is for any other purpose than to help defray the costs of publishing the newspaper, it is even clearer than in Schaumberg that "without solicitation the flow of such information and advocacy would likely cease."

The Court in Schaumburg also found that the Village ordinance posed a particularly serious first amendment problem because the organizations affected by it were those "whose primary purpose is .... to gather and disseminate information about and advocate positions on matters of public concern." Id. at 635, 100 S.Ct. at 835.

Similarly in this case, the plaintiffs' primary object is to disseminate their views on issues relevant to public school teachers.

[5,6]. It is important to emphasize what this case does not involve. First, plaintiffs are not outsiders seeking to promote their cause within the school. Second, plaintiffs are not attempting to sell anything other than information itself. In such circumstances, the court cannot accept defendants' argument that prohibiting the sale of plaintiffs' newspaper is merely regulation of commercial activity. The court concludes that no distinction can be drawn between plaintiffs' requesting people to take a copy of a newspaper and requesting them to buy a copy. Both are protected first amendment activities. While there may be activities that may be legitimately prohibited by the board of education's regulation, it cannot be constitutionally applied to the activities of teachers who, for no commercial purpose and in a non-disruptive manner, sell, within the schools in which they work, a newspaper disseminating the views of an organization to which they belong. Plaintiffs have stated a claim on which relief may be granted.

[7]. This rationale for denying defendants' motion to dismiss dictates the ruling on defendants' motion in opposition to class certification. The proposed class includes "persons or organizations who wish to sell or distribute literature within the Chicago public schools or who wish to be or become members of an organization such as S.U.B.S. which works to improve the school system." Such a class would presumably include school-children who wish to sell magazine subscriptions for their own personal profit, as well as persons who are neither employees nor students but wish to use the public schools as a forum to publish their views. The holding above is not broad enough to cover such groups, and the court declines to decide the issues that would be relevant to determination of their claims without a live controversy before it. The court therefore denies certification to the class as presently proposed, without prejudice to plaintiffs' amending their complaint to more narrowly define the class so as to insure that the questions of law and fact dispositive of the result in this opinion would apply to all of its members. According, for the reasons given, defendants' motion to strike and dismiss the complain is denied. Their motion to deny leave to proceed as a class action is granted. 

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