Sections:

Article

Complete decision by U.S. District Judge Amy St. Eve in granting the Temporary Restraining Order against the Chicago Board of Education in the case of Lynch v. Huberman

[Editor's Note: What follows is the complete text of the decision by U.S. District Judge Amy St. Eve that was returned on the afternoon of March 26, 2010, from the United States District Court, Northern District of Illinois, Eastern Division, in the case of 'Lynch et al vs. Huberman et al. (10 C 1983). What follows is the legal material that was provided to the public in the case. This material is now (March 26, 2010) available on the "U.S. Courts" Website for those registered in PACER. George N. Schmidt, Editor, Substance].

10-CV-1783 , United States District Court, Northern District of Illinois, 3/26/2010

The first page of the March 26 decision by U.S. District Judge Amy St. Eve in the case of Lynch v. Huberman. A copy of the complete decision is published here at www.substancenews.net and is available in PDF format (an exact duplicate) for readers who write to Csubstance@aol.com. Please put "RSVP DECISION" in the Subject line of your e-mail request.Plaintiffs' Motion for Preliminary Injunction [6] is granted. Joint status report with proposed discovery deadlines to be filed by 4/12/10. Initial status hearing set for 4/15/10 at 8:30 a.m.

STATEMENT

Defendants Rob Huberman, Chief Executive Officer of Chicago Public Schools (“CPS”), and the

Board of Education of the City of Chicago (collectively, the “Board”) recently issued a policy that prohibits Board employees from campaigning for union elections on school property during non-school hours, and from distributing campaign literature in support of those candidates on school grounds. Plaintiffs Deborah Lynch, Josephine Perry, Maureen Callaghan, Mary Ellen Sanchez, Mary Edmonds, Kevin Condon, Daniel Van Over, Cindy Heywood, and Allen Bearden (“Plaintiffs”), members of the Chicago Teachers Union (“CTU”) running as a slate for elected union office, allege that the Board’s policy violates their rights under the First and Fourteenth Amendments by restricting their workplace speech. Plaintiffs seek a preliminary injunction to prevent the Board from enforcing the policy. For the following reasons, the Court grants Plaintiffs’ motion for preliminary injunction.

BACKGROUND

I. Procedural History

Plaintiffs filed their complaint and motion for temporary restraining order or preliminary injunction on March 22, 2010. The Board received notice of the hearing, and the Court heard argument and held evidentiary hearings on Plaintiffs’ motion on March 23, 2010 and March 24, 2010. The Court heard testimony from and weighed the credibility of the following witnesses: (I) Deborah Lynch, a CPS teacher, CTU member, past president of CTU (2001-2004), and union candidate; (ii) Michael Bronson, a CPS teacher, CTU member, and union candidate; (iii) Maryellen Sanchez, a CPS teacher and CTU member; (iv) Russell Ehler, a CPS teacher and CTU member; (v) Sarah Loftus, a retired CPS teacher and current CTU member; (vi) Cynthia Heywood, a CPS teacher, CTU member, and union candidate; and (vii) Rachel Resnick, Chief Labor Relations Officer for the Board. The Court also heard arguments from counsel for both parties.

II. The PACT Campaign

On May 21, 2010, members of the CTU will elect forty-three CTU officers and one hundred and fifty convention delegates. Plaintiffs are currently campaigning as part of a slate of candidates, ProActive Chicago Teachers and School Employees (“PACT”), for these elected positions. In the past few months, Plaintiffs have visited more than sixty schools to hold before and after school informational meetings about their candidacies, and have distributed campaign literature to more than 30,000 union members via transmission to school mailboxes by union delegates. PACT also has an informational website and has held two or three campaign activities at local bars and restaurants.

Three of the plaintiffs in 'Lynch vs. Huberman' posed for the Substance cameras in front of the plaque containing the Bill of Rights after Judge St. Eve's hearing on March 24, 2010. Left to right, lead plaintiff Deborah Lynch (currently a teacher at Gage Park High School running for CTU President) and plaintiffs Mary Ellen Sanchez and Maureen Callaghan. Substance photo by George N. Schmidt.Deborah Lynch, a CPS teacher, CTU member, and PACT candidate, testified that the only way PACT can hold such off-campus meetings is by disseminating campaign literature to its membership. Ms. Lynch testified that the only way PACT can reach CTU members is by sharing information through union delegates because PACT does not have access to union members’ contact information. Although Plaintiffs have the ability to request the CTU to send out a mailing to its members, the cost to do so, $20,000, is prohibitive given the grassroots nature of the campaign and the fact that teachers and staff are paying for the campaign. Ms. Lynch also testified that it is important for PACT to campaign in schools because that is where union members are located. PACT candidates hold informational meetings in CPS schools to raise issues and answer questions from CPS employees, and to distribute campaign materials. Ms. Lynch further testified that opposition groups in the upcoming CTU election also regularly hold campaign meetings on school property. Ms. Lynch testified that, prior to this lawsuit, she was unaware of any complaints regarding PACT’s campaign meetings or mailings, and that she has never complained to the Board about the campaign activities of opposition candidates.

Maryellen Sanchez, a CPS teacher, CTU member, and union candidate who campaigned at various schools during nonschool hours, also testified that to her knowledge no one had ever complained about PACT’s campaign activities or that PACT disrupted school operations in any way.

Rachel Resnick, Chief Labor Relations Officer for the Board, testified that she was involved in addressing complaints regarding both the 2007 union election and the current union election. Regarding the 2007 complaints, Ms. Resnick testified that she received complaints via e-mail and telephone calls, and that she participated in meetings regarding election campaign activities on school property. She noted that she received these complaints from teachers, principals, and various caucuses running for election. Ms. Resnick characterized the tone of some of the complaints as acrimonious or contentious.

The Board also introduced into evidence a March 9, 2007 email from Ted Dallas, Vice President of the CTU, requesting Ms. Resnick to investigate the use of a school intercom by a staff member during school hours to urge CTU members to complete a survey prepared by the PACT caucus. Ms. Resnick responded to Mr. Dallas that the principal at Mr. Dallas’s school would make it clear to all staff that campaigning for any slate was not permissible on school grounds.

Although the caucuses opposing Marilyn Stewart's United Progressive Caucus (UPC) know that they will never completely level the playing field in the upcoming union election, all objected to the way in which Stewart worked with management to give her an even greater edge against her opponents. While Stewart was cooperating with Ron Huberman in banning union meetings in the schools by the opposition groups, Stewart was going across the city on official "union business." The above page, from the issue of the Chicago Union Teacher (the union's official newspaper) appeared in the union newspaper that was distributed to all 30,000 union members during the same week that the case of 'Lynch vs. Huberman' was in federal court. Marilyn Stewart did nothing to support Deborah Lynch and her fellow teachers in what amounted to the biggest teacher rights case in recent Chicago history, and most union members believe that Stewart herself helped encourage the March 12 Huberman memo, as some evidence presented in the case seemed to show.With regard to the complaints that led to the Board’s recent memorandum, Ms. Resnick testified that she has had thirty to forty conversations regarding the current union campaign activities. She has received complaints from teachers regarding receipt of campaign materials from a particular slate, and complaints regarding the tone and language of the materials. She has also received queries from principals regarding what to do when campaign materials posted on school walls do not employ professional language. She has also had conversations with principals who have asked for guidance when caucus candidates request tables to be set up by school officials so that they can have teachers sign petitions and receive campaign material.

III. The Board’s Policy

The Rules of the Board of Education of the City of Chicago (“Board Rules”) govern use of school facilities after regular hours of building operation. Sec. 6-25.II provides that “School Affiliated Non-Student Groups,” defined as “groups whose mission is [sic] promote the educational mission and/or the efficient operations of a school,” may use the school facilities within certain restrictions. Sec. 6-25.V provides that “Community and Other Non-School Affiliated Student Groups,” defined as “groups whose mission is unrelated to the Chicago Public Schools,” “may use the school facilities for free, as determined by the principal, for free public lectures, concerts, or other educational and social interests, when school is not in session, subject to the reasonable restrictions on the time, place and manner of such usage imposed by the principal.” (R. 7-3, Ex. C.)

Ms. Resnick also testified that in order for these before or after school activities to occur, groups need permission from the school principal, and an administrator needs to be present on-site, as well as an engineer or custodian to keep the facilities running.

Rule 6-18 governs circulation and distribution of unauthorized written materials and provides that: “No employee or other person shall circulate, permit to be circulated, distribute or exhibit, whether in written or electronic form on school grounds . . . any advertisements, circular, subscription list, invitation or notice of meetings, any book, map or other article, or any other material or a commercial, political or sectarian nature, among the pupils, teachers, or other employees, except by approval of the principal [or other executives], setting forth the time, manner and place of the circulation or distribution.” (R. 7-4, Ex. D.) Board Rule 6-18 also prohibits the distribution of obscene or libelous material to school employees, but does not otherwise provide any content-based restrictions. Ms. Resnick testified that the Board’s policies prohibit the distribution of any political materials to school mailboxes, and that materials that are placed in teachers’ school mailboxes are “somehow either related to a benefit that teachers or students would receive from an organization or business.”

IV. The Board’s Practices

Affidavits and testimony introduced by Plaintiffs demonstrate that over seventy-eight non school related community and commercial organizations regularly hold meetings at Chicago public schools during non-school hours. These groups include: religious groups, community organizations, coaching associations, GED classes, tax assistance programs, COSTCO, National Education Insurance, Nutra System, Weightwatchers, financial advisors (AIG, Netlife, Prudential), vendors of school supplies, Boy Scouts of America, environmental groups, cosmetic companies, sororities and home security system companies, among others. This evidence was uncontested. The affidavits and testimony also show that employees have received materials in their school mailboxes from over forty-seven groups, including the following: various colleges, Chicago Public Library, ING Financial Services, COSTCO, OfficeMax, Local School Council (“LSC”) candidate information, Chicago sports teams (Bulls, White Sox), Kohls, Carsons, day care centers, Art Institute of Chicago, J.C. Penny’s, United Negro College Fund, Borders, Target, New York Life and Jiffy Lube.1

For example, Cynthia Heywood testified that she received flyers from catering groups, Borders, the Bulls, the White Sox, and Carsons in her school mailbox.1 The parties presented no evidence regarding whether these outside organizations secured permission from school principals prior to hosting events or distributing materials on school campuses.

Russell Ehler testified that Columbia College, GED classes, and Chicago wrestling coaches association all held meetings and events at school facilities, and that he has received materials from various financial institutions, the Bulls, the White Sox, ESPN magazine, and various institutions of higher education in his school mailbox.

Maryellen Sanchez testified that the Boy Scouts, various financial institutions, insurance companies, home security system companies, Reading is Fun, and other vendors hold meetings and events at school facilities, and that she has received materials from Borders, Lake Shore Learning, Office Max, Office Depot, Staples, and United Negro College Fund in her school mailbox.

Prior to March 12, 2010, PACT candidates also held before and after school informational meetings regarding their candidacies and campaigns at schools in Chicago. PACT also distributed campaign materials to CTU members via union delegates who placed campaign brochures and announcements in union members’ school mailboxes.

Sarah Loftus, a former CPS teacher, CTU member, and union candidate, credibly testified that until she retired from teaching in 2007, she repeatedly received union campaign materials in her school mailbox. The LSC, a group made up of teachers, parents, administrators and community representatives that sets policies for schools and oversees school budgets, also routinely campaigns on school property.

V. The March 12, 2010 Memorandum

On March 12, 2010, Defendant Huberman issued a memorandum to all CPS principals (the “March 12, 2010 Memorandum”). (R. 7-2, March 12, 2010 Memorandum.)

Ms. Resnick testified that the Board issued the memorandum due to its desire to maintain a neutral appearance in the current union campaign. The March 12, 2010 Memorandum prohibits the use of school facilities for union campaign activities and prohibits the distribution of campaign materials on school grounds. The memorandum directs schools to address violations of the directive in accordance with the Employee Discipline Code. The March 12, 2010 Memorandum provides that the Board is taking these actions to ensure that: (i) CPS resources are used for school business only, (ii) CPS administrators maintain a position of neutrality with respect to union elections, and (iii) CPS employees use their duty time for school business. With regard to the distribution of campaign materials, the memorandum also states that the Board is “taking this action to avoid the appearance that any CPS administrator endorses a candidate, to ensure that administrators do not have to waste time monitoring the distribution and review of campaign materials on work time, and to avoid the disruption that can plague highly contested union elections.” Id.

Ms. Lynch testified that without the in-school activities that the March 12, 2010 Memorandum prohibits, “there is no union campaign. It’s as if Mr. Huberman with this memo has suspended the union campaign.” Other candidates testified that their campaigns have been hindered since the issuance of the March 12, 2010 Memorandum, and that certain schools have cancelled scheduled PACT meetings. Witnesses also testified that, due to the March 12, 2010 Memorandum, they fear discipline if they continue to campaign for PACT at school facilities during non-school hours.

LEGAL STANDARD

“A preliminary injunction is an extraordinary remedy intended to preserve the status quo until the merits of a case may be resolved,” Indiana Civil Liberties Union v. O’Bannon, 259 F.3d 766, 770 (7th Cir. 2001), and as “a very serious remedy, [it is] never to be indulged in except in a case clearly demanding it.” Barbecue Marx, Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1044 (7th Cir. 2000) (internal quotation omitted). “A party seeking to obtain a preliminary injunction must demonstrate: (1) its case has some likelihood of success on the merits; (2) that no adequate remedy at law exists; and (3) it will suffer irreparable harm if the injunction is not granted.” Ty,

Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). “If the court is satisfied that these three conditions have been met, then it must consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied.” Jones Group, 237 F.3 at 895 (citing Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994)). “Finally, the court must consider the public interest (non-parties) in denying or granting the injunction.” Id. (parentheses in original). The court then weighs all of these factors, in a process that “involves engaging in . . . [a] sliding scale approach; the more likely the plaintiff will succeed on the merits, the less the balance of irreparable harms need favor the plaintiff’s position.” Id.

ANALYSIS

I. Likelihood of Success on the Merits

To succeed on their claim, Plaintiffs must demonstrate that they have some likelihood of success on their First Amendment claim. Ty, Inc., 237 F.3d at 895 (7th Cir. 2001). Courts apply different levels of scrutiny in free speech cases depending on whether the relevant forum is a traditional public forum, designated public forum, limited public forum, or nonpublic forum. Ill. Dunesland Pres. Soc’y v. Ill. Dep't of Natural Res., 584 F.3d 719, 722-723 (7th Cir. 2009). See also Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132, 172 L. Ed. 2d 853 (2009).

Plaintiffs contend that CPS facilities during non-school hours and employee mailboxes are designated public fora because the Board has “deliberately open[ed] its schools to – and, indeed, inviting – a wide-ranging assortment of teacher groups and clubs, student organizations, community organizations, and businesses.” (R. 7-1, Board’s Memorandum, p. 9-10.)

The Board contends that these locations are nonpublic fora because the Board only permits limited access to non-school groups. In order to determine whether Plaintiffs are likely to succeed on their claim, the Court must first determine the nature of the relevant forum.

A. Defining the Relevant Forum

The Seventh Circuit has held that “[t]he relevant forum is defined by focusing on ‘the access sought by the speaker.’ If a speaker seeks ‘general access’ to an entire piece of public property, then that property is the relevant forum. If a speaker seeks a more limited access, however, then we must tailor our approach to ascertain ‘the perimeters of a forum within the confines of government property.’” Air Line Pilots Ass’n, Int’l v. Department of Aviation, 45 F.3d 1144, 1151 (7th Cir. 1995) (internal citations omitted). There are two fora at issue in this case: (i) public school facilities before and after school hours (for holding meetings and handdelivering

campaign materials), and (ii) teacher mailboxes (for delivering campaign materials).

B. The Status of Public School Facilities During Non-School Hours and Teacher Mailboxes

Both the Supreme Court and the Seventh Circuit have recently set forth the standard that courts must apply to determine whether a particular location is a public forum, a nonpublic forum, or something in between those designations. In Ill. Dunesland Pres. Soc’y v., 584 F.3d at 722-723, the Seventh Circuit, relying in part on the Supreme Court’s decision in Pleasant Grove City v. Summum, 129 S. Ct. at 1132, addressing the public/nonpublic forum distinction, explained:

A ‘forum’ in that jargon is a piece of public property usable for expressive activity by members of the public (‘private speech,’ in forum jargon). The Supreme Court distinguishes a ‘traditional public forum’ from a ‘designated public forum’ and both from a ‘nonpublic forum.’

A traditional public forum is a street or park, or some other type of public property that like a street or park has long . . . been used for expressive activity, such as marches and leafletting. A designated public forum, illustrated by a public theater, is a facility that the government has created to be, or has subsequently opened for use as, a site for expressive activity by private persons. Usually, as in the case of a public theater, it is available only for specified forms of private expressive activity: plays, in the case of a theater, rather than political speeches. . . .

The third category -- the ‘nonpublic forum’ -- consists of government-owned facilities . . . that could be and sometimes are used for private expressive activities but are not primarily intended for such use. The government can limit private expression in such a facility to expression that furthers the purpose for which the facility was created.

Some decisions recognize a fourth category, a variant of the second, variously called a ‘limited designated public forum’. . . , a ‘limited public forum,’ or a ‘limited forum.’ [citing Pleasant Grove City]. The terms denote a public facility limited to the discussion of certain subjects or reserved for some types or classes of speaker. Id. at 722-23 (internal citations omitted).

The Supreme Court explains that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose. Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City, 129 S. Ct. at 1132 (internal citations omitted). Accordingly, reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983), but content-based restrictions must be narrowly tailored to serve a compelling government interest. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985).

Conversely, in limited public forums, “a government entity may impose restrictions on speech that are reasonable and viewpoint-neutral.” Id. (citing Good News Club v. Milford Central School, 533 U.S. 98, 106-107, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001)).

The Seventh Circuit has previously addressed whether a school may be considered a public forum. In May v. Evansville-Vanderburgh School Corp., the Seventh Circuit held that an elementary school was not a public forum where the school was not used for meetings unrelated to school business. The court explained that, “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.” 787 F.2d 1105, 1118 (7th Cir. 1986) (internal citation and quotation omitted) (emphasis added).

Similarly, in Vukadinovich v. Board of Sch. Trustees, the Seventh Circuit again found that “[p]ublic schools . . . become public fora ‘only if school authorities have “by policy or by practice” opened those facilities “for indiscriminate use by the general public” or by some segment of the public such as student organizations.’” 978 F.2d 403, 409 (7th Cir. 1992).

Here, the evidence overwhelmingly demonstrates that the Board has opened up CPS facilities for a wide variety of non-school related purposes during before and after school hours. The evidence shows that over seventy-eight different groups, including financial institutions, vendors, coaching associations, community organizations, vendors of school supplies, environmental groups, and dieting groups, hold meetings and informational sessions on CPS campuses. While the Board Rules may purport to limit access to the use of school grounds to certain outside organizations, the evidence demonstrates that, in practice, the Board has opened its campuses for a wide range of public discourse that has nothing to do with the education of the students. Plaintiffs have therefore demonstrated that the Board has created designated public fora because they have “opened [school facilities] for use as, a site for expressive activity by private persons.” Id. Ill. Dunesland Pres. Soc’y, 584 F.3d at 722-723. See also Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1378-79, 1382 (3d Cir. 1990) (holding that defendant had created a designated public forum in high school facilities by opening them up to a wide range of

programming and a variety of community, civic and political organizations).

Plaintiffs have similarly demonstrated that the Board has opened up employee mailboxes to a wide variety of organizations, thereby creating a designated public forum in the mailboxes as well. The Board relies on Davidson v. Community Consol. Sch. Dist. 181, 130 F.3d 265 (7th Cir. 1997), for the proposition that a school district’s internal mail system is a nonpublic forum. In Davidson, however, the Seventh Circuit held that a particular school district’s internal mail system was a nonpublic forum because the normal and intended function of such a system was to facilitate internal communication, and that a school district did not violate the First Amendment when it limited the use of that mail system. The Seventh Circuit further held “that the District’s decision to limit the use of the internal mail system to those involved in the governance of the District, including the Union,” but to prohibit union candidates from using the mail system for campaign activities, was “content neutral and rationally related to the purpose of the mail system.” Id. at 268, n.4. The facts of the present case, however, differ from Davidson. Plaintiffs have demonstrated that over forty-eight community, educational, civic, and commercial organizations routinely employ school mailboxes to disseminate flyers and informational brochures. Accordingly, Plaintiffs have established that Defendants created a designated public forum.

Defendants argue that the Supreme Court’s holding in Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) controls this case. Perry involved a teachers association that a school district barred from access to its inter-school mail system, after a union was elected exclusive bargaining representative for the teachers in the school district. The teachers association alleged that the preferential access to the internal mail system was a violation of its First Amendment rights. Id. at 38. The teachers association argued that the interschool mail system was a limited public forum, and that the school district could not bar it from using the system because it permitted other non-school groups to access the system. Holding that the school mail system was not a public forum, the Supreme Court explained: The internal mail system, at least by policy, is not held open to the general public. It is instead [plaintiff’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 . . . .

[This argument is not] 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 [plaintiff]

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. . . .

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 [plaintiff], which is concerned with the terms and conditions of teacher employment. Id. at 47-48.

Contrary to the facts in Perry, here Plaintiffs have established that the school district has opened up its facilities and mailboxes to an extremely wide range of organizations, including organizations that are not of interest or relevance to students. In other words, there is no evidence of “selective access.” While the Board presented evidence that its written policy provides that school principals may limit access to outside organizations, Defendants did not present evidence that any principals have limited access to school facilities. Instead, the evidence demonstrates that an extremely wide range of groups have access to school facilities and mailboxes, including many groups that have nothing to do with furthering education.

Moreover, the Supreme Court’s finding in Perry that “exclusion of [a] rival union may reasonably be considered a means of insuring labor peace within the schools” because the policy “serves to prevent the District’s school from becoming a battlefield of inter-union squabbles” does not govern the facts of this case for two reasons. Id. at 52. First, the Supreme Court articulated the school district’s policy as a “reasonable” policy in light of the purpose for which the forum at issue served, the appropriate analysis in a nonpublic forum case. Second, the Supreme Court specifically noted that pursuant to state law, “during election periods, [plaintiff] is assured of equal access to all modes of communication,” including the internal mail system. Id. at 41, 53.

Accordingly, the Supreme Court’s pronouncement only amounts to a finding that it was reasonable for the school district in Perry to avoid “inter-union” squabbles during non-election time frames.

Because the undisputed evidence demonstrates that the Board has opened up CPS facilities during before and after school hours to a wide variety of organizations, and that the Board has permitted a large number of organizations to disseminate non-school related information via employee mailboxes, Plaintiffs have demonstrated that these locations are designated public fora. The Court accordingly turns to the appropriate scrutiny to apply to a restriction on speech in a designated public forum.

C. Scrutiny of Speech Limitation

“Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132 (2009). Reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn., 460 U.S. at 45, but contentbased restrictions must be narrowly tailored to serve a compelling government interest. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985).

The Board has conceded that the restrictions contained in the March 12, 2010 Memorandum, which apply only to speech that involves campaigning activity, are contentbased. Because the Board has not proffered a compelling government interest for its restrictions, Plaintiffs have

established a likelihood of success on the merits of their First Amendment claim.

According to the Board, the rationale for its policy prohibiting union campaigning on school grounds is that the Board wishes to retain the appearance of neutrality in union elections, conserve school resources for school purposes, and prevent employees from engaging in non-work related activities during working hours. The Board’s intentions, however, are belied by its previously established Board Rules which indicate that the Board permits a wide variety of outside groups to use school facilities during non-school hours. Moreover, the evidence shows that it is the Board’s practice to permit over seventy-eight community and commercial groups to use school facilities and over forty-seven groups to distribute information via school mailboxes. While Ms. Resnick testified that she believed that the groups using CPS facilities were tied to student or teacher interests, the evidence demonstrates an almost unlimited assortment of organizations used school facilities and/or distributed information to employees.

The Board has also failed to show that its purported interest in maintaining neutrality in union elections is compelling. The evidence demonstrates that union candidates have campaigned on school property and distributed campaign literature in the CPS schools for years. While the Board has presented evidence regarding complaints associated with union campaign activity, the Board has not presented any specific instances of complaints based on the use of school property to host campaign events. Furthermore, the Board has not presented any evidence as to how such activity available to all candidates would impact its neutrality.

Additionally, the evidence demonstrates that union candidates are not the only group that campaign on campus. Multiple witnesses testified that candidates for LSC positions in various schools regularly campaign on school campuses.

The Board’s contentions that its policy is important to provide a quality education to CPS students and to ensure that CPS resources are used for school business are also not persuasive. The union campaign activity will only take place when students are not present. Finally, the Board has not presented any evidence to demonstrate that union campaigning has interfered with employees’ productivity or work during school hours. It is also uncontested that the activities at issue do not take place during school hours.

Additionally, given that many other groups distribute coupons and flyers to teachers via their school mailboxes, the school’s ability to review and distribute mail does not appear to be a reasonable justification for a bar on candidates delivering campaign materials via this avenue. The evidence shows that the Board permits a wide range of flyers and informational brochures to be distributed to employee mailboxes. Moreover, the Board has not explained how the distribution of union campaign materials would require any further monitoring by the Board, or how the distribution would disrupt the workplace. See, e.g., Weingarten v. Bd. of Educ., 591 F. Supp. 2d 511, 522 (S.D.N.Y. 2008) (“[T]he rationale offered by defendants - ‘leafleting’ through the mailboxes might overwhelm a school’s ability to review and distribute mail - does not appear on the record before me to be a reasonable justification for a blanket bar on the union delivering candidate-related materials in mailboxes that are not open to students.”)

Because the Board has failed to proffer a compelling interest for its restraint on speech, Plaintiffs are likely to succeed on the merits of their claim.

II. No Adequate Remedy at Law

The Seventh Circuit has held that money damages cannot fully compensate a plaintiff for loss of free speech rights prior to an election. Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir. 1998) (“[Plaintiff] lacks an adequate remedy at law as any post election remedy would not compensate it for the loss of the freedom of speech.”) (citing Grossbaum v. Indianapolis-Marion County Bldg. Auth., 63 F.3d 581, 585 (7th Cir. 1995)). See also National People’s Action v. Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990) (“[I]njunctions are especially appropriate in the context of first amendment violations because of the inadequacy

of money damages.”); Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982) (“In [first amendment] cases the quantification of injury is difficult and damages are therefore not an adequate remedy.”).

Given the free speech rights at issue and the impending election on May 21, 2010, Plaintiffs have shown that they lack an adequate remedy at law.

III. Irreparable Harm

Plaintiffs allege that they will suffer irreparable harm unless an injunction issues because Plaintiffs will continue to suffer injury if their speech is restrained. The union election is less than two months away. Ms. Lynch’s credible testimony demonstrates that the only way that PACT can reach CTU members is by sharing information through union delegates because PACT does not have access to union members’ contact information and the cost to request a CTU mailing is prohibitive given the grassroots nature of the campaign. Indeed, Ms. Lynch testified that without in-school activities, “there is no union campaign.”

Moreover, even without Ms. Lynch’s testimony, Plaintiffs could establish irreparable harm. The Seventh Circuit has held that, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Brownsburg Area Patrons Affecting Change, 137 F.3d at 507 (citing Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (plurality opinion)). See also National People’s Action, 914 F.2d at 1013 (“Even a temporary deprivation of first amendment freedom of expression rights is generally sufficient to prove irreparable harm.”)

Because the Board’s policy curtails First Amendment rights, Plaintiffs have demonstrated that continuation of the Board’s policy will result in irreparable injury.

IV. Balancing the Harms

Because Plaintiffs have met all three requirements for the imposition of a preliminary injunction, the Court must balance any irreparable harm that Defendants will suffer against the irreparable harm Plaintiffs will suffer if the Court denies them relief. Jones Group, 237 F.3 at 895 (citing Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994)).

While Ms. Resnick testified that the Board does not allow political materials to be placed in school mailboxes, Plaintiffs have presented evidence that PACT has campaigned on school grounds and distributed school materials to union members’ mailboxes for years. Defendants have not demonstrated that they will suffer significant harm if Plaintiffs are permitted to continue to campaign during nonschool hours until the resolution of this lawsuit, especially given that the election is less than two months away.

Moreover, given the First Amendment issues presented, Plaintiffs will clearly suffer harm if the injunction does not issue. Finally, Defendants have presented no evidence that the public will be harmed by the issuance of an injunction, or any evidence that the granting of the preliminary injunction will affect the education of children at school. Accordingly, the balancing of the harms weighs in favor of granting the preliminary injunction.

CONCLUSION

For the foregoing reasons, the Court grants Plaintiffs’ request for a preliminary injunction. Defendants are prohibited from interfering with (i) Plaintiffs’ right to organize before and after school meetings in Chicago Public Schools during non-work hours to discuss their candidacies for elected union office, and (ii) Plaintiffs’ right to have campaign literature distributed in school facilities, including school mailboxes, before and after school hours.



Comments:

March 26, 2010 at 7:05 PM

By: kugler

Discriminatory Activity

It is now illegal for any administrator to violate this order in any way. This order was in effect when the judge made the order there is no waiting for any explanations this, it is the law!

March 26, 2010 at 7:26 PM

By: George N. Schmidt

Board must rescind the March 12 order and publish that retraction

While it is technically true that Judge St. Eve's order is effective immediately, the Board of Education now has a responsibility to rescind Ron Huberman's March 12 order and clarify all of the ways specified in which candidates are permitted to hold meetings and distribute materials in mailboxes (both of which are specified in her order, as a full reading shows).

Don't count on Ron Huberman or the Board to follow the federal court. In our 1980 case (S.U.B.S. v. Rohter), the Board was ordered by Judge Decker to cease all interference with the sale of Substance in the schools (subject to the same reasonable restrictions of time place and manner), and refused to do so.

We were back in court a month later in front of Judge Decker with evidence that CPS had simply ignored his decision. When he heard our evidence, he ordered the Board to appear in court immediately, fined them $10,000 per day, and held them in contempt of court. It was only then that CPS issued directives to all principals regarding the Substance decision and they generally stopped harassing us. However, five years later, a rogue principal (Reggie Brown) refused to allow Substance to distribute materials to mailboxes, and we had to get an order reminding him that the law applied to him as well. This all took place between 1980 and the late 1980s, but there is no reason to believe that CPS officials will follow the law simply because a federal judge has told them to. They are used to acting as a law unto themselves, and until they issue a recission of the Huberman order and direct all principals to enforce the First Amendment rights of teachers, they will have to be watched.

As soon as someone's back is turned, they will resume their practices as if the Bill of Rights never existed. It's their nature.

March 27, 2010 at 1:22 AM

By: kugler

Union Meetings - Contract Rules‏

we do not ask for permission to have a meeting, we give notice of our meeting!

Remember we are the UNION and the elections are official union business!

1-17. On twenty-four hours’ notice to the principal of the school, the UNION shall have

the right to schedule meetings in the building before or after regular duty hours and during lunch time of teachers or other bargaining unit members involved in matters

concerning their employment, the provisions of this Agreement and for the conduct of

UNION business, provided said meetings do not interfere with an in-service or general

faculty meeting previously scheduled and posted prior to the twenty-four-hour

notification given to the principal by the UNION. Where such meetings are held outside

of the operating hours of that school, the UNION shall pay the additional costs.

March 27, 2010 at 1:46 AM

By: kugler

government becomes a lawbreaker

If the government becomes a lawbreaker,

it breeds contempt for law;

it invites every man to become a law unto himself; it invites anarchy.

Olmstead v. US, 277 US. 438,485 (1928)

March 27, 2010 at 6:22 PM

By: Arlene Gloria Hirsch

Retired Teacher

Thanks to SubstanceNews for great reporting,

Thanks to John Kugler for great reaearch,

Thanks to Deborah Lynch and PACT for a great job in pressing this case so well, and in a timely manner.

Respectfully,

Arlene Gloria Hirsch

Retired CORE Teacher [Caucus of Rank and File

Educators]

March 27, 2010 at 7:26 PM

By: Wade Tillett

Good-bye parking lots

Well, I had more than one teacher ask me why I was in the parking lots collecting signatures for petitions. And more than one that refused to sign because of that.

Also glad the decision makes literature distribution to mailboxes protected. That only makes sense given what we usually get in our mailboxes ("coupons" to the circus to distribute to our students, etc.).

Thanks for posting the whole decision here.

March 30, 2010 at 8:41 AM

By: George N. Schmidt

Daley pulling a George Wallace?

Last Friday, as I reported, I asked for comments from Ron Huberman and Mary Richardson Lowry about Judge St. Eve's decision. From Huberman, I got the usual "Bondage" (Monique Bond refuses to talk with Substance and Huberman is afraid to, so she is the place he hides behind).

Richardson Lowry was asked whether she is going to continue wasting the Board's time, money and legal talents on defending Lynch v. Huberman. Whether it be true or false that the Board is "back in court" on April 15 (as WBEZ reports, to "balance" their version of the story), the fact is that every day spent and every penny spent on Lynch v. Huberman by CPS is a waste of taxpayer money and and exercise in ego on the part of the Board.

That's one of the many questions I was going to ask Huberman and Richardson Lowry. (There are others, since both of them approved that major attack on teachers, the U.S. Constitution, and common decency when they approved the March 12 Huberman order).

But this morning, as I look out at the sunrise over the Berkeley (California) Marina (we're on R & R plus consulting with the Substance Web designer here at the University of California), it's obvious that Mayor Daley has ordered Huberman and Richardson Lowry, both of whom are simply his puppets, despite all their prattle about their back stories (Huberman's gay numbers guys nonsense; Richardson Lowry's equal nonsense about how she became a million dollar lawyer serving Richard M. Daley but still has her heart with the teachers, because of Mom, blah, blah, blah...

They are both about to try what was called "interposition" back in the days when White America was blocking desegregation in the years following the U.S. Supreme Court decision in Brown v. Board of Education. Whether the historical model they're following is Orville Faubus or George Wallace, let's not forget that this is typical white guy I AM THE BOSS stuff, and that no matter what the deconstructionist narrative of Huberman or Richardson Lowry may be, they're both working on the commands of Richard M. Daley.

Therefore?

I don't think CPS principals are going to know that a federal judge is watching them and that the rules they're following now are unconstitutional. How were they going to learn this information? Chicago Tribune? Chicago Sun-Times? CPS leadership?

The organization necessary to enforce teachers' rights is just beginning. Every caucus (including SEA and CSDU) should coordinate a April 5 distribution and mailbox plan. Literature to distribute, meetings to schedule. Documenting everything.

On April 7, everyone can work together to demand that Marilyn Stewart explain whey her top staff were forming a Ron Huberman fan club (that's the only way I can describe the Mary McGuire and John Ostenburg e-mails that Board included in its 57 page defense) while helping Huberman unconstitutionally violate teachers' rights.

That's enough for one morning.

March 30, 2010 at 9:40 AM

By: kugler

The Anti-Union Union

where are a troubles coming from in the CTU one of easiest answers is to look at why we are consistentantly loosing in springfield which is easy we have a scab hired to do our lobbying. so basically we are paying to get ____________

you can fill in the blank!

3-year coverup - CTU President hired scab for $100,000 per year legislative lobbying job

http://www.substancenews.net/articles.php?page=135

in the coming weeks i will revisit some of the other anti-union activities like testifying to terminate teachers, back-room deals, triple dipping.......

Add your own comment (all fields are necessary)

Substance readers:

You must give your first name and last name under "Name" when you post a comment at substancenews.net. We are not operating a blog and do not allow anonymous or pseudonymous comments. Our readers deserve to know who is commenting, just as they deserve to know the source of our news reports and analysis.

Please respect this, and also provide us with an accurate e-mail address.

Thank you,

The Editors of Substance

Your Name

Your Email

What's your comment about?

Your Comment

Please answer this to prove you're not a robot:

1 + 4 =