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Teachers have a Charter right to display political materials in schools, appeal court rules

July 10, 2013

Setting aside an arbitrator's decision, the British Columbia Court of Appeal has declared that teachers have a right, pursuant to the guarantee of freedom of expression under the Charter, to display posters and wear buttons in schools containing political messages critical of the government's educational policies. Finding that a prior decision of the Court of Appeal was indistinguishable and binding, the Court determined that the school district's ban of the posters and buttons was not a reasonable limit on the teachers' freedom of expression, particularly in view of the fact that there was no evidence in the circumstances of harm to the students and their educational experience.

The Facts:

When an arbitrator upheld, as a reasonable limit on the Charter-protected s.2(b) right to freedom of expression, an employer directive prohibiting teachers from displaying posters and wearing buttons on school grounds, which expressed views critical of government educational policies, the British Columbia Teachers' Federation appealed to the province's Court of Appeal.

In January 2009, in response to upcoming provincial elections, the British Columbia Teachers' Federation conducted a political campaign entitled "When Will They Learn?" The campaign, which was reported widely in the media, criticized the educational policies of the provincial government, focusing on three main messages: that special needs education was being neglected, that 177 schools had been closed, and that 10,000 classes were overcrowded.

In an April 2009 e-mail to school principals, the Director of Instruction/Human Resources for the school district of Southeast Kootenay stated that political posters were not to be displayed in school hallways, classrooms, or on school grounds. Teachers were permitted to display union materials on assigned bulletin boards in staff rooms.

In May 2009, at one elementary school, two teachers posted materials in school hallways where parents and students could easily see them. At another elementary school, a teacher put up posters outside and inside her classroom door. She regularly met with parents in her classroom, some of whom discussed the posters with her. In addition, a secondary school teacher placed a bumper sticker in the window of her classroom, where it could be seen by parents entering the school, as well as by students. Some teachers also wore campaign buttons at work.

Principals ordered the teachers to remove the signs and buttons and, with one exception, all complied. However, the union indicated to the school district that it disagreed with the direction given by the principals. When the district stood by its position, the union filed a grievance, alleging that the district had breached the teachers' right to freedom of expression under s.2(b) of the Charter. The union relied on the award of Arbitrator Donald Munroe in British Columbia Teachers' Federation v. British Columbia Public School Employers' Association, [2004] B.C.C.A.A.A. No. 82 (QL), upheld by the B.C. Court of Appeal, 2005 BCCA 393 (CanLII), reviewed in Lancaster's Education Employment Law, September/October, 2005, in which Munroe ruled that teachers had a constitutionally-protected right to discuss class size in parent-teacher interviews and to post politically-charged material criticizing the B.C. government's funding policies on school bulletin boards.

The school district conceded that the teachers' actions were protected by s.2(b) of the Charter, but maintained that its restrictions came within s.1, which allows "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

The Arbitration Award:

In an October 30, 2011 decision, reviewed in Lancaster's Education Employment Law, May 3, 2012, eAlert No. 50, Arbitrator Mark Thompson denied the union's grievance, ruling that the school board's policy was justifiable under s.1 of the Charter in order to protect students from political messaging while at school.

In making his decision, the arbitrator applied the s.1 analysis from R. v. Oakes, 1986 CanLII 46 (SCC), requiring that it be established that: i) the objective of the ban is "pressing and substantial" according to the values of a free and democratic society, so as to warrant overriding a constitutionally-protected freedom; ii) there is a "rational connection" between the means chosen to achieve the objective and the objective itself; iii) the means chosen "impair as little as possible" the Charter right or freedom in question; and iv) the effects of the restriction be proportional to its objectives.

Thompson ruled that one of the objectives identified by the employer, namely insulating students from political messages, was a pressing and substantial objective, given teachers' position of authority over their students and the fact that younger students especially are not able to properly assess the meaning of political messages in the classroom. Although accepting that parents rather than children were the intended audience for the messages, Thompson found that children were exposed to them and that it was their "vulnerability" that "should be given the most weight in this case." Finding none of the other objectives cited by the employer to be pressing and substantial, Thompson proceeded to determine that there was a rational connection between the school district's directive and the objective of insulating students from political messages in the classroom and that the measures adopted limited the teachers' expression minimally as they were confined to instances where the contested materials might be seen by students. Finally, Thompson held that the negative effects of the restrictions on teachers' communications were "modest" compared to the positive impact of protecting students from political messages. He reasoned that, while the teachers had intended to influence parents, given the locations of the materials, it was unlikely that many parents would see the materials compared to the number of students who would.

In determining that his decision was not inconsistent with previous arbitration awards, Thompson noted that the situation in the Munroe's BCTF award differed in that the political messages in that case involved the right of teachers to discuss issues such as class size during parent-teacher interviews and, thus, did not involve students.

Pursuant to a special provision in B.C.'s Labour Relations Code (s.100), which provides that "[o]n application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law," the union appealed the arbitrator's decision to the B.C. Court of Appeal.

The Court's Decision:

The British Columbia Court of Appeal unanimously allowed the union's appeal, ruling that the school district's directive was not a reasonable limit on the teachers' Charter-protected freedom of expression.

Applying a standard of review of correctness, given that the appeal involved the application of the Charter, Justice Risa Levine, writing for the Court, ruled that the Court's decision regarding Munroe's BCTF award, which she noted "presented remarkably similar facts and issues," was indistinguishable and binding, and that the arbitrator erred by misinterpreting and misapplying this decision in his analysis, reasoning:

While the reasons for judgment in [Munroe's BCTF award] focus in more detail on the impact of teachers using political materials in parent-teacher interviews, the question of whether the teachers could post those materials on bulletin boards where both parents and students could see them was squarely before the Court. [In her review of Munroe's BCTF award,] Madam Justice Huddart expressly dealt with that aspect of the case on the basis that as she could not infer any potential harm, it did not minimally impair the teachers' rights.

Moreover, Levine held that the arbitrator "misapplied" the tests of minimal impairment and proportionality in finding that, since "not many parents would have seen the materials in the locations the teachers posted or wore them, the school district's prohibition did not result in deleterious effects on the teachers," stating:

[The arbitrator] seems not to have considered that the effect of the school [district's] directive was to prohibit the teachers from expressing their political views in any location where students could be exposed to them. He did not consider, in the context of the minimal impairment test, whether there were other, less restrictive, means to limit the teachers' expression, and in considering proportionality, he failed to identify any evidence or particulars of harm to students that could result from seeing the material.

There was no evidence in this case of any actual or potential harm to students from being exposed to the materials about educational issues, nor any facts from which an inference of harm could be drawn. On the contrary, Canadian jurisprudence, including [Munroe's BCTF award], stands for the principle that open communication and debate about public, political issues is a hallmark of the free and democratic society the Charter is designed to protect. Children live in this diverse and multi-cultural society, and exposing them to diverse societal views and opinions is an important part of their educational experience….

Emphasizing that "[t]he law supports the exercise by teachers of their right of free expression in schools," Levine allowed the appeal, set aside the arbitrator's decision, and allowed the union's grievance.

Comment:

In her review of Munroe's BCTF award, B.C. Court of Appeal judge Carol Huddart, on behalf of the majority in that case, declared: "Teachers cannot be 'silent members of society' in light of the importance of a 'free and robust public discussion of public issues' to democratic society. … The school boards cannot prevent teachers from expressing opinions just because they step onto school grounds. School grounds are public property where political expression must be valued and given its place." She added: "Given the public nature of the debate over [the] issues, a complete prohibition on any discussion of class size and composition at parent-teacher interviews seems an overreaction, one with the potential to undermine teachers' dignity and professional status."

Accordingly, the Court in the instant decision confirms the broad protection generally afforded to political speech under the Charter, even within a school context. In particular, in the absence of any evidence of interference with the educational process, it rejects a distinction between communications aimed exclusively at parents and those that may, albeit inadvertently, reach students.