The opinion of the court was delivered by: ZAVATT
Both plaintiff and defendants have moved for summary judgment. The plaintiff's motion for summary judgment is granted; the defendants' cross-motion for summary judgment is denied.
Plaintiff, a teacher in defendant school district, is the President of the Bay Shore Classroom Teachers' Association (BSCTA), the duly certified exclusive bargaining agent of the school district's employees pursuant to Article 14 of the Civil Service Law of New York ("Taylor Law"), McKinney's Consol. Laws, c. 7. He sues on behalf of himself and all other teachers employed by defendant school district (the District). The District was organized as a union free school district pursuant to the Education Law of the State of New York. The defendant Howard is the Superintendent of Schools of the District; the defendant O'Donnell is the Assistant Superintendent of Schools.
The dispute in question concerns the constitutionality of section 11F-21 (11F-21) of "Administrative Manual" (Manual) of the District which provides as follows:
11F-21 Staff Solicitations and Distribution of Material to Staff Members: School Mailboxes and All Other School District Facilities Faculty mailboxes, as well as all other school building facilities, are the property of the School District and are maintained for the convenience of the School District in carrying out its duties and in the administration of its affairs. Distribution through such facilities shall be limited to items of official business of the Bay Shore School District only, e.g., official school notices and other distributions by the Superintendent's Office, (such as items of community or public interest and recognized charitable appeals) principals' or directors' notices, departmental announcements, etc., and routine internal distribution of any exclusive negotiating agent for school district employees recognized or certified pursuant to the provisions of the Public Employees' Fair Employment Act.
The distribution, posting, or display of all other literature, materials or notices shall be prohibited.
'Routine internal distributions' shall be defined as notices of meetings, elections, results of elections, and social events. The distribution of newsletters, position papers, materials of other organizations, or any other communications which do not concern themselves with the routine operation of an exclusive negotiating agent shall be prohibited.
The plaintiff claims that this section of the Manual is unconstitutional and void on its face and in its application to plaintiff in that it constitutes a deprivation of freedom of speech in violation of the First and Fourteenth Amendments. Plaintiff demands judgment:
(1) declaring section 11F-21 of the Manual void on its face;
(2) declaring that the application thereof (as hereinafter set forth) violates the plaintiff's First Amendment rights;
(3) enjoining the defendants from applying and enforcing said section;
(4) enjoining the defendants from preventing the plaintiff from distributing "The Voice," a BSCTA publication, and other literature on school property;
(5) awarding plaintiff costs and disbursements.
The defendants counter these assertions by claiming that the plaintiff must first submit this claim to arbitration; that the matter is one that should properly be negotiated between the parties; that said section is a reasonable exercise of the powers of the Board of Education under sections 1709 and 414 of the New York Education Law, McKinney's Consol. Laws, c. 16. These sections vest title to public school premises and control over its facilities in the Board of Education of the District. N.Y. Education Law § 1709(9).
On September 2, 1969 the BSCTA and the District concluded negotiations and signed a collective bargaining agreement, expiring July 1, 1970, defining the conditions and terms of employment of the teachers of the District. It appears that 11F-21 was discussed during the negotiations but that the teachers were unable to convince the Board to repeal it and were also unwilling to bargain for its repeal by dropping several other bargaining demands. The subject was dropped from the negotiations and 11F-21 remained part of the Manual which was incorporated by reference into the collective bargaining agreement. It is important to note the 11F-21 became part of the Manual on June 19, 1968, by unilateral action of the Board, well before the negotiations leading to the present contract between the parties. (Affidavit of defendant O'Donnell).
The teachers made good their promise to test the constitutionality of 11F-21 in the courts (Affidavit of Friedman) when they distributed copies of "The Voice" through faculty mailboxes and in other school areas, two days after the contract was signed, thus precipitating the present action.
On September 8, 1969, defendant O'Donnell sent a letter to Joan Best, Corresponding Secretary of the BSCTA, informing her that such distribution was in violation of ...