City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission

Burger, C. J. The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings at which public participation is permitted if such speech is addressed to the subject of pending collective-bargaining negotiations. The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collective-bargaining agreement during the calendar year of 1971. In January 1971 negotiations commenced for renewal of the agreement and MTI submitted a number of proposals. One among them called for the inclusion of a so-called "fair share" clause, which would require all teachers, whether members of MTI or not, to pay union dues to defray the costs of collective bargaining. Wisconsin law expressly permits the inclusion of "fair share" provisions in municipal employee collective-bargaining agreements. Another proposal presented by the union was a provision for binding arbitration of teacher dismissals. Both of these provisions were resisted by the school board. The negotiations deadlocked in November 1971 with a number of issues still unresolved, among them "fair share" and arbitration. During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit, but not members of the union, mailed a letter to all teachers in the district expressing opposition to the "fair share" proposal. Two hundred teachers replied, most commenting favorably on Holmquist and Reed's position. Thereupon a petition was drafted calling for a one-year delay in the implementation of "fair share" while the proposal was more closely analyzed by an impartial committee. The petition was circulated to teachers in the district on December 6, 1971. Holmquist and Reed intended to present the results of their petition effort to the school board and the MTI at the school board's public meeting that same evening. Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union's position. During a portion of the meeting devoted to the expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300-1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented "an informal committee of 72 teachers in 49 schools" and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the "fair share" clause. He then read the petition that had been circulated to the teachers in the district that morning and stated that in the 31 schools from which reports had been received, 53 percent of the teachers had already signed the petition. Holmquist stated that neither side had adequately addressed the issue of "fair share" and that teachers were confused about the meaning of the proposal. He concluded by saying: "Due to this confusion, we wish to take no stand on the proposal itself, but ask only that all alternatives be presented clearly to all teachers and more importantly to the general public to whom we are all responsible. We ask simply for communication, not confrontation." The sole response from the school board was a question by the president inquiring whether Holmquist intended to present the board with the petition. Holmquist answered that he would. Holmquist's presentation had lasted approximately 2 minutes. Later that evening, the board met in executive session and voted a proposal acceding to all of the union's demands with the exception of "fair share." During a negotiating session the following morning, MTI accepted the proposal and a contract was signed on December 14, 1971. In January 1972, MTI filed a complaint with the Wisconsin Employment Relations Commission (WERC) claiming that the board had committed a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting. MTI claimed that in so doing the board had engaged in negotiations with a member of the bargaining unit other than the exclusive collective-bargaining representative, in violation of Wis. Stat. Sections 111.70(3)(a)(1), (4) (1973). Following a hearing the Commission concluded that the board was guilty of the prohibited labor practice and ordered that it "immediately cease and desist from permitting employees, other than representatives of Madison Teachers Inc., to appear and speak at meetings of the Board of Education, on matters subject to collective bargaining between it and Madison Teachers, Inc." The Commission's action was affirmed by the Circuit Court of Dane County. The Supreme Court of Wisconsin affirmed. The court recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged in the face of "a clear and present danger that [the speech] will bring about the substantive evils that [the legislature] has a right to prevent." The court held that the abridgment of the speech, in this case, was justified in order "to avoid the dangers attendant upon relative chaos in labor-management relations." The Wisconsin court perceived "clear and present danger" based upon its conclusion that Holmquist's speech before the school board constituted "negotiation" with the board. Permitting such "negotiation," the court reasoned, would undermine the bargaining exclusivity guaranteed the majority union under Wis. Stat. Section 111.70(3)(a)(4) (1973). From that premise, it concluded that teachers' First Amendment rights could be limited. Assuming, arguendo, that such a "danger" might in some circumstances justify some limitation of First Amendment rights, we are unable to read this record as presenting such danger as would justify curtailing speech. The Wisconsin Supreme Court's conclusion that Holmquist's terse statement during the public meeting constituted negotiation with the board was based upon its adoption of the lower court's determination that, "[e]ven though Holmquist's statement superficially appears to be merely a 'position statement,' the court deems from the total circumstances that it constituted 'negotiating.'" This cryptic conclusion seems to ignore the ancient wisdom that calling a thing by a name does not make it so. Holmquist did not seek to bargain or offer to enter into any bargain with the board, nor does it appear that he was authorized by any other teachers to enter into any agreement on their behalf. Although his views were not consistent with those of MTI, communicating such views to the employer could not change the fact that MTI alone was authorized to negotiate and to enter into a contract with the board. Moreover, the school board meeting at which Holmquist was permitted to speak was open to the public. He addressed the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. We have held that teachers may not be "compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work." ... Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings. It is conceded that any citizen could have presented precisely the same points and provided the board with the same information as did Holmquist. Regardless of the extent to which true contract negotiations between a public body and its employees may be regulatedan issue we need not consider at this timethe participation in public discussion of public business cannot be confined to one category of interested individuals. To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech.... The WERC's order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from "permitting employees ... to appear and speak at meetings of the Board of Education" the order constitutes an indirect, but effective, prohibition on persons such as Holmquist from communicating with their government. The order would have a substantial impact upon virtually all communication between teachers and the school board. The order prohibits speech by teachers "on matters subject to collective bargaining." As the dissenting opinion below noted, however, there is virtually no subject concerning the operation of the school system that could not also be characterized as a potential subject of collective bargaining. Teachers not only constitute the overwhelming bulk of employees of the school system, but they are the very core of that system; restraining teachers' expressions to the board on matters involving the operation of the schools would seriously impair the board's ability to govern the district.... The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

QUESTIONS

Please explain why the Wisconsin Supreme Court reversed and remanded their decision to side with Holmquist and his first amendment right of free speech

Explain what the "fair share" proposal was and why it was a cause for concern for some teachers who were not members of the Madison Teachers Inc. (MTI) union.

Holmquist addressed the Board of Education even after MTI's John Matthews failed to prevent him from speaking openly about his opinon. Do you think Holmquist was speaking as a citizen who was concerned about school teachers? Or as a teacher and employee who was not represented by the teachers union?