State agency: playing out-of-bounds

High court says state PDC directives aimed at curbing First Amendment rights have no legal authority

(From the January 2004 issue of WE)

The state Supreme Court has ruled that Public Disclosure Commission guidelines restricting school employees' free speech rights "have no legal or regulatory effect."

The WEA challenged the PDC's free speech restrictions in 2001. That year, the PDC issued new rules severely restricting political speech on school grounds. For example, the PDC said school employees couldn't discuss a school levy in the hallway after school, on their own time.

A King County Superior Court judge ruled the restrictions were unconstitutional and issued a temporary injunction barring the PDC from enforcing the guidelines.

The Supreme Court arrived at the same destination set out by WEA -- that the PDC restrictions were unenforceable -- but took a different route to get there. The Supreme Court decision overturned the injunction and failed to rule whether the restrictions violate the First Amendment. But the court did rule that the PDC guidelines have no legal or regulatory authority, which means the PDC cannot punish someone for not following them.

In doing so, the court adopted the agency's own claims that its guidelines were nothing more than the idle opinion of agency insiders, and "cannot be violated or enforced."

"The PDC contends among other things, that ... the guidelines are the agency's opinion only and cannot be violated or enforced ...," the court emphasized. "Conduct contrary to the agency's written opinion does not subject a person to penalty or administrative sanctions."

Because WEA sued to block the PDC restrictions from taking effect before the agency could attempt to sanction school employees, the court ruled there was no enforcement action to overturn at this time. As a result, it was too early for the lower courts -- which sided with WEA -- to rule on other underlying legal issues raised in the WEA lawsuit, the Supreme Court said.

"The WEA is seeking an advisory opinion on an abstract dispute over whether the PDC's opinion violates constitutional rights and/or the State's administrative law. We hold that the guidelines have no legal or regulatory effect."

In a sharply worded dissent, Justice Richard Sanders suggested the majority's ruling was an improper attempt to dodge deciding an issue that should have been fully aired.

"Through a crabbed analysis of justiciability the majority stifles the Washington Education Association's attempt to protect the constitutional rights of its members by improperly denying the WEA its day in court," Sanders wrote.

"The majority ... ignores the fact that the (PDC) guidelines have had a substantial regulatory effect by altering the actions of the WEA and its members. It also ignores case law holding that a controversy is justiciable where state action directly chills free speech, even in the absence of enforcement."

The WEA notes that teachers and other school employees have every right to discuss political issues on their own time. They do not surrender their free speech rights at school. They have the same First Amendment rights enjoyed by all Americans.

WEA members agree with the purpose of the state law meant to ensure that tax dollars do not pay for election campaigns and that political activity does not disrupt the educational process.

Read the full court opinion at The Washington Courts Web site.

Reach WEA Editor Linda Woo at lwoo@WashingtonEA.org, via postal mail at WEA, PO Box 9100, Federal Way, WA 98063-9100; phone 253-765-7027 (or toll-free outside Seattle-Tacoma: 800-622-3393 ext. 7027); or fax 253-946-7612. We welcome story ideas, letters to the editor and suggestions for improving WE-Washington Education, or WEA Online.