Supreme Court of California Justia
Citation 46 Cal. 4th 822, 209 P.3d 73, 95 Cal. Rptr. 3d 164

San Leandro Teachers Assn. v. Governing Bd.

Filed 6/18/09

IN THE SUPREME COURT OF CALIFORNIA

SAN LEANDRO TEACHERS
ASSOCIATION et al.,
Plaintiffs and Respondents,
S156961
v.
Ct.App. 1/1 A114679 & A115686
GOVERNING BOARD OF THE SAN
LEANDRO UNIFIED SCHOOL
DISTRICT et al.,
Alameda County
Defendants and Appellants.
Super. Ct. No. RG05235795

Shortly before an election, an employee organization that represents school
teachers, and which regularly communicates with its members through school
mailboxes, sought to distribute literature through these mailboxes that included
endorsements of certain school board candidates. The school district
administration refused to permit such political communication and the employee
organization sought a writ of mandate to have that policy overturned. In order to
resolve whether a writ should properly issue in this case, we must construe the
meaning of Education Code section 7054, subdivision (a), which prohibits the use
of ―school district . . . funds, services, supplies or equipment‖ for urging the
support or defeat of political candidates or ballot propositions. The trial court
sided with the employee organization but the Court of Appeal reversed, upholding
the school district‘s policy as within the scope of section 7054. It also determined
1


that the policy did not violate Government Code section 3543.1, subdivision (b),
which gives school employee organizations the right to use internal mailboxes
subject to ―reasonable regulation,‖ concluding that the school district‘s policy was
a reasonable regulation. The Court of Appeal also held that the policy did not
violate the United States or California Constitutions.
We conclude that the Court of Appeal is correct and therefore affirm its
judgment denying the employee organization‘s request for a writ of mandate.
I.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
The essential facts underlying this case are not in dispute. The San Leandro
Teachers Association (SLTA) is the exclusive bargaining representative of the San
Leandro Unified School District‘s (District) certificated employees. Each
certificated employee is assigned a mailbox. The normal intended purpose of the
school mailboxes is to communicate with teachers and staff regarding school-
related matters. As a representative employee organization, SLTA is authorized to
use the mailboxes to communicate with its employee members pursuant to
Government Code section 3543.1, subdivision (b), a part of the Educational
Employment Relations Act (EERA, Gov. Code, § 3540 et seq.) and the collective
bargaining agreement. Nonschool organizations do not have direct access to these
mailboxes and may not access them without the District‘s prior approval. The
mailboxes are permanent fixtures at each school, consisting of a wooden or metal
frame grid that is fixed to the wall in school offices.
On October 11 and 12, 2004, SLTA distributed two employee newsletters
by placing them in internal faculty mailboxes located at the District‘s schools.
The first newsletter, entitled ―SLATE,‖ was a two-page memorandum from
SLTA‘s president. In addition to discussing health benefits and a recently filed
unfair labor practice charge regarding unilateral staff reduction, the memorandum
2
included a paragraph about the upcoming school board election. The paragraph
mentioned by name two SLTA-endorsed school board candidates and referred to
the success of SLTA volunteer efforts and of a ―Meet the Candidate‖ night; it also
urged more volunteer effort. Another paragraph in the same memorandum
described SLTA‘s political efforts in more general terms.
The second newsletter is a one-page memorandum addressed to SLTA‘s
members, entitled ―From the Table.‖ In addition to discussing salary and benefits,
negotiation of procedures for evaluating employees, and other matters, the
memorandum states: ―Support your Bargaining Team‘s efforts to improve your
salaries and working conditions. Please volunteer to phone or walk in support of
our endorsed School Board Candidates. Our next bargaining date is October 29.‖
Both newsletters were produced entirely at SLTA expense and were placed in the
mailboxes by SLTA volunteers during their nonwork hours.
On October 15, 2004, Assistant Superintendent Martinez sent a letter to the
president of SLTA advising him that the union was prohibited by Education Code
section 7054 from using school district mail facilities to distribute materials that
contain political endorsements. Because of that statutory prohibition, ―we will not
allow the SLTA access to faculty mailboxes if any future distributions contain
impermissible political endorsements.‖
On November 16, 2004, SLTA filed an unfair practice charge with the
Public Employee Relations Board (PERB), alleging that the District violated
provisions of the EERA by prohibiting SLTA from using the school mailboxes to
distribute union newsletters containing its political endorsements. On June 28,
2005, PERB adopted an earlier decision of one of its agents, dismissing the unfair
practice charge. The agent had determined that ―the plain meaning of [Education
Code section 7054] prohibited the use of mailboxes as a means of distributing
3
political information.‖ The agency also relied on one of its own earlier decisions,
which held that a school‘s internal mail system amounted to ―services‖ or
―equipment‖ within the meaning of Education Code section 7054.
On September 30, 2005, SLTA filed a petition for peremptory writ of
mandate to cause appellants to ―cease and desist from enforcing a policy which
forbids [respondents] from placing in the school mailboxes any materials
generated by the [SLTA] which contain references to candidates for public office
or ballot initiatives.‖ The District demurred to the writ petition, asserting that
prohibiting the distribution of partisan political material via the mailboxes is both
constitutional and mandated by Education Code section 7054.
On May 3, 2006, the trial court granted the writ petition and overruled
appellants‘ demurrer. Subsequently, the court awarded respondents their attorney
fees under Code of Civil Procedure section 1021.5. For reasons discussed at
length below, the Court of Appeal reversed, concluding both that Education Code
section 7054 compelled the District‘s policy and that the statute and policy were
not unconstitutional. We granted review.
II.
DISCUSSION
A. The Statutory Question
We begin by examining the statute in dispute. Education Code section
70541 is part of the statutory scheme regulating the political activities of school
districts and employees. It provides: ―(a) No school district or community college
district funds, services, supplies, or equipment shall be used for the purpose of
urging the support or defeat of any ballot measure or candidate, including, but not
limited to, any candidate for election to the governing board of the district; [¶]

1
All statutory references are to this code unless otherwise indicated.
4


(b) Nothing in this section shall prohibit the use of any of the public resources
described in subdivision (a) to provide information to the public about the possible
effects of any bond issue or other ballot measure if both of the following
conditions are met: [¶] (1) The informational activities are otherwise authorized
by the Constitution or laws of this state. [¶] (2) The information provided
constitutes a fair and impartial presentation of relevant facts to aid the electorate in
reaching an informed judgment regarding the bond issue or ballot measure. [¶]
(c) A violation of this section shall be a misdemeanor or felony punishable by
imprisonment in the county jail not exceeding one year or by a fine not exceeding
one thousand dollars ($1,000), or by both, or imprisonment in a state prison for 16
months, or two or three years.‖
― ‗When construing a statute, we must ―ascertain the intent of the
Legislature so as to effectuate the purpose of the law.‖ ‘ [Citation.] ‗In
determining such intent, a court must look first to the words of the statute
themselves, giving to the language its usual, ordinary import and according
significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose.‘ [Citation.] At the same time, ‗we do not consider . . .
statutory language in isolation.‘ [Citation.] Instead, we ‗examine the entire
substance of the statute in order to determine the scope and purpose of the
provision, construing its words in context and harmonizing its various parts.‘
[Citation.] Moreover, we ‗ ―read every statute ‗with reference to the entire scheme
of law of which it is part so that the whole may be harmonized and retain
effectiveness.‘ ‖ ‘ ‖ (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004)
32 Cal.4th 1029, 1043.)
In construing the statutory language, we first note that section 7054 cannot
be construed to ban the use of all public resources for political purposes.
5
Subdivision (a) of section 7054 bans the use of ―funds, services, supplies, or
equipment‖ for certain political purposes, whereas subdivision (b) states that
―[n]othing in this section shall prohibit the use of any of the public resources
described in subdivision (a) to provide information to the public about the possible
effects of any bond issue or other ballot measure if both of the following
conditions are met.‖ The italicized language of subdivision (b) therefore makes
clear that the public resources described in subdivision (a) are a subset of all
public resources.
The parties argue about whether a school mailbox constitutes ―services‖
within the meaning of section 7054. The District contends, and the Court of
Appeal found, that mailboxes provide a service to those who use them, and that
otherwise SLTA would have to use the more costly United States mail or some
other means to deliver its message. SLTA argues in effect that the term ―services‖
generally connotes useful activity performed by a human agency, i.e. that while
distribution of mail is a service, the mailboxes themselves do not constitute a
service. Thus, because the literature in question was distributed by SLTA, no
public ―service‖ was used. The dictionary definition of ―service‖ does give some
support to SLTA‘s position. That word has been most relevantly defined as: ―1 a:
the occupation or function of serving <in active [service] > b: employment as a
servant <entered his [service] >2 a: the work performed by one that serves <gives
good [service]> b: HELP, USE, BENEFIT <be of [service] to them> c:
contribution to the welfare of others d: disposal for use <put the capability of the
entire system at your service> . . . . 4: the act of serving: as a: a helpful act <did
him a [service]> b: useful labor that does not produce a tangible commodity —
usually used in plural <charge for professional [service]s>.‖ (Webster‘s 9th New
Collegiate Dict. (1987), 1076.)
6
Similarly, the parties disagree about whether a school mailbox constitutes
―equipment.‖ The District, like the Court of Appeal, construes the word broadly,
and contends in essence that such mailboxes are self-evidently ―equipment.‖ As
the Court of Appeal stated: ―We . . . believe that the mailboxes themselves
constitute school district ‗equipment‘ in that they are tangible, specially
constructed receptacles that, while not unduly expensive, are created and
maintained solely by the district. And unlike tables, which can serve many
functions, mailboxes are solely dedicated to the task of distributing information to
individual recipients.‖ SLTA argues the contrary. In the words of amicus curiae
California School Board Association: ― ‗[E]quipment‘ connotes an object that is
handled, used or operated, such as a copying machine or a printer: a mailbox does
not fit within this category.‖ Moreover, SLTA and its amici argue that unlike a
copying machine or printer and other common examples of equipment, which
generate costs in terms of depreciation and the utilization of supplies, the use of
the mailbox is virtually without cost, and therefore not within the purview of the
statute primarily concerned with the expenditure of public funds for political
campaigns. They further point to the District‘s apparent concession that a table in
a faculty lounge, for example, on which the union‘s political literature rested, was
not ―equipment‖ within the meaning of section 7054.2

2
Neither side cites the dictionary definitions of ―equipment,‖ and these are
not particularly helpful in deciding the question. The dictionary assigns the word
several meanings, most pertinently, ―1. a: the set of articles or physical resources
serving to equip a person or thing: as (1): the implements used in an operation or
activity: APPARATUS (2): all the fixed assets other than land and buildings of a
business enterprise . . . b: a piece of such equipment.‖ (Webster‘s 9th New
Collegiate Dict., supra, p. 421.) From the broadest definition above, staff
mailboxes might be considered ―equipment‖ because they could be considered
―fixed assets other than land and buildings.‖ On the other hand, ―[f]ixed assets‖
(footnote continued on next page)
7


Because neither side makes a compelling case for its construction of section
7054 based on the language of the statute alone, we may consider various extrinsic
aids, including legislative history and an examination of the objectives to be
achieved, in order to discern legislative intent. (Day v. City of Fontana (2001) 25
Cal.4th 268, 272.) The statute was initially enacted in 1977, and the parties agree
that it was a legislative response to Stanson v. Mott (1976) 17 Cal.3d 206
(Stanson), which held that government agencies could not use public funds to
campaign for ballot propositions or candidates, at least not without explicit
legislative authorization. As we stated in Stanson, ―the use of the public treasury
to mount an election campaign which attempts to influence the resolution of issues
which our Constitution leave[s] to the ‗free election‘ of the people (see Cal.
Const., art. II, § 2) . . . present[s] a serious threat to the integrity of the electoral
process.‖ (Stanson, supra, 17 Cal.3d at p. 218),
As we further explained in Stanson: ―Underlying this uniform judicial
reluctance to sanction the use of public funds for election campaigns rests an
implicit recognition that such expenditures raise potentially serious constitutional
(footnote continued from previous page)
have been defined as ―[t]he tangible, long-lived assets of the business including
land, buildings, furniture, fixtures, and equipment.‖ (Pollard et al., Principles of
Accounting (2007) G-6.) Thus, defined broadly ―fixed assets‖ other than land and
buildings include ―furniture‖ and ―fixtures,‖ and therefore under that broad
definition, ―fixtures‖ and ―furniture‖ would be considered ―equipment.‖ But as
the above definition of ―fixed assets‖ illustrates, ―furniture‖ and ―fixtures‖ are
commonly thought of as distinct from ―equipment‖ and therefore the three terms
are listed in the conjunctive. It is thus not entirely clear from the statutory
language of section 7054 whether school mailboxes are ―fixtures‖ rather than
equipment in the sense that they are attached to a building (see Black‘s Law Dict.
(5th ed. 1979) p. 574) or whether ―equipment‖ was intended broadly to include
such fixtures.
8
questions. A fundamental precept of this nation‘s democratic electoral process is
that the government may not ‗take sides‘ in election contests or bestow an unfair
advantage on one of several competing factions. A principal danger feared by our
country‘s founders lay in the possibility that the holders of governmental authority
would use official power improperly to perpetuate themselves, or their allies, in
office (see, e.g., Madison, The Federalist Papers, Nos. 52, 53; 10 Richardson,
Messages and Papers of the Presidents (1899) pp. 98-99 (President Jefferson)); the
selective use of public funds in election campaigns, of course, raises the specter of
just such an improper distortion of the democratic electoral process.‖ (Stanson,
supra, 17 Cal.3d at p. 217.)
As originally enacted in 1977, section 7054 sought to limit the scope of the
Stanson decision. It stated: ―Except as provided in Sections 7056, 35174 and
72632, no school district or community college district funds, services, supplies,
or equipment shall be used for the purpose of urging the passage or defeat of any
school measure of the district, including, but not limited to, the candidacy of any
person for election to the governing board of the district.‖ (Stats. 1977, ch. 36,
§ 396.5.) Former section 35174, however, created a large loophole: It provided in
pertinent part: ―The governing board of any school district or any member of the
governing board of a school district may prepare or disseminate information or
may make public or private appearances or statements for the purpose of urging
the passage or defeat of any school measure of the district.‖ (Stats. 1976, ch.
1010, § 2.)
In 1995 section 7054 was amended in conjunction with the repeal of former
section 35174, and more expressly incorporated the principles set forth in Stanson.
Section 1 of the new statute stated in part: ―(a) The Legislature hereby finds and
declares that, in a democratic society, the use of public funds in election
9
campaigns is unjustified and inappropriate. No public entity should presume to
use money derived from the whole of taxpayers to support or oppose ballot
measures or candidates. [¶] (b) However, it is not the intent of the Legislature, in
enacting this act, to restrict the political activities of officers or employees of a
school district or community college district except as provided in Article 2
(commencing with Section 7050) of Chapter 1 of Part 5 of the Education Code or
as may be necessary to meet specified requirements of federal law. . . . The right
of speech of any member of a governing board of a school district or community
college district or any employee thereof is in no manner affected by this act.‖ (Id.,
§ 1, p. 6695.)
Legislative committee analysis made clear the purpose of the amended
statute: ―Proponents argue that in general, public funds or resources may not be
used for political purposes. Members of the Legislature, for instance, are
prohibited from using legislative funds, resources or personnel time for political
purposes, including partisan political activity and advocacy of, or opposition to,
ballot measures. Local government officials are bound by similar prohibitions.
Members of school and community college district governing boards, however,
have been exempted from this general rule since 1977. Education Code section
35174, enacted in 1976, authorizes the use of public resources and employee time
for the purpose of urging the support or defeat of school board candidates, school
bond measures and any other school ballot measure. This constitutes an
inappropriate use of public funds. Taxpayers‘ money should not be used for
political purposes, whether in state, county, city, special district or school district
elections. [¶] Proponents note that members of school and community college
district governing boards have a legitimate role in addressing the public about
bond measures and other related issues. This bill does not in any way abridge
10
their constitutional right to continue to speak about these issues. Nor does it
prevent them from raising money for political purposes or advocating on behalf of
ballot measures or individual candidates. The bill does, however, repeal the
authorization for school board members to use for political purposes district
telephones, copying machines, equipment, employees, and materials produced
with taxpayer monies.‖ (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis
of Sen. Bill No. 82 (Reg. Sess. 1995-1996) as amended Aug. 31, 1995, pp. 5-6.)
Two aspects of the above legislative history are noteworthy. First, it refers
to ―materials produced with taxpayer monies,‖ which school mailboxes clearly
are. Second, and more significantly, as the legislative history of section 7054
makes clear, it was designed to avoid the use of public resources to perpetuate an
incumbent candidate or his or her chosen successor, or to promote self-serving
ballot initiatives, thereby compromising the integrity of the electoral process. The
District contends that permitting employee organizations to use the mailboxes to
endorse school board candidates will unfairly advantage those organizations and
the candidates they endorse, because it allows them, but not other candidates and
organizations, to use the mailboxes to communicate with teachers about these
endorsements. We agree that this special access to an internal channel of
communication to influence elections is a potential abuse that section 7054, and
the Stanson decision, were designed to guard against. (See also Vargas v. City of
Salinas (2009) 46 Cal.4th 1 [reaffirming Stanson‘s basic principles].) Therefore
we conclude, consistent with the purpose of section 7054, that the broad term
―equipment‖ was intended to encompass mailboxes specially constructed at
taxpayer expense to serve as a school‘s internal communication channel, which
one group may not use to its exclusive political advantage. We agree with the
Court of Appeal that, unlike school furniture, for example, which may be
11
incidentally used for a host of different purposes, the term ―equipment‖ is
plausibly applied to fixtures dedicated to a specific use.
SLTA, in arguing that section 7054 is not implicated, cites an Attorney
General opinion construing section 7054, found at 84 Ops.Cal.Atty.Gen. 52
(2001). There, the Attorney General addressed the question of whether section
7054 prohibited a school district from making employee payroll deductions for a
political action committee established by a representative employee organization.
The Attorney General‘s opinion interpreted section 7054 not to apply when a
school district merely transfers nonpublic money from employees to a
nongovernmental organization like a political action committee. (84
Ops.Cal.Atty.Gen., supra, at pp. 53-54.) As the District points out, the Attorney
General‘s opinion has been critiqued by PERB for neglecting the fact that section
7054 is not only concerned with public funds but also with services, and for failing
to come to terms with the fact that payroll deductions are a service. (American
Federation of Teachers Guild v. San Diego Community College Dist. (2001)
PERB Dec. No. 1467 [26 PERC ¶33014].)3 In any case, there is no basis in the
language of section 7054 for concluding it applies to school districts but not
employee organizations. Indeed, SLTA appears to concede in its briefing that, had
it used school copying machines or printers to produce its political literature, or
used on-duty school personnel to distribute that literature, it would have run afoul
of that statute.

3
We express no opinion as to whether the Attorney General‘s opinion
discussed above was correct in its result. We note that the issue requires not only
an analysis of the scope of section 7054, but also of those statutes that authorize
government employee payroll deductions for union dues and other services. (See,
e.g., Gov. Code, §§ 1157.1, 1157.3)
12


Nor is a construction of section 7054 to ban placing candidate
endorsements in school mailboxes inconsistent with Government Code section
3543.1, subdivision (b). That statute states: ―Employee organizations shall have
the right of access at reasonable times to areas in which employees work, the right
to use institutional bulletin boards, mailboxes, and other means of communication,
subject to reasonable regulation, and the right to use institutional facilities at
reasonable times for the purpose of meetings concerned with the exercise of the
rights guaranteed by this chapter.‖ (Italics added.)
The term ―reasonable regulation‖ is not defined. In reference to an almost
identically worded provision of the Higher Education Employer-Employee
Relations Act (Gov. Code, §§ 3560-3599) ― Government Code section 3568 ―
one court has stated: ―To assess the reasonableness of a particular regulation, the
Board must balance, in light of applicable public policies, the benefits conferred
by the regulation and the burdens it imposes.‖ (Regents of the University of
California v. Public Employment Relations Bd. (1990) 220 Cal.App.3d 346, 361.)
Thus, the inquiry into reasonableness is necessarily contextual. On the one hand, a
school district is given the discretion to regulate mailbox access so that it does not
interfere with the district‘s legitimate interests. On the other hand, since the
statute speaks of a ―right of access‖ by employee organizations to mailboxes, the
regulations in question should not unreasonably interfere with such access.
―When two statutes touch upon a common subject, they are to be construed
in reference to each other, so as to ‗harmonize the two in such a way that no part
of either becomes surplusage.‘ [Citations.] Two codes ‗ ―must be read together
and so construed as to give effect, when possible, to all the provisions thereof.‖ ‘ ‖
(DeVita v. County of Napa (1995) 9 Cal.4th 763, 778-779.) In the present case,
there seems little question that a regulation that bans candidate endorsements
13
pursuant to section 7054 to preserve the integrity of the electoral process is a
reasonable regulation pursuing a legitimate statutory objective. Moreover, such a
regulation would not unduly limit a union‘s statutory right of access. Government
Code section 3543.2 defines the scope of union representation as limited to
―matters relating to wages, hours of employment and other terms and conditions of
employment.‖ As we have recognized, school districts are not compelled to
bargain about, nor are school employees compelled to contribute to, matters or
activities outside the scope of union representation. (See Cumero v. Public
Employment Relations Bd. (1989) 49 Cal.3d 575, 593-594.) That is not to say that
public employee unions do not have an important political dimension, given that
they are governed by and negotiate with government entities. (See Abood v.
Detroit Board of Education (1977) 431 U.S. 209, 228.) Here, however, the SLTA
still has numerous alternative channels with which to communicate its views to its
members. The regulation of school mailboxes to disallow candidate endorsements
and to counter the advantage that those with special access to those mailboxes may
possess would not interfere with a teachers‘ union‘s core mission of advocating for
its members.
We therefore hold that the District‘s regulation in the present case is lawful.
We emphasize the narrowness of the holding. We do not hold that school districts
are compelled to exclude candidate endorsements from school mailboxes. Indeed,
section 7058, part of the same article as section 7054, states: ―Nothing in this
article shall prohibit the use of a forum under the control of the governing board of
a school district or community college district if the forum is made available to all
sides on an equitable basis.‖ (Italics added.) A school mailbox is a forum of
communication, albeit, as discussed in the next part of this opinion, a nonpublic
one, that is within the control of the school district. Section 7058 makes clear that
14
section 7054 does not prohibit a school board from opening up mailboxes to
political endorsement literature, as long as this is done ―on an equitable basis.‖
Furthermore, our holding does not extend to union literature in school
mailboxes that does not ―urg[e] the support or defeat of any . . . candidate‖ within
the meaning of section 7054, but merely urges members to become involved in
upcoming elections and informs them how to do so, or engages in public policy
discussion in more general terms.4 We note that a school district‘s ability to
control the political communication of its employees is limited by section 7052,
part of the same article as section 7054, which states: ―Except as otherwise
provided in this article, or as necessary to meet requirements of federal law as it
pertains to a particular employee or employees, no restriction shall be placed on
the political activities of any officer or employee of a local agency.‖5 We hold
only that a rule prohibiting candidate endorsement literature in school mailboxes is
a ―reasonable regulation‖ within the meaning of Government Code section 3543.1,
subdivision (b) because it enforces the directive of section 7054.

4
Nor do we consider literature in mailboxes that endorses ballot propositions
rather than candidates, an issue not before us. We note that Education Code
section 7056, subdivision (b), a part of the same article as section 7054, provides
in pertinent part: ―Nothing in this section shall be construed to prohibit any
recognized employee organization or its officers, agents, and representatives from
soliciting or receiving political funds or contributions from employee members to
promote the support or defeat of any ballot measure on school district property or
community college district property during nonworking time.‖ How that statute‘s
authorization of union campaigning with its members on school property for or
against ballot propositions is to be read in conjunction with section 7054 is a
question we need not and do not address.
5
Of course, union literature on whatever topic remains subject to reasonable
regulation pursuant to Government Code section 3543.1, subdivision (b),
including regulations reasonably limiting the quantity of material that can be
placed in mailboxes.
15


B. The Constitutional Question
The constitutional issue, as framed by SLTA in its petition for review, is as
follows: ―Does the guarantee of liberty of speech in Article I, section 2 of the
California Constitution assure that an employee organization may distribute its
messages to its members concerning electoral politics by school mailboxes free
from school district censorship?‖ Another way of phrasing the above question is
this: Does the District‘s regulation prohibiting employee organizations from
placing candidate endorsement literature in school mailboxes violate the
California Constitution?
The above question indicates that SLTA is not relying on the First
Amendment to the United States Constitution, and implies that SLTA‘s claim
would fail under First Amendment doctrine as articulated by the United States
Supreme Court. That implication indeed appears to be correct. Below we will
first discuss how this case would be analyzed under federal First Amendment
jurisprudence, and then address SLTA‘s arguments that we should adopt a
different and more favorable analysis under California‘s liberty of speech clause.
Because the Court of Appeal set forth the proper First Amendment analysis, based
on public forum doctrine, we incorporate their discussion below.
1. Analysis Under the First Amendment6
As the scope of permissible regulations of speech varies depending on the
nature of the forum, it is essential to determine which forum applies to this case.
As [[we have]] noted, ―For purposes of [a] forum analysis the high court has

6
Except for the final paragraph, the following section of this opinion (Part
II.B.1.) is quoted from the Court of Appeal opinion, with double brackets
indicating our additions. (See Arriaga v. County of Alameda (1995) 9 Cal.4th
1055, 1059.)
16


divided all public property into three categories. The first is the traditional public
forum—i.e., a place that by long tradition has been used by the public at large for
the free exchange of ideas.‖ (Clark v. Burleigh (1992) 4 Cal.4th 474, 482.) Public
streets and parks are prototypical public forums. (Id. at p. 482.)
Regulations restricting speech in public forums must satisfy exacting tests
in order to pass constitutional muster: ―In these quintessential public forums, the
government may not prohibit all communicative activity. For the State to enforce
a content-based exclusion it must show that its regulation is necessary to serve a
compelling state interest and that it is narrowly drawn to achieve that end.
[Citation.] The State may also enforce regulations of the time, place, and manner
of expression which are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample alternative channels of
communication.‖ (Perry Ed. Assn. v. Perry Local Educators’ Assn. [(1983)] 460
U.S. 37, 45.)
―The second category of public property is the designated public forum,
whether of a limited or unlimited character — property that the [[S]]tate has
opened for expressive activity by part or all of the public.‖7 (International Soc.
for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 678.) ―The
Constitution forbids a State to enforce certain exclusions from a forum generally
open to the public even if it was not required to create the forum in the first place.
[Citations.] Although a State is not required to indefinitely retain the open
character of the facility, as long as it does so it is bound by the same standards as
apply in a traditional public forum. Reasonable time, place, and manner

7
[[This court has]] observed, ―there are few examples of designated public
forums in Supreme Court jurisprudence because the court has rarely . . . placed
any property in this category.‖ (Clark v. Burleigh, supra, 4 Cal.4th at p. 483.)
17


regulations are permissible, and a content-based prohibition must be narrowly
drawn to effectuate a compelling state interest.‖ (Perry Ed. Assn. v. Perry Local
Educators’ Assn., supra, 460 U.S. 37, 45-46, fn. omitted.) Thus, regulations of
expression in the context of a designated public forum must satisfy the same
standards as those that apply in the context of a public forum.
― ‗Finally, there is all remaining public property [citation], a category
usually referred to as the ‗nonpublic forum.‘ ‗Limitations on expressive activity
conducted on this last category of property must survive only a much more limited
review. The challenged regulation need only be reasonable, as long as the
regulation is not an effort to suppress the speaker‘s activity due to disagreement
with the speaker‘s view.‘ [Citation.]‖ (Clark v. Burleigh, supra, 4 Cal.4th 474,
483, fn. omitted.)
As the United States Supreme Court has explained: ―Public property which
is not by tradition or designation a forum for public communication is governed by
different standards. We have recognized that the ‗First Amendment does not
guarantee access to property simply because it is owned or controlled by the
government.‘ [Citation.] In addition to time, place, and manner regulations, the
State may reserve the forum for its intended purposes, communicative or
otherwise, as long as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the speaker‘s view.
[Citation.] As we have stated on several occasions, ‗ ― ‗[t]he State, no less than a
private owner of property, has power to preserve the property under its control for
the use to which it is lawfully dedicated.‘ ‖ ‘ [Citations.]‖ (Perry Ed. Assn. v.
Perry Local Educators’ Assn., supra, 460 U.S. 37, 46.)
18

[[We have]] observed: ―To apply the public forum doctrine a court
proceeds in a series of steps. In step one the court defines the ‗forum‘ by deciding
whether the forum is the entire property to which access is sought or only a
portion of that property. In step two the court decides whether the forum thus
defined is a traditional ‗public forum,‘ a ‗designated public forum,‘ or a
‗nonpublic forum.‘ If it is either of the first two kinds of forums, in step three the
court decides whether the challenged law restricts the content of speech in that
forum or only its time, place, or manner. And in step four the court tests the
challenged law by the standard that governs both the class of forum it has selected
in step two and, if relevant, the type of speech restriction it has identified in step
three.‖ (Clark v. Burleigh, supra, 4 Cal.4th 474, 484.)
Proceeding with step one, both sides agree that the forum is the internal
school district mailboxes. As to step two, both sides agree that this forum is not a
―traditional‖ public forum. They disagree, however, as to whether the forum is a
―designated/limited public forum‖ or a ―nonpublic forum.‖ Relying on Perry,
[[the District]] argue[[s]] that the mailboxes are a nonpublic forum.
The issue in Perry was whether it was constitutional for the school district
to limit access to the school mailboxes to the union that represented district
employees, thus denying access to a rival union that had previously been allowed
to use the mailboxes. (Perry Ed. Assn. v. Perry Local Educators’ Assn., supra,
460 U.S. 37, 39.) As the court stated: ―The primary question presented is whether
the First Amendment, applicable to the States by virtue of the Fourteenth
Amendment, is violated when a union that has been elected by public school
teachers as their exclusive bargaining representative is granted access to certain
means of communication, while such access is denied to a rival union.‖ (Perry,
supra, at p. 44.) The high court disagreed with the rival union‘s position that ―the
19
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, and [the union‘s] own unrestricted access to the system prior to
[the rival union‘s] certification as exclusive representative.‖ (Id. at p. 47.) The
court concluded that teacher mailboxes in a school district‘s interschool mail
system were not a public forum, and that the district could therefore validly
prevent unions other than the teachers‘ exclusive bargaining representative from
using the system. (Id. at p. 46.)
In the present case, the trial court found that the District‘s mailboxes are a
forum ―that has been opened to SLTA by statute, by the terms of the collective
bargaining agreement,[8] and by the conduct of the District. Thus as to this
designated group, any restrictions by the District are subject to strict scrutiny.‖
The trial court found that Perry did not apply, observing that the court in Perry
itself had noted that ―The very concept of the labor-management relationship
requires that the representative union be free to express its independent view on
matters within the scope of its representational duties.‖ (Perry Ed. Assn. v. Perry
Local Educators’ Assn., supra, 460 U.S. 37, 51, fn. 10.) The court thus limited
Perry to its holding that the school district was justified in excluding the rival
union from using the mailboxes while allowing the representative union such
access.
We first observe that ― ‗[t]he government does not create a public forum by
inaction or by permitting limited discourse, but only by intentionally opening a

8
The collective bargaining agreement provides, in part: ―The Association
shall have the right to post notices of Association business. The Association may
use teacher mailboxes and communications for lawful communications to
teachers. Such postings or items for school mailboxes must contain the date of
posting or distribution and the identification of the Association.‖
20


nontraditional forum for public discourse.‘ [Citation.]‖ (Hazelwood School
District v. Kuhlmeier [[(1988)]] 484 U.S. 260, 267.) In the present case, we do not
believe that the Legislature or the District has created a designated public forum in
the District‘s mailboxes. This is not a case where ―by policy or by practice‖ the
District has ―opened its mail system for indiscriminate use by the general public,‖
in which case one could ―justifiably argue a public forum has been created.‖
(Perry Ed. Assn. v. Perry Local Educators’ Assn., supra, 460 U.S. 37, 47.) It is
undisputed that the District only grants selective access to the mailboxes to outside
interests. Moreover, the access granted by statute to SLTA is indistinguishable
from the access accorded to the prevailing union in Perry.
[[SLTA]] reiterates the trial court‘s rationale that Perry involved the issue
of access to the forum based on speaker identity, rather than the content of the
speaker‘s message. However, the court in Perry specifically stated that ―Implicit
in the concept of the nonpublic forum is the right to make distinctions in access on
the basis of subject matter and speaker identity.‖ (Perry Ed. Assn. v. Perry Local
Educators’ Assn., supra, 460 U.S. 37, 49, italics added.) [[This court]] relied, in
part, on Perry in holding that it was constitutional for the Legislature to limit the
statements of candidates for office that are placed in voter pamphlets to a brief
factual statement of the candidate‘s own background and qualifications. (Clark v.
Burleigh, supra, 4 Cal.4th 474, 494–495.) Thus, we read Perry to apply to
restrictions based on content as well as speaker identity.
[[Thus, under established First Amendment public forum doctrine, school
mailboxes would be considered nonpublic forums. Although Government Code
section 3543.1, subdivision (b) permits limited access by a recognized employee
organization, as noted ― ‘[t]he government does not create a public forum by
inaction or by permitting limited discourse, but only by intentionally opening a
21
nontraditional forum for public discourse.‘ [Citation.]‖ (Hazelwood School
District v. Kuhlmeier, supra, 484 U.S. at p. 267.) Here, Government Code section
3543.1 was not designed to open up school mailboxes to the general public and
create a public forum, but to allow access by a single group with which the
school‘s employees were affiliated. Therefore, the mailboxes are nonpublic
forums and school districts would be able to impose viewpoint-neutral subject
matter regulations on the content of what is placed in those mailboxes. (Clark v.
Burleigh, supra, 4 Cal.4th 474, 483.) The prohibition of candidate endorsement
literature is such a viewpoint-neutral regulation.]]
2. Analysis Under the State Constitution
The thrust of SLTA‘s position is that under the liberty of speech clause of
the California Constitution (art. I, § 2, subd. (a)), a different analysis more
protective of employee organizations‘ right of free expression is required — as
explained below, either a balancing test or a ―basic incompatibility‖ test. SLTA‘s
starting point is the distinctive language of our constitutional provision: ―Every
person may freely speak, write and publish his or her sentiments on all subjects,
being responsible for the abuse of this right. A law may not restrain or abridge
liberty of speech or press.‖ (Cal. Const., art. I, § 2, subd. (a).) It is often stated
that the California liberty of speech clause is broader and more protective than the
free speech clause of the First Amendment. (See, e.g., Los Angeles Alliance for
Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 366-367, and cases cited
therein.) The liberty of speech clause has been interpreted more broadly than the
First Amendment in several areas, including recognizing privately owned
shopping centers as public forums subject to free speech protections (Fashion
Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 862-
22
863) and according greater protection to certain types of commercial speech
(Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1, 16).
SLTA first argues that California courts have not employed a public forum
test when it comes to determining the free speech rights of teachers in the school
setting, but instead have used a balancing test, citing L.A. Teachers Union v. L.A.
City Board of Ed. (1969) 71 Cal.2d 551 (L.A. Teachers Union) and CTA v. San
Diego Unif. School Dist. (1996) 45 Cal.App.4th 1383 (CTA). In L.A. Teachers
Union, the union contested the school district policy that prohibited off-duty
teachers from circulating in the faculty lunchroom and lounge a petition for the
improvement of education. The court, in explaining the proper test under the First
Amendment, stated: ―we must strike ‗a balance between the interests of the
teacher, as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.‘ ‖ (L.A. Teachers Union, supra, 71
Cal.2d at p. 558.) The court, in upholding the teachers‘ right to petition,
concluded that the teachers‘ interest in political expression was paramount, while
the district had failed to demonstrate that its concerns with substantial disruption
of school operations were well founded. (Id. at pp. 559-563.)
In CTA, the question was whether teachers could wear buttons in school
opposing a statewide school voucher initiative. Employing the balancing test used
in L.A. Teachers Union, the court concluded that the District‘s strong interest in
regulating classroom activity justified prohibiting teachers from wearing the
buttons in the classroom, but that the balance tipped in favor of free expression in
noninstructional settings. (CTA, supra, 45 Cal.App.4th at pp. 1388-1392.)
23
The District argues that we have never recognized and should not recognize
a balancing test under the liberty of speech clause of the California Constitution
that departs from public forum analysis under the First Amendment. It points out
that L.A. Teachers Union predates development of the public forum doctrine.
Although SLTA cites In re Hoffman (1967) 67 Cal.2d 845 in arguing that this
court had already adopted something like a public forum analysis by the time L.A.
Teachers Union had been decided, it appears correct that not until Perry in 1983
did the United States Supreme Court articulate its three-tiered public forum
doctrine. (See Farber & Nowak, The Misleading Nature of Public Forum
Analysis: Content and Context in First Amendment Adjudication (1984) 70 Va.
L.Rev. 1219, 1220-1221 (Farber & Nowak).) Moreover, L.A. Teachers Union
cannot plausibly be read to signify that this Court considered and rejected public
forum doctrine in analyzing employee speech in schools under the California
Constitution — indeed the case was decided under the First Amendment. (L.A.
Teachers Union, supra, 71 Cal.2d at p. 566.)
In any event, the present case is also distinguishable from L.A. Teachers
Union. In the latter case, there was no question that the faculty lounge and
lunchroom were places in which unrestricted conversations between teachers took
place, and we found no plausible reason to prevent the circulation of a petition in
that context. (L.A. Teachers Union, supra, 71 Cal.2d at pp. 560-563.) We rejected
the notion that the government had an interest in preventing controversy, or that its
interest in preventing disruption of off-duty faculty engaged in work-related
preparation justified a broad prohibition on circulating petitions. (Id. at pp. 561-
562.) In the present case, the school mailboxes are dedicated to school business
and, by statute, to union communications with employees, but are not places
where open exchanges of ideas occur. The District has a legitimate interest in
24
restricting mailbox communications so as not to permit such mailboxes to become
venues for the one-sided endorsement of political candidates by those with special
access.
SLTA and amicus curiae American Civil Liberties Union also advocate an
alternative type of public forum analysis principally based on U.C. Nuclear
Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (1984) 154
Cal.App.3d 1157 (U.C. Weapons Labs). In that case, a group protesting nuclear
weapons research at the University of California‘s Lawrence Livermore
Laboratory (Livermore Laboratory) sought a preliminary injunction to compel
access to the laboratory‘s visitor centers, for purposes of distributing and
displaying its literature to the public and to the auditorium for purposes of
showing a slideshow or film. The court departed somewhat from the United States
Supreme Court‘s rendering of the public forum doctrine, and instead articulated a
more protective version based on the liberty of speech clause of the California
Constitution. (Id. at p. 1169.) The court rejected an all-or-nothing approach to the
issue of whether government property is a public forum, viewing the public forum
question as ―a continuum, with public streets and parks at one end and government
institutions like hospitals and prisons at the other.‖ (Id. at p. 1164.)
Instead, adopting the analysis formulated by then Court of Appeal Justice
Grodin in Prisoners Union v. Department of Corrections (1982) 135 Cal.App.3d
930, 935, the court reasoned that the question was not whether the government
property in question could be considered a public forum, but rather whether there
was a ―basic incompatibility‖ between the proposed communicative activity and
the intended use of the government property. (U.C. Weapons Labs, supra, 154
Cal.App.3d at p. 1164; see Prisoners Union v. Department of Corrections, supra,
135 Cal.App.3d at p. 935.) The court decided there was no basic incompatibility
25
between the visitors center‘s functioning as a venue for disseminating information
to the public, and the display and distribution of literature protesting Livermore
Laboratory‘s nuclear weapons research. (U.C. Weapons Labs, at pp. 1168-1169.)
On the other hand, the court denied that portion of the preliminary injunction that
sought access to Livermore Laboratory‘s auditorium, which was used primarily
for technical group meetings and could not be classified even as a ―semi-public
forum.‖ (Id. at p. 1170.)
SLTA, joined by its amici curiae, argues that under the basic
incompatibility test, its position should prevail. They further point to a number of
academic articles critical of the United States Supreme Court‘s public forum
doctrine as lacking intellectual coherence and being insufficiently protective of
free speech. (See Farber & Nowak, supra, 70 Va. L.Rev. at p. 1219; Massey,
Public Fora, Neutral Governments, and the Prism of Property (1999) 50 Hastings
L.J. 309.) On the other hand, as the Court of Appeal pointed out below, this basic
incompatibility test has not been found in California appellate cases since U.C.
Weapons Labs. The court also pointed out that the concept of ―basic
incompatibility‖ is used in First Amendment analysis after it has been decided that
the government property in question is a public forum, to determine whether a
given regulation constitutes a reasonable time, place or manner restriction. (See
Grayned v. City of Rockford (1972) 408 U.S. 104, 116.)
In any event, U.C. Weapons Labs is distinguishable from the present case.
In the former case, the primary purpose of the visitors center was the
dissemination of information about the laboratory and its work. (U.C. Weapons
Labs, supra, 154 Cal.App.3d at p. 1168.) The court determined that the
government had no legitimate interest in monopolizing the dissemination of
information about the laboratory on that site. (Id. at pp. 1168-1169.) In the
26
present case, the District is not attempting to monopolize speech regarding
political endorsements in mailboxes, but rather has determined, pursuant to
statutory directive, to disallow use of mailboxes for one-sided political
endorsements. As discussed in the previous section of this opinion, this
prohibition on the use of government resources for political campaigning is a
means of promoting an important government interest, i.e., maintaining the
integrity of the electoral process by neutralizing any advantage that those with
special access to government resources might possess. (See Stanson, supra, 17
Cal.3d at pp. 217-218; Vargas v. City of Salinas, supra, 46 Cal.4th at pp. 23-24.)
Again, we emphasize the narrow reach of our holding. Political speech is
― ‗at the core of what the First Amendment is designed to protect.‘ ‖ (Morse v.
Frederick (2007) __ U.S. __ [127 S.Ct. 2618, 2626].) Neither the First
Amendment nor the free speech clause of the California Constitution, nor, as
discussed, California statutory law, countenances undue restriction on the political
speech of teachers or their unions. But we hold the District may constitutionally
determine pursuant to section 7054 that internal school mailboxes should be kept
free of literature containing endorsements of political candidates.
27
III.
DISPOSITION
The SLTA sought a writ of mandate to compel the District to reverse its
policy against candidate endorsement literature in school mailboxes. Because we
determine the District‘s policy is lawful, we affirm the judgment of the Court of
Appeal reversing the trial court‘s granting of SLTA‘s writ petition.
MORENO, J.

WE CONCUR: GEORGE, C. J.

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
28


See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion San Leandro Teachers Assn. v. Governing Bd. of San Leandro Unified School Dist.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 154 Cal.App.4th 866
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S156961
Date Filed: June 18, 2009

__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Winifred Smith

__________________________________________________________________________________

Attorneys for Appellant:

Littler Mendelson, Garry G. Mathiason, Kimberly L. Owens and Olga Savage for Defendants and
Appellants.

James S. Burling and Harold E. Johnson for Pacific Legal Foundation and National Tax Limitation
Committee as Amici Curiae on behalf of Defendants and Appellants.

Liebert Cassidy Whitmore, Bruce A. Barsook, David A. Urban and Didier Y. Reiss for California School
Boards Association, Association of California School Administrators and School Employers Association of
California as Amici Curiae on behalf of Defendants and Appellants.

Ruiz & Sperow, Celia M. Ruiz and David E. Lyon for Association of California School Administrators as
Amicus Curiae on behalf of Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

California Teachers Association, Priscilla S. Winslow, Joseph R. Colton, Beverly Tucker, Ballinger G.
Kemp and Ramon E. Romero for Plaintiffs and Respondents.

Michael R. Clancy and Christina C. Bleuler for California School Employees Association as Amicus
Curiae on behalf of Plaintiffs and Respondents.

Rothner, Segall & Greenstone, Glenn Rothner, Lisa C. Demidovich and Jonathan Cohen for American
Federation of State, County and Municipal Employees and Service Employees International Union Local
99 as Amici Curiae on behalf of Plaintiffs and Respondents.


Page 2 – S156961 – counsel continued

Attorneys for Respondent:

Julia Harumi Mass, Alan L. Schlosser; David Blair-Loy; and Peter Elisasberg for American Civil Liberties
Union of Northern California, American Civil Liberties Union of San Diego and Imperial Counties and
American Civil Liberties Union of Southern California as Amici Curiae on behalf of Plaintiffs and
Respondents.

The Thomas Jefferson Center for the Protection of Free Expression, Robert M. O‘Neil and J. Joshua
Wheeler as Amici Curiae on behalf of Plaintiffs and Respondents.

Law Offices of Robert J. Bezemek, Robert J. Bezemek, Patricia Lim and David Conway for The California
Federation of Teachers, The Faculty Association of the California Community Colleges and The California
Community College Independents Organization as Amici Curiae on behalf of Plaintiffs and Respondents.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Garry G., Mathiason
Littler Mendelson
650 California Street, 20th Floor
San Francisco, CA 94108-2693
(415) 433-1940

Priscilla S. Winslow
California Teachers Association
1705 Murchison Drive
Burlingame, CA 94010
(650) 552-5425


Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issues: (1) Does Education Code section 7054 permit a school district to prohibit the teachers union from using the school's mailboxes to distribute a union newsletter to its members, if the newsletter includes endorsements for school board candidates? (2) Does the guarantee of liberty of speech in California Constitution, article I, section 2, assure that an employee organization may distribute its message to its members concerning electoral politics via school mailboxes?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 06/18/200946 Cal. 4th 822, 209 P.3d 73, 95 Cal. Rptr. 3d 164S156961Review - Civil Appealclosed; remittitur issued

SAN LEANDRO TEACHERS ASSOCIATION v. GOVERNING BOARD (S156961)


Parties
1San Leandro Teachers Association (Plaintiff and Respondent)
Represented by Priscilla S. Winslow
c/o California Teachers Association
P.O. Box 921
Burlingame, CA

2California Teachers Association (Plaintiff and Respondent)
Represented by Priscilla S. Winslow
c/o California Teachers Association
P.O. Box 921
Burlingame, CA

3Governing Board of the San Leandro Unified School District (Defendant and Appellant)
Represented by Garry George Mathiason
Littler Mendelson et al.
650 California Street, 20th Floor
San Francisco, CA

4San Leandro Unified School District (Defendant and Appellant)
Represented by Garry George Mathiason
Littler Mendelson et al.
650 California Street, 20th Floor
San Francisco, CA

5California Federation Of Teachers (Amicus curiae)
Represented by Robert J. Bezemek
Attorney at Law
1611 Telegraph Avenue, Suite 936
Oakland, CA

6California Federation Of Teachers (Amicus curiae)
Represented by Patricia Lim
Attorney at Law
1611 Telegraph Avenue, Suite 936
Oakland, CA

7Lim, Christina (Defendant and Appellant)
Represented by Garry George Mathiason
Littler Mendelson et al.
650 California Street, 20th Floor
San Francisco, CA

8Martinez, Mike (Defendant and Appellant)
Represented by Garry George Mathiason
Littler Mendelson et al.
650 California Street, 20th Floor
San Francisco, CA

9ACLU Foundation of Northern California, Inc. (Amicus curiae)
Represented by Julia Harumi Mass
ACLU Foundation of Northern California
39 Drumm Strreet
San Francisco, CA

10ACLU Foundation of Northern California, Inc. (Amicus curiae)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

11ACLU Foundation of Northern California, Inc. (Amicus curiae)
Represented by Peter J. Eliasberg
ACLU Foundation of Southern California
1616 Beverly Boulevard
Los Angeles, CA

12ACLU Foundation of San Diego & Imperial Counties, Inc. (Amicus curiae)
Represented by John David Blair-Loy
ACLU Foundation of San Diego &mse Imperial Counties
P.O. Box 87131
San Diego, CA

13ACLU Foundation of San Diego & Imperial Counties, Inc. (Amicus curiae)
Represented by Julia Harumi Mass
ACLU Foundation of Northern California
39 Drumm Strreet
San Francisco, CA

14ACLU Foundation of Southern California, Inc. (Amicus curiae)
Represented by Peter J. Eliasberg
ACLU Foundation of Southern California
1616 Beverly Boulevard
Los Angeles, CA

15ACLU Foundation of Southern California, Inc. (Amicus curiae)
Represented by Julia Harumi Mass
ACLU Foundation of Northern California
39 Drumm Strreet
San Francisco, CA

16American Federation of State County & Municipal Employees (Amicus curiae)
Represented by Glenn Rothner
Rothner Segall & Greenstone
510 S. Marengo Avenue
Pasadena, CA

17Association of California School Administrators (Amicus curiae)
Represented by David E. Lyon
Attorney at Law
2000 Powell Street, Suite 1655
San Francisco, CA

18Association of California School Administrators (Amicus curiae)
Represented by David Arthur Urban
Liebert Cassidy Whitmore
6033 W. Century Boulevard, Suite 500
Los Angeles, CA

19Association of California School Administrators (Amicus curiae)
Represented by Bruce A. Barsook
Liebert Cassidy Whitmore
6033 W. Century Boulevard, Suite 601
Los Angeles, CA

20California School Employees Association (Amicus curiae)
Represented by Christina Cornelia Bleuler
California School Employees Association
2045 Lundy Avenue
San Jose, CA

21California School Employees Association (Amicus curiae)
Represented by Michael R. Clancy
California School Employees Association/Legal Dept.
P.O. Box 640
2045 Lundy Avenue, San Jose, Ca 95131
San Jose, CA

22Pacific Legal Foundation (Amicus curiae)
Represented by Harold E. Johnson
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, CA

23Thomas Jefferson Center (Amicus curiae)
Represented by J. Joshua Wheeler
Attorney at Law
400 Worrell Drive
Charlottesville, VA

24California School Boards Associaiton (Amicus curiae)
Represented by David Arthur Urban
Liebert Cassidy Whitmore
6033 W. Century Boulevard, Suite 500
Los Angeles, CA

25California School Boards Associaiton (Amicus curiae)
Represented by Bruce A. Barsook
Liebert Cassidy Whitmore
6033 W. Century Boulevard, Suite 601
Los Angeles, CA


Opinion Authors
OpinionJustice Carlos R. Moreno
ConcurChief Justice Ronald M. George, Justice Carol A. Corrigan, Justice Joyce L. Kennard, Justice Kathryn M. Werdegar, Justice Marvin R. Baxter, Justice Ming W. Chin

Disposition
Jun 18 2009Opinion: Affirmed

Dockets
Oct 5 2007Petition for review filed
California Teachers Association, respondent by Priscilla S. Winslow, counsel
Oct 5 2007Record requested
Oct 11 2007Received Court of Appeal record
file jacket/briefs/appendices/accordian file
Oct 19 2007Received:
Table of Authorities inadvertently left out of the San Leandro Teachers Assoc., CTA/NEA and Calif. Teachers Assoc.'s Petition for Review.
Oct 24 2007Request for depublication (petition for review pending)
California Federation of Teachers, non-party by Robert J. Bezemek, Counsel
Oct 25 2007Request for depublication filed (another request pending)
by counsel for non-party American Federation of State, County and Muni. Employees and Service Employees International Union Local 99
Oct 26 2007Answer to petition for review filed
counsel for the Governing Board of the San Leandro Unified Sch. Dist., et al. (8.25(b))
Oct 26 2007Request for depublication filed (another request pending)
by counsel for non-party California School Employees Association
Oct 26 2007Request for depublication filed (another request pending)
by counsel for respondents California Teachers Association and San Leandro Teachers Association
Nov 28 2007Petition for review granted (civil case)
Votes: George, C.J., Werdegar, Chin, Moreno, and Corrigan, JJ.
Dec 7 2007Certification of interested entities or persons filed
counsel for (resp.) Calif. Teachers Assoc.
Dec 11 2007Request for extension of time filed
counsel for aplts. Calif. Teachers Assoc. requests extension of time to January 28, 2008, to file the opening brief on the merits.
Dec 14 2007Extension of time granted
On appllication of appellants and good cause appearing, it is ordered that the time to serve and file the opening brief on the mertis is extended to and including January 28, 2008.
Jan 28 2008Opening brief on the merits filed
counsel for Calif. Teachers Assoc.
Feb 8 2008Request for extension of time filed
counsel for appellants requests extension of time to March 28, 2008, to file the answer brief on the merits.
Feb 14 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 28, 2008.
Mar 28 2008Answer brief on the merits filed
counsel for Governing Brd. of San Leandro Unified Sch. Dist., et al.
Apr 17 2008Reply brief filed (case fully briefed)
counsel for Calif. Teachers Assoc.
May 14 2008Received application to file Amicus Curiae Brief
The Thomas Jefferson Center for the Protection of Free Expression (non-party)
May 15 2008Received application to file Amicus Curiae Brief
California School Employees Assoc., (non-party)
May 15 2008Received application to file Amicus Curiae Brief
The California Federation of Teachers, et al. (non-party)
May 16 2008Received application to file Amicus Curiae Brief
Pacific Legal Foundation and National Tax Limitation Committee in support of appellants (non-party)
May 16 2008Received application to file Amicus Curiae Brief
American Federation of State, County and Municipal Employees, et al. in support of petitioners. (non-party)
May 16 2008Received application to file Amicus Curiae Brief
ACLU of Northern California, ACLU of San Diego and Imperial Cos. and ACLU of Southern California. (non-party)
May 19 2008Received:
counsel for Pacific Legal Foundation signed proof of service.
May 19 2008Received application to file Amicus Curiae Brief
Association of California School Administrators (non-party) w/Req. for Judicial Ntc.
May 20 2008Request for judicial notice filed (granted case)
California Federation of Teachers
May 20 2008Permission to file amicus curiae brief granted
The application of American Civil Liberties Union of Northern California et al., for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 20 2008Amicus curiae brief filed
May 20 2008Permission to file amicus curiae brief granted
The application of American Federation of State, County, and Municipal Employees et al., for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 20 2008Amicus curiae brief filed
May 20 2008Permission to file amicus curiae brief granted
The application of Pacific Legal Foundation for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 20 2008Amicus curiae brief filed
May 20 2008Permission to file amicus curiae brief granted
The application of The California Federation of Teachers et al., for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 20 2008Amicus curiae brief filed
May 20 2008Permission to file amicus curiae brief granted
The application of The Thomas Jefferson Center for Protection of Free Expression for permisison to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 20 2008Amicus curiae brief filed
May 20 2008Permission to file amicus curiae brief granted
The application of California School Employees Association for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 20 2008Amicus curiae brief filed
May 20 2008Received application to file Amicus Curiae Brief
Association of California School Administrators and School Employers Association of California in support of defts. and aplts. (8.25(b))
May 20 2008Received application to file Amicus Curiae Brief
California School Boards Association in support of defts. and aplts.
May 22 2008Permission to file amicus curiae brief granted
The application of California School Boards Association for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 22 2008Amicus curiae brief filed
California School Boards Association.
May 22 2008Permission to file amicus curiae brief granted
The application of Association of California Administrators for permission to file an amicus curiae brief and request for judicial notice in support of respondents is hereby granted. An answer thereto may be served and filed by amy party wiithin 20 days of the filing of the biref.
May 22 2008Amicus curiae brief filed
Association of California School Administrators
May 22 2008Permission to file amicus curiae brief granted
The application of Association of California School Administrators and School Employers Association of California for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 22 2008Amicus curiae brief filed
Association of California School Administrators and School Employers Association of California.
Jun 9 2008Response to amicus curiae brief filed
counsel Calif. Teachers Assoc. to a/c brief of Pacific Legal Foundation and Nat'l. Tax Limitation Committee.
Jun 10 2008Response to amicus curiae brief filed
counsel for aplts. Governing Brd. of San Leandro Unified School Dist., et al. to a/c brief of American Federation of State, County, and Municipal Employees and Service Employees Int'l Union Local 99. (8.25(b))
Jun 10 2008Response to amicus curiae brief filed
counsel for aplts. Governing Brd. of San Leandro Unified School Dist, et al., to a/c brief of Calif. School Employees Association. (8.25(b))
Jun 10 2008Response to amicus curiae brief filed
counsel for aplts. Governing Brd. of San Leandro Unified School Dist., et al., to a/c brief of California Federation of Teachers, et al. (8.25(b))
Jun 11 2008Response to amicus curiae brief filed
counsel for Calif. Teachers Association to a/c brief of California School Boards Association.
Jun 18 2008Filed:
counsel for Calif. Teachers Association, Errata to response to amicus curiae brief filed by Calif. School Brds. Assoc.
Jun 23 2008Received:
counsel for petnr. Calif. Teachers Assoc. amended proof of service to response to amicus curiae brief of a/c Calif. School Brds. Assoc.
Apr 1 2009Case ordered on calendar
to be argued Tuesday, May 5, 2009, at 9:00 a.m., in San Francisco
Apr 24 2009Filed:
counsel for petnrs. San Leandro Teachers Assn. et al., Case to be cited at oral argument w/copy of decision attached.
Apr 24 2009Request for judicial notice granted
Amici Curiae California Federation of Teachers' et al. Request for Judicial Notice, filed May 15, 2008, is granted. Amicus Curiae Association Of California School Administrators' Request for Judicial Notice, filed May 19, 2008, is denied.
Apr 29 2009Received:
counsel for resps. (Governing Brd. of the San Leandro Unified Sch. Dist.et al.) additional authority for oral argument.
May 5 2009Cause argued and submitted
Jun 17 2009Notice of forthcoming opinion posted
Jun 18 2009Opinion filed: Judgment affirmed in full
The SLTA sought a writ of mandate to compel the District to reverse its policy against candidate endorsement literature in school mailboxes. Because we determine the District's policy is lawful, we affirm the judgment of the Court of Appeal reversing the trial court's granting of SLTA's writ petition. OPINION BY: Moreno, J. --- joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Jul 28 2009Remittitur issued
Aug 3 2009Received:
from CA 1/1 receipt for remittitur.

Briefs
Jan 28 2008Opening brief on the merits filed
counsel for Calif. Teachers Assoc.
Mar 28 2008Answer brief on the merits filed
counsel for Governing Brd. of San Leandro Unified Sch. Dist., et al.
Apr 17 2008Reply brief filed (case fully briefed)
counsel for Calif. Teachers Assoc.
May 20 2008Amicus curiae brief filed
May 20 2008Amicus curiae brief filed
May 20 2008Amicus curiae brief filed
May 20 2008Amicus curiae brief filed
May 20 2008Amicus curiae brief filed
May 20 2008Amicus curiae brief filed
May 22 2008Amicus curiae brief filed
California School Boards Association.
May 22 2008Amicus curiae brief filed
Association of California School Administrators
May 22 2008Amicus curiae brief filed
Association of California School Administrators and School Employers Association of California.
Jun 9 2008Response to amicus curiae brief filed
counsel Calif. Teachers Assoc. to a/c brief of Pacific Legal Foundation and Nat'l. Tax Limitation Committee.
Jun 10 2008Response to amicus curiae brief filed
counsel for aplts. Governing Brd. of San Leandro Unified School Dist., et al. to a/c brief of American Federation of State, County, and Municipal Employees and Service Employees Int'l Union Local 99.
Jun 10 2008Response to amicus curiae brief filed
counsel for aplts. Governing Brd. of San Leandro Unified School Dist, et al., to a/c brief of Calif. School Employees Association. (8.25(b))
Jun 10 2008Response to amicus curiae brief filed
counsel for aplts. Governing Brd. of San Leandro Unified School Dist., et al., to a/c brief of California Federation of Teachers, et al. (8.25(b))
Jun 11 2008Response to amicus curiae brief filed
counsel for Calif. Teachers Association to a/c brief of California School Boards Association.
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 10, 2009
Annotated by Hayley Hunt

Issues
(1) Does Education Code section 7054 permit a school district to prohibit the teachers union from using the school's mailboxes to distribute a union newsletter to its members, if the newsletter includes endorsements for school board candidates?
(2) Does the guarantee of liberty of speech in California Constitution, article I, section 2, assure that an employee organization may distribute its message to its members concerning electoral politics via school mailboxes free from school district censorship?

Facts
The San Leandro Teachers Association (SLTA) is the exclusive bargaining representative of the San Leandro Unified School District’s (District) certified employees. Prior to the annual school board election, SLTA distributed newsletters in faculty mailboxes which contained endorsements of particular school board candidates. The assistant superintendent informed SLTA that pursuant to Education Code Section 7054, the union was prohibited from distributing materials containing political endorsements.

Procedural History
SLTA responded by filing a petition for peremptory writ of mandate to cause the school district to “cease and desist from enforcing a policy which forbids the SLTA from placing in school mailboxes any materials generated by the [SLTA] which contains references to candidates for public office or ballot initiatives.” The school district demurred. The trial court found in favor of the SLTA, denying the demurrer. The Court of Appeal reversed.

Discussion

Statutory Interpretation
The parties disagree over the statutory interpretation of Education Code Section 7054(a), the relevant statute that addresses the issue before the court. Education Code Section 7054(a) prohibits the use of “school district . . . funds, services, supplies or equipment” for urging the support or defeat of political candidates or ballot propositions.” The parties specifically argued over whether a mailbox constitutes “services” and/or “equipment” within the meaning of Section 7054.

Legislative Intent
The court turned to the legislative intent of the statute in order to construe it. The court noted that the statute was enacted in 1977 in response to Stanson v. Mott, 17 Ca.3d 206 (1976), “which held that government agencies could not use public funds to campaign for ballot propositions or candidates . . . without explicit legislative authorization” for it would “present a serious threat to the integrity of the electoral process.” The court, thus, noted that the policy underlying this decision was that the government should not “take sides” in elections or provide an unfair advantage to a particular side. The court also addressed concern that influencing elections could further be abused by furthering themselves in office. Specifically, the court that “[t]axpayer money should not be used for political purposes.”

Thus, the court concluded that allowing employee organizations to use the mailboxes as an “internal channel of communication” would unfairly advantage those organizations and the candidates they endorse, and the mailboxes could potentially be abused. The court sided with the District, finding that the term “equipment” was intended to include “mailboxes specially constructed at taxpayer expense to serve as a school’s internal communication channel, which one group may not use to its exclusive advantage.”

The court refused to accept SLTA’s argument that the District violated Government Code section 3543.1(b), which gives school employee organizations the right to use internal mailboxes subject to “reasonable regulation.” The court concluded that the school district’s policy of banning candidate endorsements was a reasonable regulation.

The Constitutional Question
The court next turned to the question of whether prohibiting distribution of candidate endorsements in school mailboxes violated the California Constitution.

First Amendment Analysis
In conducting its analysis, the court first applied the public forum doctrine of the First Amendment and found that mailboxes are a nonpublic forum. It reasoned that the school mailboxes were not open to the general public, but rather only employees affiliated with the school had access to them. Thus, regulation of “speech” need only be reasonable, and the court concluded that the District could “impose viewpoint-neutral subject matter regulations on the content of what is placed in those mailboxes. The prohibition of candidate endorsement literature is such a viewpoint-neutral regulation.”

California Constitution Analysis
The court next conducted an analysis under the California Constitution’s liberty of speech clause, but came to the same conclusion. It found that the mailboxes were not places of open exchanges of ideas. Additionally, the court found that the District had a legitimate interest in prohibiting mailbox communications in order to prevent one-sided endorsements of political candidates by those who had special access to the mailboxes. Additionally, the court noted that the District was not attempting to monopolize speech regarding political endorsements in mailboxes, but instead barred the use of mailboxes for one-sided political endorsements so as to maintain the integrity of the political process.

Holdings
(1) The District’s “rule prohibiting candidate endorsement literature in school mailboxes is a ‘reasonable regulation’ within the meaning of Government Code section 3543.1, subdivision (b) because it enforces the directive of section 7054.
(2) “[T]he District may constitutionally determine pursuant to section 7054 that internal school mailboxes should be kept free of literature containing endorsements of political candidates.”