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Unions Debate Exclusive Use of School Mail System

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Washington--Two rival local teachers' groups from Indiana argued before the U.S. Supreme Court last week over the constitutionality of collective-bargaining provisions that give one and not the other the privilege of using the school system's internal mail facilities.

The case, Perry Education Association v. Perry Local Educators Association, is being closely watched by national teachers' organizations because similar privileges are included in teachers' contracts nationwide, according to Robert H. Chanin, general counsel for the National Education Association. He represented the Perry Education Association (pea) before the Court last week.

The Supreme Court is being asked by the pea in the case to overturn a decision by the U.S. Court of Appeals for the Seventh Circuit to prohibit the Metropolitan School District of Perry Township from granting the pea, as the collective-bargaining agent in the school system, exclusive use of the system's mail facilities.

Two other U.S. appellate courts have upheld the privilege in other school systems. However, the Su-preme Court has said it will make a final decision on its jurisdiction in the case at the same time it considers the case's merits.

As the union's lawyers suggested during the oral arguments before the Court, teachers' organizations often use internal school-district mail systems to promote themselves and to attract new members.

The case originated in U.S. District Court in 1979, after the pea and the Perry school board signed a collective-bargaining agreement that gave the pea the exclusive right among teachers' unions to have access to teachers' mailboxes in the district's 13 schools and to use the district's inter-school mail system.

The Perry Local Educators Association (plea), a group not affiliated with the two national teachers' unions, filed suit.

It acknowledged that the pea had been elected in 1977 by the teachers in Perry to be the sole representative of all the teachers in the school system and thus had a legitimate need to use the mail system to contact teachers. But the plea claimed that because it had been denied equal access to the mail system under the 1978 contract, the contract violated its rights to freedom of speech and equal protection.

Citing the pea's "very different status" as the exclusive representative for all Perry Township teachers and ample alternative ways for the plea to communicate with teachers, the federal district court ruled against the organization.

The U.S. Court of Appeals for the Seventh Circuit reversed the lower court's decision on June 24, 1981.

The appellate court acknowledged that the Perry school system has a ''legitimate interest in allowing the pea to use the mail system." But it ruled that in granting the union exclusive use of the system, the district denied the plea "equal access"--in violation of the First Amendment and the Equal Protection Clause.

The larger teachers' group appealed this decision to the Supreme Court.

Before the Supreme Court last week, Mr. Chanin argued that pea's special access to the Perry mail facilities was necessary to enable the union to fulfill its responsibilities to the Perry teachers. He added that the arrangement also minimizes conflict between the two unions and thus promotes "labor stability."

But much of the discussion during oral arguments in the case last week focused on the fairly narrow question of whether the Perry mail system is a "public forum" or a "nonpublic forum."

Mr. Chanin argued that the appellate court, after deciding that the school system's mail facilities are not public, improperly held them unconstitutional by judging them against constitutional standards of free speech and equal protection established for public forums. The standards for public forums are more rigorous than those for nonpublic forums.

The lawyer for the plea, Richard L. Zweig, contended that the Perry school system's mail facilities are a "limited public forum," in part because other groups--including the Cub Scouts and church organizations--are allowed to use it, and because the pea is not prohibited by its contract from using the mail system for non-school-related purposes, such as attacking the plea

The Justices also focused several of their questions on the public versus nonpublic forum issue, with Associate Justice John Paul Stevens at one point asking Mr. Zweig, "Do you agree that if [the Perry mail system] is not a public forum, you lose?"

Exchanges between the Justices and the unions' lawyers during the oral arguments seemed to suggest that each group sees the school system mail facilities as a powerful vehicle for attacking the other.

"Can you give me an example of the type of information that you give to teachers through the district's mail facilities?" asked Associate Justice Stevens.

"A number of things," responded Mr. Chanin. "For example, the results of [teacher] grievance hearings."

"And what a stinker the competing union is," Associate Justice Thurgood Marshall said.

"That comes in occasionally," Mr. Chanin countered.

Later, Associate Justice William J. Brennan Jr. asked: "If your union had access [to the mail facilities], you would use it to persuade teachers that you are a better representative, wouldn't you?"

"In part," Mr. Zweig answered.

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