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Court Settles Teacher Unions' Conflict Over Mailing

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Washington--The U.S. Supreme Court, in a split decision, overturned a federal appeals-court ruling last week and held that a local school board has the authority to give an exclusive bargaining agent for teachers the right to use the school system's inter-school mail system while denying that right to a rival teachers' union.

The Court also rejected the arguments of the Justice Department in agreeing to review Grove City College v. Bell, a lawsuit challenging the manner in which the Education Department enforces Title IX of the Education Amendments of 1972--the federal law barring sex discrimination in education.

In the union case, Perry Education Association v. Perry Local Educators' Association, five of the Court's nine members agreed that neither the First Amendment nor the Equal Protection Clause of the 14th Amendment precludes the Perry Township, Ind., school board from denying the Perry Local Educators' Association (plea) access to the district's inter-school mail system or preventing it from using teacher mailboxes to distribute union materials.

Guarantee of Free Speech

Associate Justice Byron R. White, in delivering the Court's majority opinion, ruled that although "the First Amendment's guarantee of free speech applies to teachers' mailboxes as surely as it does elsewhere within the school and on sidewalks outside," it does not "require equiv-alent access to all parts of a school building in which some form of communication activity occurs."

"If by policy or by practice the Perry School District has opened its mail system for indiscriminate use by the general public, then plea could justifiably argue a public forum has been created," Justice White said. "This, however, is not the case."

Differential Access is Legitimate

Furthermore, he said, the differential access provided the Perry Education Association (pea) and the plea is legitimate because "use of school-mail facilities enables pea to perform its obligations as exclusive representative of all Perry Township teachers."

"Conversely, plea does not have any official responsibility in connection with the school district and need not be entitled to the same rights of access to school mailboxes," Justice White continued. "Exclusion of the rival union may reasonably be considered a means of insuring labor-peace within the schools. The policy serves to prevent the district's schools from becoming a battlefield for inter-union squabbles."

Associate Justice William J. Brennan Jr. argued in a dissenting opinion that "on a practical level," the only reason for the pea to seek a labor contract denying the plea access to the mail system "is to deny its rivals access to an effective channel of communication."

"The exclusive access policy discriminates against [the plea] based on their viewpoint," the minority said. "The board has agreed to amplify the speech of [the pea], while repressing the speech of [the plea] based on [the plea's] point of view. This sort of discrimination amounts to censorship and infringes the First Amendment rights of [the plea]."

As of late last week, the Court had yet to announce when it would hear oral arguments in the Grove City case, in which a small, private Pennsylvania college is challenging the right of the Education Department to force it to sign a document certifying that it does not discriminate on the basis of sex.

Currently, the department requires all schools and colleges that receive federal aid to sign the Title IX "assurance of compliance" form. The college has argued that it should not be forced to sign the form because Title IX is a "program-specific" statute, meaning that its anti-sex-discrimination provisions extend only to those parts of a school or college that directly receive federal aid.

The college receives no direct federal aid, but many of its students receive federal tuition grants. Last August, the U.S. Court of Appeals for the Third Circuit ruled that the students' receipt of these funds made the school subject to Title IX's restrictions.

'Program-Specific' Nature

Within the last year, a number of federal courts have rendered conflicting opinions on the so-called "program-specific" nature of Title IX. Late last January, the Justice Department filed a brief with the Court asking it not to review the Grove City case because, the brief said, the Reagan Administration believes it is not "the proper case in which to resolve inconsistencies in statements by the courts of appeals concerning the meaning of the program-specific limitation found in Title IX." (See Education Week, Feb. 2, 1983.)

In other actions taken last week, the Court:

Agreed to allow the National Education Association to file a "friend-of-the-court" brief in support of preferential treatment for minority employees in layoffs, when affirmative-action programs have previously been implemented to remedy the effects of racial discrimination. The union's brief was filed in connection with two cases arising from the 1981 layoffs of police officers and firefighters in Boston.

Agreed to allow the Council for American Private Education and several other religious, educational, and civil-rights organizations to file "friend-of-the-court" briefs in Mueller v. Allen, a lawsuit challenging the constitutionality of Minnesota's system of tuition tax deductions for various public- and private-school expenses, including tuition.

Upheld a federal appeals-court decision in United States v. Phoenix Union High School District, which required an Arizona school district to turn over the minutes of a closed school-board meeting to investigators from the Education Department's office for civil rights. The Phoenix Union school board had argued that state law prevented it from turning the records over to the federal officials.

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