The opinion of the court was delivered by: WALDMAN
Plaintiffs are teachers employed by the Colonial School District. Defendants are the School District and members of its governing school board. Plaintiffs seek a declaration that a School District policy prohibiting school employees from engaging in political activities on School District property at any time violates plaintiffs' First Amendment rights when invoked to prevent off-duty employees from soliciting votes at official polling places which happen to be on school property. Plaintiffs also seek to enjoin defendants from enforcing that policy to bar political activity at such polling locations by employees during non-workings hours.
The pertinent facts are as follow.
On November 4, 1993, a private citizen wrote to the Board of School Directors of Colonial School District (the "Board") to express her concern that a telephone and other equipment maintained by the School District were being used by the Colonial Education Association (the "CEA"), a teachers' union, to secure volunteers to assist the Union in efforts to help elect certain candidates to the Board. The allegation was confirmed by plaintiff Castle, president of the CEA, who assured the School District superintendent by letter of November 10, 1993 that this was an "unintentional oversight" and future use of School District property for political activities would not occur.
In response to the citizen complaint, the Board adopted a policy on January 20, 1994 entitled "Prohibited Political Activities for Employees" ("the Policy"). The Policy prohibits the use of School District equipment in connection with political activities. It also prohibits employees "from engaging in political activities of any nature on school District property at any time" and from engaging in political activities during working hours at any place. The definition of "political activities" includes "posting, preparing or distributing materials promoting the candidacy of any candidate or political party." The Policy contained the following provision: "Nothing in this policy is to be interpreted to mean that School District employees may not on their own time engage in political activities at an official polling place if such officially designated polling place is on school property."
A first violation of the policy results in a suspension without pay. A second violation is referred to the Board for consideration of further disciplinary action, including termination of employment.
On April 21, 1994, the Board revised the Policy by removing the provision permitting employees to work at polling places located on school property. In September 1995, plaintiff Castle sought a clarification of the Policy with respect to the issue of employees working at the polls. On September 21, 1995, the Board reaffirmed its commitment to full enforcement of the Policy as revised, which included its interpretation that employees would be prohibited from working at polls located on school property. Of the twenty-seven polling places in the District, four are located on school property.
On October 20, 1995, plaintiffs filed this action and moved for a preliminary injunction against enforcement of the portion of the Policy prohibiting employee presence at polls on school property on the impending election day of November 7, 1995. That motion was denied as moot when defendants agreed to waive enforcement for the upcoming election day.
To determine whether government restrictions on the speech of its employees can survive a First Amendment challenge, the court must weigh "the interests of the [employee], as a citizen, in commenting upon matters of public concern" against "the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). While the Pickering balancing test is most often utilized in cases where disciplinary action is taken against a public employee for engaging in disruptive or controversial communications, it is also applied in cases involving a prospective ban on employee speech. United States v. National Treasury Employees Union, 513 U.S. 454, 130 L. Ed. 2d 964, 115 S. Ct. 1003, 1014 (1995) ("NTEU ") (applying Pickering in challenge to ban of honoraria for speeches by federal employees); United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 564, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973) (applying Pickering in challenge to prohibition on political activities by federal employees).
The government's burden to justify the ex ante prohibition of speech, however, is greater than to justify an ex post disciplinary action. NTEU, 115 S. Ct. at 1014. The government must show that "the interests of the potential audience and of present and future employees in expression are outweighed by the necessary impact of such expression on the actual operation of government." Id.
Whether particular speech touches on a matter of public concern is determined by the content, form and context of that speech. Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). A government employee's speech addresses a matter of public concern when it is can be "fairly considered as relating to any matter of political, social, or other concern to the community." Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995); Sanguigni v. Pittsburgh Bd. of Public Education, 968 F.2d 393, 397 (3d Cir. 1992). The views of School District employees on the merits of candidates for public office, communicated to voters at official polling locations on election day, clearly involves a matter of "public concern." See Goodman v. City of Kansas City, Missouri, 906 F. Supp. 537, 541 (W.D. Mo. 1995) (public employees' display of support for political candidates is ...