The Legal Politics of Seussville

This past week, after a seemingly tight but really not so tight Alberta election, the idea of sitting down to a Dr. Seuss book seems, well, almost refreshing. Admittedly, my days of “The Cat In the Hat” are over and perhaps “You’re Only Old Once” is more my speed, but as this week has shown, there is more to Seuss than meets the eye. Certainly, school administrators’ in Prince Rupert, British Columbia deem Dr. Seuss too political to be used in the classroom. In an attempt to create public awareness over an ongoing labour dispute cut short by the B.C. government in Bill 22, the teachers in Prince Rupert have placed the following quote from Seuss’s Yertle the Turtle on T-shirts, signs, and bumper stickers: “I know, up on the top you are seeing great sights, but down here at the bottom we, too, should have rights.” School officials have warned the teachers not to display this quote on school property or in the classroom as such “political messaging” is deemed inappropriate for the classroom. School administrators base their position on previous arbitration decision, which found a teacher’s right to expression was limited by a student’s right to be insulated from political messages.

The April 5, 2012 decision of the British Columbia Labour Relations Board in British Columbia Teachers' Federation v British Columbia Public School Employers' Association tackled the ban on teachers in the Vancouver and Nanaimo school districts from wearing T-shirts and buttons with the following slogans: "Standing up for BC Students," "Proud to be a Teacher," "I (heart) Public Education" and "Kids matter. Teachers Care." The Board declined to rule on the issue, finding the matter, which was essentially one of freedom of expression, was properly an issue for the collective bargaining arbitrator. Of course, this ruling does not bode well for the teachers’ union based on previous rulings of the arbitrator such as in the February 2011 ruling in British Columbia School Employers Association, School district No. 73 v. British Columbia Teachers Federation. In that decision, the arbitrator found the teachers’ freedom of expression under s. 2(b) of the Charter was not violated when the teachers were required to remove black armbands worn by them in the classroom to protest the ongoing labour dispute. Although the employer admitted the removal violated freedom of expression rights under the Charter, the order to remove was justified under s.1 of the Charter as a reasonable limit. Invoking the Oakes test, the arbitrator found the limit was demonstrably justified based on the location of the protest in the classroom before elementary aged children. In support, the arbitrator relied on a comment made by the Supreme Court of Canada in the 2009 decision of Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component that “the likelihood of children being present matters” and that the teachers had ample opportunities, outside of the classroom, to engage in protest. It was, in the arbitrator’s view, reasonable to “insulate” school-aged children from the dispute, which touched directly on their education, during classroom hours.

Interestingly, the arbitrator’s decision was not based upon a previous British Columbia Court of Appeal decision in British Columbia Public School Employers' Association v. British Columbia Teachers' Federation, which recognized the School Boards mandate of “ensuring an open and supportive education environment.” In order to fulfill this mandate, the majority of the Court found, the Board was justified in requiring teachers to refrain from using political messaging in the schools, although the directive in question was overly broad and failed on the Oakes minimal impairment test.

Significantly, Madame Justice Huddart, writing for the majority decision, agreed teachers were not "silent members of society” and went further in stating:The School Boards cannot prevent teachers from expressing opinions just because they step onto school grounds. School grounds are public property where political expression must be valued and given its place… Therefore, in my opinion, the absolute ban of discussion on school property during school hours did not minimally impair teachers' rights. Few places would be more appropriate for a discussion of the need for resources for public schools than a parent-teacher interview dedicated to one child's education. The Supreme Court noted in Pepsi, "[f]ree expression in the labour context benefits not only individual workers and unions, but also society as a whole" (at para. 35). The same holds true for teachers. Their political expression benefits society as a whole even where the concerns arise out of a labour relations dispute.

This decision resonates with my earlier blog posting, Freedom of Expression In The Classroom, in which I discussed freedom of speech in the classroom, albeit not in relation to labour dispute messaging. In posting, I referred to the case of the school teacher Richard Morin, who was disciplined and his contract not renewed after he showed an emotionally charged documentary highly critical of the religious right connection to American politics. Morin took his right to express himself in the classroom to the Prince Edward Court of Appeal, the majority of which upheld not only the teacher’s right to stimulate educative discussion in the classroom by presenting differing viewpoints but also the students’ right:

in a democratic society to have access to free expression by their teachers - encouraging diversity, critical thinking, and vigorous debate ... students have a right to hear this expression and benefit from it...this right of students is fundamental to their being citizens in a truly democratic state and students of that states' educational system.

So whether or not Dr. Seuss has a place in teacher political expression in classroom may be a matter for the Supreme Court of Canada to decide. Until then, I am pulling out my copy of The Lorax, another example of the “Politics of Dr. Seuss” as a reminder that kids have opinions too.