Summary of Freedom of Expression Decision, May 7, 2004
In a May 7, 2004 decision, arbitrator Don Munroe has upheld a provincial grievance filed by BCTF on November 6, 2002, and determined that attempts by school boards to prevent teachers from using school bulletin boards, parent-teacher interviews, and other means to advise colleagues and parents of the Union's and its members’ views with respect to class size and bargaining matters are violations of teachers' rights to free expression under the Charter.
In holding that the boards were interfering with teachers free speech, and that such interference was not justified in a free and democratic society, arbitrator Munroe wrote:
Here, the School Boards’ purpose was clearly “… to restrict the content of expression by singling out particular meanings that are not to be conveyed”; and likewise “… to control the ability of the [teachers] conveying the meaning to do so”. The content of expression sought to be restricted was the teachers’ views on issues of class size, class composition, etc, -- issues which at the material times were at the public forefront. The control on the teachers’ ability to convey meaning was to prohibit them from posting flyers on teachers’ bulletin boards where parents or students might see them; and to prohibit the dissemination of information on those subjects, or any discussion thereof, during regular parent-teacher interviews.
[T]he posting of the subject bulletins or flyers on the teachers’ bulletin boards, or the handing out of the “cards” at parent-teacher interviews, would in no way interfere with the effective and efficient operation of a school; and neither would it result in loss of instructional time or other educational disturbance. There is no suggestion in the Alleged Actions that the intended communication by the teachers, either as to form or substance, would in any degree have impaired the performance of their duties as teachers.
BCPSEA said that the School Boards’ directives to teachers were not intended, for example, to prevent a teacher from discussing the issues, or handing out the “cards” (or the like) at public meetings or even at parent advisory councils. If the communications which are here at issue would be unobjectionable in terms of the duty of fidelity if uttered or distributed in public or quasi-public fora I cannot see how the duty of fidelity becomes a reasonable limit prescribed by law justifying the prohibition of the exact same communications on a teachers’ bulletin board or in the privacy of a parent-teacher interview.
I make this additional point. The common law duty of fidelity owed by a teacher, and arising from his or her employment, is a duty owed to the School Board employing that teacher. A teacher does not owe a duty of fidelity arising from employment to the provincial government. To the extent the expressive content of the materials intended by the teachers to be posted or otherwise communicated was aimed at the provincial government, the duty of loyalty or fidelity has no application.
This award is a significant victory for teacher (and employee) free speech, and should give school boards pause in attempts to use their power as employers, on behalf of BCPSEA and the provincial government, to suppress the voices of teachers and teacher unions on educational matters.