Eisenberg declined to speculate on whether or not Bloomberg might have done that, but he said he was confident that D-130 could only apply to electoral politics.
A broader interpretation, he said, “puts the DOE in the position of having to regulate issue-oriented speech in ways that make it difficult to know how and where to draw the line.” Limiting free speech on issues that are political in nature, he said, could potentially impact student clubs that deal with gay rights, for instance, environmental causes, or racism. “And we know that can’t be right,” he said.
Eisenberg also questioned another line in the regulation quoted in the city’s court documents, which calls for a “posture of complete neutrality” on political candidates. Even if that were possible, he said, it wouldn’t be desirable.
“The obligation of an academic or teacher is to engage in critical judgment and to support those judgements with reasoning and fact,” Eisenberg said. “And that may be inconsistent with a principle of absolute neutrality.”
We asked the city’s law department what it made of Mirer’s argument that D-130 was meant to be more narrow in scope. Nick Paolucci, a spokesman for the department, said he wasn’t familiar with argument and couldn’t comment.