Membership in Disfavored Organization as Grounds for Dismissal as School Teacher -- Pickering, Robel, Elrod, Etc.

[Marty Lederman]

Title: Re: Statutory rape laws

The Second Circuit yesterday affirmed the dismissal of a section 1983 suit brought by a long-time teacher at Bronx High School of Science who was fired after it became known that he was a member of NAMBLA.  http://www.ca2.uscourts.gov:81/isysnative/RDpcT3BpbnNcT1BOXDAyLTczMzhfb3BuLnBkZg==/02-7338_opn.pdf#xml=http://10.213.23.111:81/isysquery/irlf7a0/1/hilite.  The uncontroverted evidence was that the teacher had never engaged in any illegal activity (and I believe there was no evidence of any risk of such activity).   The court applied Pickering, and, not surprisingly, found that the risk of disruption outweighed the value of the plaintiff's First Amendment activities.  (Plaintiff argued that because the disruption was merely a function of parents' distaste for his speech and associational activities, the use of that disruption to justify dismissal was tantamount to capitulation to a heckler's veto.  The court responded that in the context of schools, parents are no mere hecklers.  This part of the opinion leaves much to be desired.)   What's most interesting to me is that the resort to Pickering balancing in effect avoids the much stricter scrutiny that would be applied if the court were to follow those precedents that deal directly with denial of employment because of protected membership in a disfavored organization, such as the Elrod/Branti/Rutan doctrine, and cases such as McElroy and Robel.  I know the case law is a mess in this area.  But is there some easy way to explain why, if membership in the CPUSA cannot justify denial of a security clearance and work in a defense facility, membership in NAMBLA can justify denial of job as a school teacher?  Perhaps one might say that there is a greater "incompatibility" between the membership and the job requirements in the latter case, but is that so obvious?  Especially here, where there was absolutely no indication of any negative effect on the teacher's performance other than (and until) the disruption that was caused when folks found about his membership and disfavored beliefs?  Does anyone think that Robel and McElroy would be decided differently today?   Marty Lederman