Re: Membership in Disfavored Organization as Grounds for Dismissal as School ...

[Marty Lederman]

Yes, there are a number of such cases.  Even Justice Marshall, in his opinion in Rankin, dropped a footnote citing with apparent approval (a "cf." citation) a case (McMullen v. Carson, 754 F.2d 936 (CA 11 1985)) permitting a sheriff's office to discharge an employee for stating on television news that he was a recruiter for the Ku Klux Klan.  According to Justice Marshall, in such a case the employee's protected activity "truly injures the public interest in the effective functioning of the public employer."  The theory courts have articulated in most such cases is that the employee's membership, or affiliations, or speech, or beliefs, or reading materials, could lead a reasonable observer to conclude that the employee would not zealously and without fear or favor discharge his or her public duties, and that the state has a substantial interest in making sure that the public does not (reasonably) doubt the good will and effectiveness of its public servants.  Surely there is something intuitively appealing about such logic. The problem, of course, is that we also have several venerable lines of precedent -- such as the Elrod and Robel "doctrines," not to mention McDaniel v. Paty -- in which the Court has, in effect, reasoned that the state may not merely presume an inability to faithfully uphold one's duty based upon the employee's protected speech, membership, beliefs, etc.  (Rankin itself, of course, is such a case.)  Could a police department decline to hire certain Baptist officers with religious beliefs that gambling is sinful because of a suspicion that such persons would be less than zealous in protecting casinos?  Cf.  Endres v. Indiana State Police, 2003 WL 21480361 (CA7 2003).  Or discriminate against Catholics because of a reasonable fear that they would have conflicts of conscience in protecting women's right to obtain abortions?  Cf. Rodriguez v. Chicago, 156 F.3d 771, 779 (CA7 1998) (Posner, C.J., concurring). Moreover, in this particular NAMBLA case, is there any reasonable (as opposed to understandably visceral) basis for concluding that the plaintiff would not perform his duties in an acceptable manner?  As I understand it -- and this may be mistaken -- the school did not argue that there was a risk the plaintiff couldn't do his job properly; the theory was, instead, that public reaction to his membership necessarily undermined his effectiveness.) Is there any satisfactory way of reconciling all these precedents?  Are Robel, Elrod, etc., a dead letter?  (Can you imagine an Al Qaeda sympathizer or member being permitted to work in a defense facility, as in Robel?)  Is there an implicit judicial judgment that membership in the Klan and NAMBLA is entitled to lesser protection than membership in the Republican Party or the CPUSA?  Or is the real difference that in McMullen and the NAMBLA case -- unlike in Robel, McDaniel, etc.-- the court decisions are reflecting the fact that there truly would be a substantial problem caused by the public's reaction to the employee's protected conduct?  And, if audience reaction is the principal distinction, doesn't that, indeed, raise the question of the heckler's veto that the Second Circuit attempts to elide? Marty ----- Original Message ----- From: David Bernstein To: [EMAIL PROTECTED] Sent: Thursday, July 17, 2003 6:20 PM Subject: Re: Membership in Disfavored Organization as Grounds for Dismissal as School ... I'll throw in the example of the recent NYC case in which a police officer and two firefighters were dismissed after participating in a racist parade float.  A district court judge held that the dismissal violated the First Amendment.  I think there is a case to be made that especially police officers can be fired if they engage in activities that would lead members of the community to believe that they will not act fairly, though the facts of the NYC case make it clear that they were fired by Guiliani out of political expediency, and would have been fired even if they were janitors, which I can't see as being justified. As for the teachers, it seems reasonable to me to fire them.  Could you imagine a private school retaining teachers known to be members fo NAMBLA?  Imagining the government as a private employer isn't always the right standard, but it does help to put things in perspective regarding whether the plaintiff in question is being fired for his views, or because his views disqualify him from being a member of the relevant profession. In a message dated 7/17/2003 3:12:22 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: 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