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

[Marty Lederman]

Yes, that would have been a very different case.  In fact, the Second Circuit opinion states that "Melzer is a self described pedophile and admits to being sexually attracted to young males up to the age of 16."  If the school had fired him because of his sexual desires, presumably there would be no First Amendment issue here.  But it didn't.  There was no evidence that Melzer engaged in any illegal or inapproriate conduct at Bronx Science in his 31 years teaching there.  Presumably for this reason, among others, a School Board Report appears to have concluded that Melzer was not a risk to sexually abuse his students.  196 F. Supp. 2d at 241.  Thus, the district court concluded that "Melzer was terminated solely because his employer reasonably believed that the public exposure of his associational activities outside of the workplace as a member of NAMBLA was likely to impair Melzer's effectiveness as a teacher and cause internal disruption if he were returned to the classroom."  Id. at 245.  There does not appear to have been any dispute in the court of appeals that Melzer was fired because of his First Amendment activities, rather than because of his sexual desires.   Marty     ----- Original Message ----- From: David Bernstein To: [EMAIL PROTECTED] Sent: Thursday, July 17, 2003 7:12 PM Subject: Re: Membership in Disfavored Organization as Grounds for Dismissal as School ... I don't know what the school argued, but it strikes me that the state has an interest in ensuring the safety of schoolchildren.  Membership in NAMBLA is evidence (though not conclusive evidence) of interest in having sexual relations with children.  The state has a legitimate interest in not hiring (or firing) teachers that it knows may very well have an interest in having sex with children, because such teachers are far more likely to try to have sex with children than a randomly-selected teacher or teacher candidate.  Troubling First Amendment problems are indeed raised, and can only be solved if the government got out of the business of running public (as opposed to helping to finance private) schools, which I certainly wouldn't object to.  But if we are going to let the government run public schools, it doesn't make sense to me to say, "Yes, we know this teacher is far more likely than others to want to have sex with children, and hence to act on that interest, but we can't fire him because that would mean violating his First Amendment rights."  Can you imagine the liability that would accrue to a private school that did not fire such a teacher, who later molested several students?  I'm confident a jury would deem keeping this teacher on staff gross negligence, and if it's gross negligence for a private school, I just can't  see it being constitutionally required of a public school. In a message dated 7/17/2003 6:53:30 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: 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.)