David writes, "... 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..."
Because I just posted something on "government not bowing to popular prejudice," taken from Palmore v. Sidotti, the principle happens to be on my mind, and I wondered how it should be taken in such a controversial context as this, since fairness is sometimes a relative concept. It relates also to a question posted earlier in which it was perceptively asked (sorry I've forgotten the author) how one should distinguish between an invalid popular stereotype based on bias and prejudice and a valid generalization of the type in which courts typically indulge.
Do we have a Department of Distinguishing Stereotypes from Generalizations, or have I just described the judicial function? Or, perhaps that of the expert witness at trial. Or us.
----- Original Message -----From: David BernsteinSent: 7/17/2003 3:20:22 PMSubject: Re: Membership in Disfavored Organization as Grounds forDismissal 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 fo! llow those precedents that deal directly with denial of employment bec ause 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
