Yes, one would think that that would have been the
Board's defense, no? But, to the Board's credit, I suppose, they
concluded that 31 years without incident was pretty good proof that Melzer was
not a risk to act on his impulses. Here we have the rare
case in which a government concedes forthrightly that it fired someone for First
Amendment activity, when no doubt it could have easily persuaded a court to rule
under Mt. Healthy that it would have fired him based on unprotected grounds, as
well. Under those circumstances, don't we have to take the Board at its
word, and accept the premise of the courts that NAMBLA membership and speech
was, in fact, the ground for dismissal? In any event, that's what
makes the case worthy of discussion on this list. There are serious
questions here -- about associational grounds for discharge, and the role of
disruption caused by listerners' reactions in the Pickering balance --
that increasingly appear in many public employee discharge cases.
Marty
----- Original Message -----
Sent: Thursday, July 17, 2003 8:46
PM
Subject: Re: Membership in Disfavored
Organization as Grounds for Dismissa l as School ...
Disruption would
likely result merely from parents and students knowing that Melzer is a
(self-described) pedophile, regardless of whether Melzer is a member of NAMBLA
or associates with NAMBLA members. Parents and students would not likely be
persuaded by any school board report finding that Melzer was not dangerous.
Thus it seems the school board's action may not have been based directly on
Melzer's first amendment activities, but rather on the knowledge in the
community that Melzer is a pedophile.
Mark S.
Scarberry
Pepperdine University
School of Law
-----Original
Message----- From: Marty
Lederman [mailto:[EMAIL PROTECTED] Sent: Thursday, July 17, 2003 4:32
PM To:
[EMAIL PROTECTED] Subject: Re: Membership in Disfavored
Organization as Grounds for Dismissal as School ...
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.
----- Original Message -----
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.)
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