As I read the case: The court holds that the Board did not fire Melzer in retaliation for his associational and speech activities. Instead, according to the court, the Board fired Melzer largely because of the effect his First Amendment activities had on parents and students, in alerting them to his self-identity as a pedophile, and thus causing disruption and fear. I assume that is the sense in which Marty says the Board fired Melzer for engaging in First Amendment activities.
Note also that the court says that Melzer admitted that he would have difficulty deciding whether or not to report child molestation at the school. That would seem to be an important enough obligation of a teacher that a lack of commitment to carrying it out would justify the firing. It also suggests that keeping Melzer on as a teacher could be dangerous to the students, indirectly. Mark Scarberry Pepperdine -----Original Message----- From: Marty Lederman To: [EMAIL PROTECTED] Sent: 7/17/2003 6:41 PM Subject: Re: Membership in Disfavored Organization as Grounds for Dismissa l as School ... 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 ----- From: Scarberry, Mark <mailto:[EMAIL PROTECTED]> To: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> 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. Marty ----- Original Message ----- From: David <mailto:[EMAIL PROTECTED]> Bernstein To: [EMAIL PROTECTED] <mailto:[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.)
