Well, no, that's not the sense in which I say -- or
more to the point, the court says -- "the Board fired Melzer for engaging in
First Amendment activities." To be sure, the court makes a stray reference
to a prediction that "parents will fear his influence and
predilections." The court also states, as Mark notes, that Melzer
said it would be difficult for him to report molestation. And perhaps Mark
is correct that it is Melzer's "predilections" -- on which there was no evidence
he had acted in 31 years among young people in his care on a daily basis -- that
are truly driving the court's decision. But . . .
those are not the grounds on which the school relied, and not the
grounds on which the courts (expressly) decided the case. Both courts, and
the school, quite plainly concluded that Melzer could be fired because
of his membership in NAMBLA and his association with the speech published by
that organization, and because the parents' opposition to those
activities would cause undue disruption. As the court of
appeals wrote, "it is
clear that the Board's basic justification for firing Melzer was the community's
reaction to the message advocated by NAMBLA,
its Bulletin, and Melzer himself through his active participation in the
organization." Similar excerpts from the opinions of
the courts in support of this conclusion are legion -- I set out some of
them from the appellate court below. (If, by contrast and as Mark argues,
the school had fired Melzer because of reaction to his "predilections," then
the extensive, contested Pickering analysis could have been
avoided: the school board and court could simply have said that sexual
predilections are not constitutionally protected, and that Melzer's speech and
association were used only as evidence of those predilections, which is
constitutionally unobjectionable, see Wisconsin v. Mitchell.)
But be that as it may, and regardless whether Mark
is correct about the "real" basis for the discharge, could Mark please indulge
me my assumption for purposes of the constitutional question? My question
to the list takes the school board and the courts at their word: There is
no doubt that the opinion of the court in Melzer, if followed as
precedent, would permit a New York school board to fire a teacher
because parents opposed the groups with which the teacher
associates and/or found the advocacy of the membership group
distasteful -- if the parent opposition could be predicted to cause appreciable
"disruption." Should that satisfy the board's burden under
Pickering, and, if so, can it be reconciled with cases such
as Robel, Greene v. McElroy, McDaniel v.
Paty, etc.?
Thanks.
Excerpts from CTA2 opinion:
Many of the 50 or 60 parents in attendance expressed
anger at Melzer's NAMBLA affiliation. . . . A letter was
drafted to the Board of Education Chancellor, the Mayor, and other public
officials demanding that Melzer and any other known member of
NAMBLA not be in a position of daily contact with the students at Bronx
Science, or of any other New York City public school.
One [student at the assembly] . . . said plaintiff's actions should be
condemned as "utterly detestable." [The principal] estimated that
over 90 percent of the student body was unhappy
with Melzer's membership in NAMBLA. Based on these reactions from the school
community, Galasso decided that allowing Melzer to return to the classroom would
be detrimental to the school.
The [school board] investigation report
concluded that articles in the [NAMBLA] Bulletin could serve as
an instruction manual for the sexual abuse of children and can reasonably be
assumed to have led to such abuse. As a result of
this report, the Board filed disciplinary charges against plaintiff stating that
he had "advanced the goals and activities of NAMBLA,
and assisted in the publication of the NAMBLA Bulletin,
including at times editing, writing and raising funds for this
publication, all of which promoted illegal sexual activity
between male adults and male children under the age of
consent." Further, the Board charged that
Melzer's activities had been widely reported, had caused
disruption in his school and the school community, and had undermined his
ability to serve as a teacher.
[The trial court] concluded
that "Melzer was terminated solely because his employer
reasonably believed that the public exposure of [Melzer's] associational
activities . . . was likely to impair Melzer's effectiveness as a
teacher and cause internal disruption if he were returned to the
classroom."
[T]he activity
which prompted the Board to fire Melzer was not a specific instance of
speech, or particular disruptive statement, but an associational
activity of which speech was an essential component. . . .
Melzer's termination did not directly stem from any particular words he
said or printed -- the most inflammatory articles appearing in the Bulletin were
not written by Melzer himself, and most of Melzer's admissions about
his sexual preference were made after and as result of the
scandal at Bronx Science.
[I]t is clear that the Board's basic justification for
firing Melzer was the community's reaction to the message advocated by NAMBLA,
its Bulletin, and Melzer himself through his active participation in the
organization.
[W]e observe that even if we were somehow to
parse Melzer's activity into the public concern test, most of it would likely
pass. NAMBLA's stated goal is to effect change in attitudes and laws regarding
age of consent. The bulk of Melzer's activity, advocacy, and
speech support this goal. Advocacy for a change in public
perception and law, a fundamental component of democracy, is certainly
a matter of public concern, regardless of the underlying subject matter.
Consequently, we assume Melzer's activity is protected and move
to the next part of the Pickering test.
----- Original Message -----
From: "Scarberry, Mark" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Friday, July 18, 2003 1:41 AM
Subject: Re: Membership in Disfavored Organization
as Grounds for Dismissa l as School ...
>
> 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.)
>
