Matt Franck
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
***************************
At 10:52 AM 7/18/2003 -0400, you wrote:
If that's the basis for the court's decision, its particularly troubling in
light of recent developments here in South Florida. I'm thinking in
particular about the tenured Muslim professor in Tampa who was fired from a
state university for espousing pro-Islamic/anti-American views. The basis
the school gave for firing him was not his exercise of his First Amendment
rights per se, but rather violent reactions in the community to his presence
on campus, including vandalizing his offices. Applying the Second Circuit's
reasoning, the school's reaction would be justified to preserve the peace.
The rationale for the case --if not the outcome-- is extremely troubling.
Lauren Gilbert
Assistant Professor of Law
St. Thomas University School of Law
16400 NW 32nd Avenue
Miami, FL 33054
Tel: 305-623-2386
Fax: 305-623-2390
-----Original Message-----
From: Marty Lederman
To: [EMAIL PROTECTED]
Sent: 7/18/03 2:10 AM
Subject: Re: Membership in Disfavored Organization as Grounds for Dismissa l
as School ...
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" < <mailto:[EMAIL PROTECTED]>
[EMAIL PROTECTED]>
To: < <mailto:[EMAIL PROTECTED]>
[EMAIL PROTECTED]>
Sent: Friday, July 18, 2003 1:41 AM
Subject: Re: Membership in Disfavored Organization as Grounds for
Dismissa l as School ...
> 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: <mailto:[EMAIL PROTECTED]>
[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]>
mailto:[EMAIL PROTECTED]>
> To: <mailto:[EMAIL PROTECTED]>
[EMAIL PROTECTED] < <mailto:[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: <mailto:[EMAIL PROTECTED]>
[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]>
mailto:[EMAIL PROTECTED]> Bernstein
>
> To: <mailto:[EMAIL PROTECTED]>
[EMAIL PROTECTED] < <mailto:[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,
> <mailto:[EMAIL PROTECTED]> [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.)
>
