Mark writes: "...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."
*** With respect, this looks like an invented fig-leaf covering the real reason for the firing, the teacher's membership in NAMBLA, because it's based on a prediction of what he might do, hypothetically, if a situation came up, which is likely to come up, granted. Potential indirect danger seems a stretch. Why not wait to see what the man did when the situation arose. This reminds me of a friend who maintained gays should not be allowed to teach in public schools because of what they "might" do, in his mind. The teacher's admission that he would "have difficulty" reporting molestation as required by law and using this as the basis for draconian legal repercussion, firing, loss of livelihood, also strikes me as having an echo of the Inquisition, because it asks the individual to discuss (he's already revealed something of his beliefs through his membership in a special interest group) his privately held belief on a subject not necessarily implicated by membership in NAMBLA. The board of inquiry had to set the man up by looking for a question he might have difficulty answering to their satisfaction, a probing of the inner workings of his mind, which I thought might be a protected area, or should be. I thought we might have to wait to observe conduct, rather than to project fantasies. In this regard note the NYT report today of the overturning of the conviction and seven year prison sentence of the Ohio probationer, Brian Dalton (on a child porn possession charge following a child porn prior with a condition not to possess child porn) who himself kept a personally written journal (found by his probation officer in an apparently lawful search). The journal contained fictitious stories of torture and molestation of children, according to the report. The other echo of Inquisition of the teacher's case that resonates with me is the report some time ago that candidates for the U.S. Supreme Court will be asked by pro-choice advocates on the Senate Judiciary Committee not only whether they will they follow Roe but whether they actually "believe in it." The fact the teacher admits he would "have difficulty following" the mandatory child abuse reporting law strikes me as being not very different from the admonition given to jurors who acknowledge they might have difficulty convicting, or in believing a police officer's testimony, or imposing the death penalty. That is not usually ground for a challenge for cause, when, after a little probing, the prospective juror agrees he can put aside personal beliefs and follow the jury instructions as given by the court. The prospective juror remains qualified to serve and if there is a challenge, it costs one side a peremptory, then. One of the problems with the teacher's admission to having difficulty following the mandatory reporting law, is that this law is not entirely free of some objection on technical grounds. The California statute (Cal. Pen. C. Sec. 11166), and I understand they are fairly uniform across the country because federally funded in part, fails to define what a reasonable suspicion of child molestation consists of in terms of the evidence. There's more than a bit of room for interpretation, in other words, before putting the potential suspect through the investigative mill with prospective loss of job or custodianship of one's own child, and leaving his name on a list of suspected abusers. I should think a non-NAMBLA member might also admit to some hesitation before picking up the telephone in some questionable cases where there is hyper-sensitive alarm but no evidence. No, I think the issue here is whether membership alone in a disfavored organization is sufficient to justify firing. The sub-issue might be to ask how far the inquiry may go into one's ability to behave according to law, and the third issue is how far the official board may inquire into one's previously unannounced beliefs and their implications. The deeper one goes, the more Inquisitorial it is. It would be simpler indeed, or at least less intrusive, to make membership in some organizations prima facie disqualifying for some positions on the grounds of no confidence. At least that would be an objective test, or a presumption of disqualification. If the presumption is rebuttable, the subject is forced to choose either to explain and rebut, or to accept the dire alternative. Is 'no confidence' alone a recognized basis for job disqualification? Robert Sheridan [EMAIL PROTECTED] > [Original Message] > From: Scarberry, Mark <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 7/17/2003 10:41:53 PM > Subject: Re: Membership in Disfavored Organization as Grounds for Dismissal 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: [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.)
