Re: Membership in Disfavored Organization as Grounds for Dismissa l as School ...

[Scarberry, Mark]

For those who are interested, the Melzer case is now on Westlaw at 2003 WL 21660299.   I'll be happy to indulge Marty in his assumption that the case is just about the firing of a teacher whose associational activities caused parents to be so upset that substantial disruption had occurred and was likely to continue to occur. (As I note, below, on that assumption the case is extraordinarily dangerous and wrong, in my view.)   Before doing so, however, let me note that the court's crucial discussion of likely future disruption at the school included only three points.   First,   "An expert in psychology testifying for the Board stated that having a teacher with beliefs such as Melzer's would provoke anxiety and be a disruptive experience for the average student. He believed students would likely be unable to concentrate in plaintiff's class or be uncomfortable asking him for help after class or in any other one-on-one situation."   Note that the focus here is on Melzer's "beliefs," which the court does not define, but which presumably include beliefs that it would be appropriate and desirable for him to engage in sex with some of his students and that the law should be changed to allow him to do so. At least a substantial part of that disruption is due to the students knowing that Melzer is a pedophile who does not think that his inclinations are wrong. The anxiety caused by this knowledge does not turn directly on whether Melzer had been active in NAMBLA; his activity in NAMBLA is mostly relevant here because it caused Melzer's "beliefs" to become known.   Second, the court states (in what Marty calls a stray reference but I think is central to the court's analysis) that "it is perfectly reasonable to predict that parents will fear his influence and predilections." Here Melzer's advocacy and association with NAMBLA are predicted to cause parents to fear that he will act on his pedophilic desires. The advocacy and association mostly function here as indicators of the strength of Melzer's commitment to pedophilia and his willingness to go against the cultural norms against pedophilia, all of which makes parents fear his actions. Maybe the reference to "influence" deals with the concern that his position as a teacher will cause some students to consider more favorably the views put forward by Melzer in his advocacy with NAMBLA. Still, there is a strong component here of reasonable parental fear of Melzer eventually acting on his "predilections."   Third, and finally, the court says,   "We also note, as the district court did, that disruption may arise from Melzer's possible inability to fulfill his duties as a teacher. Appellant candidly acknowledged that it would be difficult for him to decide whether to report an incident of child molestation at the school. Not only is reporting such incidents a part of any teacher's duties, lack of confidence in Melzer's will to do so would further undermine the trust of students and parents alike. Given all of the foregoing, we think the school authorities' predictions of further disruption should Melzer return find full support in the record."   Melzer associates with other pedophiles; he edited a publication that gave advice on how to seduce children, and that urged pedophiles to keep their activities secret and not to answer any police questions; he indicates a lack of commitment to report molestation as the law requires. Robert Sheridan's references to the Inquisition notwithstanding, parents may reasonably fear that Melzer's presence as a teacher increases the risk that their children will be victims of pedophiles.   Thus, in the court's analysis of the crucial question whether Melzer's return to the classroom would result in disruption, the court does not focus on mere parental reaction to Melzer's membership and activities in NAMBLA. Instead, it focuses on students' and parents' reactions primarily to Melzer's self-affirmed predatory sexual inclinations and to potential actions based on those self-affirmed predatory inclinations.     WITH ALL OF THAT AS PREAMBLE,   I agree with Marty that it is important to consider the case as if it were just about disruption caused by reaction to unpopular associations. The court's opinion --  *except for the brief but crucial application of the balancing test to the facts* -- assumes that Melzer was fired just because of the reaction of parents and students to his unpopular association with and advocacy for NAMBLA. The court says that such activities were fully protected under the First Amendment. The court refuses to consider such activities to be of lesser value than any other First Amendment activity. The court even states that where multiple First Amendment rights are involved (here speech and association), no higher protection need be given; Pickering still applies, with no extra burden on the state. Presumably that analysis could be applied where speech, association, and free exercise of religion were all at issue.   Under that analysis, an outspoken atheist teacher could be fired in the Bible Belt, and a fundamentalist Christian could be fired in some other areas. A Muslim teacher who attends a mosque could be fired just because parents unreasonably fear that any religiously active Muslim is likely to engage in terrorism. What about the teacher who is active in the ACLU in a very conservative area or who is active in the John Burch (Birch?) society in a very liberal area?   The court's opinion is extraordinarily dangerous and wrong, in my view, unless we look at how the court actually applied its test to the facts. Thankfully the application of the test to the facts is to some degree contrary to the analysis that led up to the application. That should be pointed out so that later cases do not mechanically apply the dangerous analysis but rather consider what the court actually held.     Mark S. Scarberry Pepperdine University School of Law   -----Original Message----- From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Thursday, July 17, 2003 11:10 PM To: [EMAIL PROTECTED] 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" <[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 ...   > 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 >