Re: Teacher suspended for anti-same-sex-marraige Facebook post

[Marc Stern]

Some years ago,the second circuit decided a case involving a teacher at an 
elite nyc public school who was a member in the North American Man Boy Love 
Society. The teacher said nothing about his membership in school;naturally the 
students found out. The second circuit affirmed his dismissal. I don't have 
access to the cite.
Marc
Marc

From: Brownstein, Alan [mailto:aebrownst...@ucdavis.edu]
Sent: Friday, August 19, 2011 05:24 PM
To: Law & Religion issues for Law Academics 
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

I agree that the substance of what the KKK says and stands for makes my example 
striking and sui generis. But my hypothetical had two elements. The second part 
is that the teacher was the recruitment officer of the local chapter.

How would you evaluate this situation, Eugene. The teacher is the recruitment 
officer of the “Gays are Abominations  Society” which expresses horribly 
negative views about gays and lesbians. He teaches Seventh graders, 12 years 
olds. He uses his social networking pages as a recruitment tool and accepts 
past and present students as “friends.”  (But he doesn’t recruit on school 
grounds or invite his students to be his “friends” while on school grounds.)

Are there we lines we can draw that allow restrictions on this kind of 
expressive conduct without creating a foundation for punishing anything a 
teacher says on his face book page that the principal, school board or local 
community does not like? Just as all speech expressed with passion incites 
(Brandeis and Holmes), all speech expressed with passion invites and recruits 
in some sense.

Alan






From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

The KKK example is interesting, but I think it works because 
it’s so striking:  Our initial reaction is that surely the KKK teacher can be 
fired, but I think that reaction is partly driven by the judgment that the KKK 
teacher is so sui generis.  Shouldn’t we sacrifice this little bit of teacher 
freedom, in order to prevent racial tension at the school?

Now perhaps the answer is yes, but that answer is especially 
appealing only to the extent that this is indeed a sui generis scenario.  Once 
this decision becomes used as a precedent for punishing teachers for saying 
that they’re disgusted by same-sex marriage, then we’re talking about a 
considerably broader speech restriction.  And if this extension of the KKK hypo 
by analogy works, where will it stop?  What if the teacher didn’t say “I almost 
threw up” and “cesspool,” but simply said that same-sex marriages were sinful 
(which he did say) or evil?

The danger, it seems to me, is that the emerging rule – certainly as 
practically understood and internalized by speakers, but also as applied by 
government employers – would end up being that all criticism of same-sex 
marriage or of homosexuality could lead to government discipline.  (After all, 
the analogy between such criticism and the Buell statement is closer than the 
analogy between the KKK organizer hypo and the Buell statement.)  And that 
brings up the question I asked:  How should we then consider the value of the 
restricted speech to speakers and to society, in applying the Pickering 
balance, if indeed the speech restriction tends to deter government employee 
speech on one side of such a topic?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, August 19, 2011 10:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

Mark raises valid concerns.  The questions Steve asks seem to be Tinker 
questions. I think the Tinker “material disruption” standard almost unavoidably 
creates some risk of a heckler’s veto. It also is implicitly biased against 
unpopular speech which challenges conventional orthodoxy because such speech is 
far more likely to be disruptive than conventional messages expressing 
generally accepted viewpoints.

It may be that these weaknesses in Tinker have to be accepted because of the 
school’s legitimate need to maintain order in an institutional setting 
involving hundreds of minors. But these concerns suggest that we should be wary 
of extending a Tinker like standard to expression by adults expressed outside 
of the school environment.

Still, that wariness may have some limits. If a teacher in a racially 
integrated school with a history of racial incidents was the recruitment 
officer for the local KKK chapter and used social networking as a recruitment 
tool, would the school be justified in refusing to renew his contract?

Alan Brownstein

___
T

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Brownstein, Alan]

I agree that the substance of what the KKK says and stands for makes my example 
striking and sui generis. But my hypothetical had two elements. The second part 
is that the teacher was the recruitment officer of the local chapter.

How would you evaluate this situation, Eugene. The teacher is the recruitment 
officer of the “Gays are Abominations  Society” which expresses horribly 
negative views about gays and lesbians. He teaches Seventh graders, 12 years 
olds. He uses his social networking pages as a recruitment tool and accepts 
past and present students as “friends.”  (But he doesn’t recruit on school 
grounds or invite his students to be his “friends” while on school grounds.)

Are there we lines we can draw that allow restrictions on this kind of 
expressive conduct without creating a foundation for punishing anything a 
teacher says on his face book page that the principal, school board or local 
community does not like? Just as all speech expressed with passion incites 
(Brandeis and Holmes), all speech expressed with passion invites and recruits 
in some sense.

Alan






From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

The KKK example is interesting, but I think it works because 
it’s so striking:  Our initial reaction is that surely the KKK teacher can be 
fired, but I think that reaction is partly driven by the judgment that the KKK 
teacher is so sui generis.  Shouldn’t we sacrifice this little bit of teacher 
freedom, in order to prevent racial tension at the school?

Now perhaps the answer is yes, but that answer is especially 
appealing only to the extent that this is indeed a sui generis scenario.  Once 
this decision becomes used as a precedent for punishing teachers for saying 
that they’re disgusted by same-sex marriage, then we’re talking about a 
considerably broader speech restriction.  And if this extension of the KKK hypo 
by analogy works, where will it stop?  What if the teacher didn’t say “I almost 
threw up” and “cesspool,” but simply said that same-sex marriages were sinful 
(which he did say) or evil?

The danger, it seems to me, is that the emerging rule – certainly as 
practically understood and internalized by speakers, but also as applied by 
government employers – would end up being that all criticism of same-sex 
marriage or of homosexuality could lead to government discipline.  (After all, 
the analogy between such criticism and the Buell statement is closer than the 
analogy between the KKK organizer hypo and the Buell statement.)  And that 
brings up the question I asked:  How should we then consider the value of the 
restricted speech to speakers and to society, in applying the Pickering 
balance, if indeed the speech restriction tends to deter government employee 
speech on one side of such a topic?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, August 19, 2011 10:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

Mark raises valid concerns.  The questions Steve asks seem to be Tinker 
questions. I think the Tinker “material disruption” standard almost unavoidably 
creates some risk of a heckler’s veto. It also is implicitly biased against 
unpopular speech which challenges conventional orthodoxy because such speech is 
far more likely to be disruptive than conventional messages expressing 
generally accepted viewpoints.

It may be that these weaknesses in Tinker have to be accepted because of the 
school’s legitimate need to maintain order in an institutional setting 
involving hundreds of minors. But these concerns suggest that we should be wary 
of extending a Tinker like standard to expression by adults expressed outside 
of the school environment.

Still, that wariness may have some limits. If a teacher in a racially 
integrated school with a history of racial incidents was the recruitment 
officer for the local KKK chapter and used social networking as a recruitment 
tool, would the school be justified in refusing to renew his contract?

Alan Brownstein

___
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RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Volokh, Eugene]

The KKK example is interesting, but I think it works because 
it’s so striking:  Our initial reaction is that surely the KKK teacher can be 
fired, but I think that reaction is partly driven by the judgment that the KKK 
teacher is so sui generis.  Shouldn’t we sacrifice this little bit of teacher 
freedom, in order to prevent racial tension at the school?

Now perhaps the answer is yes, but that answer is especially 
appealing only to the extent that this is indeed a sui generis scenario.  Once 
this decision becomes used as a precedent for punishing teachers for saying 
that they’re disgusted by same-sex marriage, then we’re talking about a 
considerably broader speech restriction.  And if this extension of the KKK hypo 
by analogy works, where will it stop?  What if the teacher didn’t say “I almost 
threw up” and “cesspool,” but simply said that same-sex marriages were sinful 
(which he did say) or evil?

The danger, it seems to me, is that the emerging rule – certainly as 
practically understood and internalized by speakers, but also as applied by 
government employers – would end up being that all criticism of same-sex 
marriage or of homosexuality could lead to government discipline.  (After all, 
the analogy between such criticism and the Buell statement is closer than the 
analogy between the KKK organizer hypo and the Buell statement.)  And that 
brings up the question I asked:  How should we then consider the value of the 
restricted speech to speakers and to society, in applying the Pickering 
balance, if indeed the speech restriction tends to deter government employee 
speech on one side of such a topic?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, August 19, 2011 10:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

Mark raises valid concerns.  The questions Steve asks seem to be Tinker 
questions. I think the Tinker “material disruption” standard almost unavoidably 
creates some risk of a heckler’s veto. It also is implicitly biased against 
unpopular speech which challenges conventional orthodoxy because such speech is 
far more likely to be disruptive than conventional messages expressing 
generally accepted viewpoints.

It may be that these weaknesses in Tinker have to be accepted because of the 
school’s legitimate need to maintain order in an institutional setting 
involving hundreds of minors. But these concerns suggest that we should be wary 
of extending a Tinker like standard to expression by adults expressed outside 
of the school environment.

Still, that wariness may have some limits. If a teacher in a racially 
integrated school with a history of racial incidents was the recruitment 
officer for the local KKK chapter and used social networking as a recruitment 
tool, would the school be justified in refusing to renew his contract?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, August 19, 2011 9:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

There is much to be said for Steve’s point of view.

On the other hand, consider the implications. What about a teacher whose blog 
severely criticizes creationists (“I want to puke when I hear that Gov. Perry 
wants to have schools teach creationism) or who says that religion sickens him 
or who says that anyone who supports the Iraq war or that 911 was a US plot to 
justify invading Afghanistan and Iraq etc.? Doesn’t this also lead to a 
heckler’s veto, in which students who don’t like the teacher’s point of view 
will protest and then it will be claimed that the Pickering/Connick analysis 
justifies taking action against the teacher?

How would this work in the context of academic freedom in a university?

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

Doesn't this call for a straightforward Pickering/Connick analysis? I'm 
assuming Garcetti wouldn't apply, unless the teacher used Facebook to 
communicate officially with students. I lean strongly in favor of protecting 
the teacher's speech which, crude as it was, was clearly on a matter of public 
concern. So isn't the key inquiry whether the employer can demonstrate that 
this particular speech was harmful to the good order and discipline of the 
school? Seems to me there would be lots of facts we'd need to know. Was the 
post readable by anyone or just the teacher

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Volokh, Eugene]

Actually, I didn't mean this as a chilling effect argument, in 
the sense that restricting constitutionally valueless speech X (e.g., false 
statements of fact) may deter even constitutionally valuable speech Y (e.g., 
true statements that the speaker fears might be thought false by a jury), 
though such an argument would indeed be interesting.

Rather, my argument was that one can't lightly dismiss the religion-and-the-law 
consequences of allowing the discipline of Buell under Pickering, even though 
Buell wasn't making an overtly religious argument.  Such a decision allowing 
the discipline of Buell would either rest on the judgment that (1) speech that 
isn't overtly religious is less valuable under the Pickering balance than 
speech that is overtly religious, or (2) both overtly religious and 
nonreligious would be similarly subject to discipline.  I assumed that option 
(1) wasn't right, though I'd be happy to discuss this further; my assumption 
was that First Amendment law shouldn't treat expressly religious speech as more 
protected under the Free Speech Clause than other speech, since that would 
itself pose Free Speech Clause or Establishment Clause problems.  I therefore 
concluded that option (2) is what would be adopted - which is why the 
discipline of Buell, who wasn't speaking expressly religious, would also apply 
to any other teacher's "be[ing] fired even for more expressly religious 
expressions of his anti-same-sex-marriage views.

Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 1:40 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

This is essentially a chilling-effect argument.  Eugene, is your position 
simply that Pickering analysis should look beyond the individual interests of 
the speaker and consider such potential chilling effects on others who hold 
similar views? Or are you arguing that there may be some reason to think that 
religiously motivated anti-gay speakers are inherently more likely to be 
chilled, and thus deserve more solicitude, than others who speak on "prominent 
public controversies"?

It should be noted that, P.C. school administrators aside (and cf. the 7th 
Circuit Nuxoll case, which upheld the in-school right to wear gratuitous 
anti-gay slogans on t-shirts) religiously motivated opponents of gay rights on 
the whole exercise their speech and political rights quite robustly and 
effectively.  Are you suggesting that, all other things being equal, we should 
nonetheless give special solicitude to the chilling effects on their speech?  
Should we be equally concerned about chilling effects on the vocal gay-rights 
Unitarians in a rural Indiana community, or anyone else who risks employer 
retaliation for speaking out in a way that's unpopular or socially disapproved 
in their particular local context?

Steve


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 9:37 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post
I agree that as a doctrinal matter Pickering is the rule, for 
speech about same-sex marriage as well as for speech about other topics.  But 
Pickering's "usual public employee speech framework" requires an inquiry into 
the magnitude of the "the interests of the teacher, as a citizen, in commenting 
upon matters of public concern" - and, I take it, the interests of society more 
broadly in allowing such speech (cf. United States v. National Treasure 
Employees Union).  The question is how we should evaluate this interest when it 
comes to speech on such prominent public controversies.

As to the link to religion:  One question in the debate about 
gay rights is the degree to which gays and lesbians will be free to build their 
families, and have access to government-provided benefits connected to 
marriage.  (I actually support such claims.)  But another is the degree to 
which those who belong to religious groups that oppose same-sex marriage and 
oppose homosexuality will find that their expression of their religious beliefs 
- whether cast in expressly religious terms or not -- is not only seen by 
others as "rather crude garden-variety bigotry" but is also used as a basis for 
being fired from government jobs, being disciplined by their K-12 schools or 
colleges, being subjected to potential civil liability for "hostile work 
environment" harassment.

After all, I take it that a public schoolteacher who sees Buell disciplined or 
fired for his speech would likewise be reasonably worried that he might be 
fired even for more expressly religious expressions of his 
anti-same-sex-marriage views, no?  Such religious expression may be no

Re: Teacher suspended for anti-same-sex-marraige Facebook post

[Steven Jamar]

What is the effect of the teacher being a social studies which probably 
includes some civics instruction -- at least in my school district the social 
studies classes consider current events every year no matter what the main 
focus of the course is that year.  Surely the gay rights issue is one that 
should be discussed in class.  Does that affect the rights of the teacher to 
make such an emotion-laden semi-public statement?  

In general, I think teachers and students should be given broad latitude by the 
administration.  Just what the Constitution requires is harder.

Steve

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice 
http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

"Education:  the path from cocky ignorance to miserable uncertainty."

Mark Twain




___
To post, send message to Religionlaw@lists.ucla.edu
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Steve Sanders]

This is essentially a chilling-effect argument.  Eugene, is your position
simply that Pickering analysis should look beyond the individual interests
of the speaker and consider such potential chilling effects on others who
hold similar views? Or are you arguing that there may be some reason to
think that religiously motivated anti-gay speakers are inherently more
likely to be chilled, and thus deserve more solicitude, than others who
speak on "prominent public controversies"? 
 
It should be noted that, P.C. school administrators aside (and cf. the 7th
Circuit Nuxoll case, which upheld the in-school right to wear gratuitous
anti-gay slogans on t-shirts) religiously motivated opponents of gay rights
on the whole exercise their speech and political rights quite robustly and
effectively.  Are you suggesting that, all other things being equal, we
should nonetheless give special solicitude to the chilling effects on their
speech?  Should we be equally concerned about chilling effects on the vocal
gay-rights Unitarians in a rural Indiana community, or anyone else who risks
employer retaliation for speaking out in a way that's unpopular or socially
disapproved in their particular local context?  
 
Steve


  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 9:37 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post



I agree that as a doctrinal matter Pickering is the rule,
for speech about same-sex marriage as well as for speech about other topics.
But Pickering's "usual public employee speech framework" requires an inquiry
into the magnitude of the "the interests of the teacher, as a citizen, in
commenting upon matters of public concern" - and, I take it, the interests
of society more broadly in allowing such speech (cf. United States v.
National Treasure Employees Union).  The question is how we should evaluate
this interest when it comes to speech on such prominent public
controversies.

 

As to the link to religion:  One question in the debate
about gay rights is the degree to which gays and lesbians will be free to
build their families, and have access to government-provided benefits
connected to marriage.  (I actually support such claims.)  But another is
the degree to which those who belong to religious groups that oppose
same-sex marriage and oppose homosexuality will find that their expression
of their religious beliefs - whether cast in expressly religious terms or
not -- is not only seen by others as "rather crude garden-variety bigotry"
but is also used as a basis for being fired from government jobs, being
disciplined by their K-12 schools or colleges, being subjected to potential
civil liability for "hostile work environment" harassment.  

 

After all, I take it that a public schoolteacher who sees Buell disciplined
or fired for his speech would likewise be reasonably worried that he might
be fired even for more expressly religious expressions of his
anti-same-sex-marriage views, no?  Such religious expression may be no less
potentially disruptive than Buell's expression, and in some situations may
be more potentially disruptive, for instance if the teacher says this in a
medium that is intentionally opened to all potential listeners (e.g., a
rally, a letter to the editor, etc.).

 

To be sure, many of the people who oppose same-sex marriage do so for
nonreligious reasons.  (Opposition to same-sex marriage is more prevalent
among religious people, but even some nonreligious people take that view.)
But the law-of-government-and-religion link, it seems to me, is the risk
that particular religious groups will find their expression of their
religiously motivated views (again, whether expressly cast in terms of
religion or not) will lead to firings and more.

 

Eugene

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 11:25 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

 

I wasn't meaning to imply that the analysis was easy, just that familiar
doctrinal machinery exists in the form of the public employee speech
doctrine.  If the teacher where to sue alleging violation of his First
Amendment rights, are you implying that he would/could/should make some
argument other than under Pickering?  

 

Same-sex marriage is surely one of the most prominent public controversies,
but are you suggesting that somehow takes it out of the usual public
employee speech framework?  (You posted this on a religion list, but is
there any indication that the teacher was speaking in any religious context
or that some question of religious liberty is implicated?  Other than a
generic reference to "sin," the comments reported appear to be rather crude
garden-v

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Brownstein, Alan]

Mark raises valid concerns.  The questions Steve asks seem to be Tinker 
questions. I think the Tinker “material disruption” standard almost unavoidably 
creates some risk of a heckler’s veto. It also is implicitly biased against 
unpopular speech which challenges conventional orthodoxy because such speech is 
far more likely to be disruptive than conventional messages expressing 
generally accepted viewpoints.

It may be that these weaknesses in Tinker have to be accepted because of the 
school’s legitimate need to maintain order in an institutional setting 
involving hundreds of minors. But these concerns suggest that we should be wary 
of extending a Tinker like standard to expression by adults expressed outside 
of the school environment.

Still, that wariness may have some limits. If a teacher in a racially 
integrated school with a history of racial incidents was the recruitment 
officer for the local KKK chapter and used social networking as a recruitment 
tool, would the school be justified in refusing to renew his contract?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, August 19, 2011 9:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

There is much to be said for Steve’s point of view.

On the other hand, consider the implications. What about a teacher whose blog 
severely criticizes creationists (“I want to puke when I hear that Gov. Perry 
wants to have schools teach creationism) or who says that religion sickens him 
or who says that anyone who supports the Iraq war or that 911 was a US plot to 
justify invading Afghanistan and Iraq etc.? Doesn’t this also lead to a 
heckler’s veto, in which students who don’t like the teacher’s point of view 
will protest and then it will be claimed that the Pickering/Connick analysis 
justifies taking action against the teacher?

How would this work in the context of academic freedom in a university?

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

Doesn't this call for a straightforward Pickering/Connick analysis? I'm 
assuming Garcetti wouldn't apply, unless the teacher used Facebook to 
communicate officially with students. I lean strongly in favor of protecting 
the teacher's speech which, crude as it was, was clearly on a matter of public 
concern. So isn't the key inquiry whether the employer can demonstrate that 
this particular speech was harmful to the good order and discipline of the 
school? Seems to me there would be lots of facts we'd need to know. Was the 
post readable by anyone or just the teacher's Facebook friends? What's the 
climate for gay students at the school? Could it be argued that this post 
realistically (without the fuss caused by the suspension itself) would have 
caused harm to gay students or disrupted the school generally?

Steve Sanders
University of Michigan Law School

On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
Any thoughts on this?

http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/

Lake County Schools Communications Officer Chris Patton said school officials 
received a complaint Tuesday about the content on Mount Dora High School 
teacher Jerry Buell's personal Facebook page  CNN affiliate Central Florida 
News 13 reported that a status post on it said, "I'm watching the news, eating 
dinner, when the story about the New York okaying same sex unions came on and I 
almost threw up."

Patton would not confirm the content of the post, but he said Lake County 
officials are taking the matter very seriously.
"We began to review the code of ethics violations immediately and yesterday 
afternoon temporarily reassigned the teacher pending the outcome of the 
investigation," Patton told CNN Thursday

The newspaper said that in the same July 25 post, Buell said same-sex marriages 
were part of a "cesspool" and were a "sin." ...

Buell, a teacher for more than 26 years [and a former “teacher of the year”], 
served as the Social Studies Department chair at Mount Dora and taught American 
history and government, according to the high school's website
___
To post, send message to 
Religionlaw@lists.ucla.edu
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are p

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Scarberry, Mark]

Steve's and my messages crossed, and I do think we are in agreement.

On the dangers of posting too quickly, I see that I left some words ("is a 
murderer") out of my previous message. I've corrected them below in *bold* font 
below.

If this teacher can be disciplined, then perhaps other students should look at 
other teachers' facebook pages and blogs to see what they could be upset about 
and then hold protests. If the school doesn't take similar action, then it 
becomes clear that the school is engaging in viewpoint discrimination if it 
relies on student reaction as a justification. That could lead the school to 
decide that it ought to be on the side of free expression, even of unpopular 
ideas, by teachers in their non-teaching lives.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 12:08 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

Mark, I appreciate your counterexample.  As may have been clarified by my 
response to Eugene, it's not an "on other other hand" sort of thing -- I think 
you and I actually are in agreement.  I too worry that it's too easy to stifle 
public employee speech rights.  All I'm saying is, we're stuck with the current 
doctrine.   The question is, how should we make it better?

Interesting question about academic freedom if the teacher were a professor.  
Courts have generally viewed college campuses as more robust speech 
environments than K-12 settings, on the principles that uninhibited debate is 
critical to academic life and that college students are not (or at least should 
not be) the kind of sensitive plants that younger students can be.  As a 
Garcetti matter, this particular speech would seem to have absolutely nothing 
to do with a teacher's official responsibilities, and as a Pickering matter I 
would hope no public university would argue that it somehow interfered with its 
operations and good order.  Thus, the speech should simply receive the same 
protection as that of any other citizen.

One problem we're seeing is that courts seem willing to sweep a lot of faculty 
speech under the heading of "official duties" and thereby make it subject to 
employer discipline.  I'm co-counsel for the AAUP as amicus in a pending 7th 
Circuit case that illustrates the problem.  (The brief is at 
http://www-personal.umich.edu/~stevesan/CapeheartAAUPBrief.pdf).  The professor 
here engaged in a campus protest, something we might assume is core First 
Amendment speech, yet the district court construed it has part of her 
professorial duties.

Steve


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, August 19, 2011 9:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post
There is much to be said for Steve's point of view.

On the other hand, consider the implications. What about a teacher whose blog 
severely criticizes creationists ("I want to puke when I hear that Gov. Perry 
wants to have schools teach creationism) or who says that religion sickens him 
or who says that anyone who supports the Iraq war *is a murderer* or that 911 
was a US plot to justify invading Afghanistan and Iraq etc.? Doesn't this also 
lead to a heckler's veto, in which students who don't like the teacher's point 
of view will protest and then it will be claimed that the Pickering/Connick 
analysis justifies taking action against the teacher?

How would this work in the context of academic freedom in a university?

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

Doesn't this call for a straightforward Pickering/Connick analysis? I'm 
assuming Garcetti wouldn't apply, unless the teacher used Facebook to 
communicate officially with students. I lean strongly in favor of protecting 
the teacher's speech which, crude as it was, was clearly on a matter of public 
concern. So isn't the key inquiry whether the employer can demonstrate that 
this particular speech was harmful to the good order and discipline of the 
school? Seems to me there would be lots of facts we'd need to know. Was the 
post readable by anyone or just the teacher's Facebook friends? What's the 
climate for gay students at the school? Could it be argued that this post 
realistically (without the fuss caused by the suspension itself) woul

Life or Death Free Exercise Case?

[Christopher Lund]

I just finished reading this case, Stinemetz v. Kansas Health Policy
Authority, __P.3d __, 2011 WL 1662788 (Kan. App. May 4, 2011), available
here:
http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2011/20110504/10
5366.pdf.  It's one of the most striking Free Exercise Clause cases I've
ever read.  There aren't too many free exercise cases that are literally
matters of life-and-death.  I think this one is.

 

Here's the short of it.  Mary Stinemetz is on Medicaid and needs a liver
transplant.  She's a Jehovah's Witness and refuses any blood transfusion.
But there is this new-fangled medical procedure called a bloodless liver
transplant, which doesn't involve a blood transfusion.  And it's actually
cheaper than the regular liver-transplant procedure.  Mary, however, lives
in Kansas and Kansas doesn't have any medical facility doing bloodless
liver transplants.  Nebraska has such a hospital.  But Kansas's Medicaid
refuses to reimburse for that.  The rule is that Kansas's Medicaid will
only reimburse for out-of-state procedures that are "medical necessities."
And this isn't a medical necessity, Kansas says.  This is just Mary's
religious preference. 

 

Stinemetz wins the case under the Free Exercise Clause (and Kansas's
similar state constitutional provision).  The rule may be neutral and
generally applicable, but Kansas statutes gave the Kansas Medicaid
director discretion to approve reimbursement for out-of-state procedures
even when they aren't medical necessities.  This discretion triggers the
"individualized exemption" part of Smith and entitles Stinemetz to her
procedure.

 

This is, as I said, one of the most striking Free Exercise cases I have
ever read.  Mary Stinemetz nearly dies here.  (The case is handled on an
expedited basis, because she's going through liver failure.)   And why
does she nearly die?  Why won't Kansas let her have this procedure?  Who
knows?  It's not cost.  Remember the out-of-state bloodless procedure will
cost less than the in-state procedure.  I can't see any reason at all.
It's just a bureaucracy hopelessly wedded to its own formal rules.  The
Kansas court, by the way, couldn't see any reason here either.  See slip
op. at 27 ("Here, the [state agency] has failed to suggest any state
interest, much less a compelling interest, for denying Stinemetz' request
for prior authorization for the out-of-state liver transplant.")

 

Maybe the "individualized exemption" analysis is just an end-run around
Smith.  Maybe in the future Smith will get carried to its ultimate
conclusion and we won't give exemptions in cases like these.  But I am not
convinced that would be a good thing.


Best,

Chris

___

Christopher C. Lund

Assistant Professor of Law

Wayne State University Law School

471 West Palmer St.

Detroit, MI  48202

l...@wayne.edu

(313) 577-4046 (phone)

(313) 577-9016 (fax)

Papers:  
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

 

___
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Conference: The Competing Claims of Law & Religion: Who Should Influence Whom? Pepperdine Univ. School of Law, Feb. 23-25, 2012

[Scarberry, Mark]

With apologies for those of you who may receive multiple copies of this 
announcement due to membership on another list (or on both the conlawprof and 
religionlaw list).
Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667


Call For Paper Proposals / Save the Date Notice

“The Competing Claims of Law & Religion: Who Should Influence Whom?”
Pepperdine University School of Law, Malibu, California
February 23-25, 2012

On February 23-25, Pepperdine will host the third Religious Legal Theory 
conference.  We will deal with: “The Competing Claims of Law & Religion: Who 
Should Influence Whom?”  Some speakers will address the topic as a matter of 
constitutional law, some as a matter of “good citizenship,” some as a matter of 
religious faith.  The speakers who have already agreed to speak at the 
conference include:


Abdullahi Ahmed An-Na‛im (Emory)

Caroline Corbin (Miami)
Marc DeGirolami (St. John’s)

Mohammad Fadel (Toronto)
Marie Failinger (Hamline)
Chad Flanders (St. Louis)
Richard Garnett (Notre Dame)
Fred Gedicks (BYU)
Michael Helfand (Pepperdine)
James Davison Hunter (Virginia)
Andrew Koppelman (Northwestern)
Samuel Levine (Touro)

Barry McDonald (Pepperdine)
Michael Moreland (Villanova)
David Opderbeck (Seton Hall)
Michael Paulsen (St. Thomas)
Lisa Shaw Roy (Mississippi)
Shelley Saxer (Pepperdine)
Mark Scarberry (Pepperdine)
Ayelet Shachar (Toronto) (acceptance pending)
Steven Smith (San Diego)
Suzanne Last Stone (Cardozo)
Nelson Tebbe (Brooklyn)

Eugene Volokh (UCLA)




Please join us.  Details will appear at: http://law.pepperdine.edu/nootbaar/

If you would like to speak at the conference or organize a panel, we welcome 
paper and panel proposals on any law and religion topic.  Please submit 
proposals by September 15, 2011 to:   
lauren.hart...@pepperdine.edu

The conference will be the basis of a spring 2012 Pepperdine Law Review 
symposium edition.   Papers submitted by January 7, 2012 will be considered by 
the law review for publication.  Submission of presentations is optional and 
publication is not guaranteed.

This conference is sponsored by the Nootbaar Institute on Law, Religion, and 
Ethics and co-sponsored by the Glazer Institute for Jewish Studies.  If you 
have questions about the substance of the conference, contact 
robert.coch...@pepperdine.edu or 
michael.helf...@pepperdine.edu  For 
questions about the details of the conference, contact 
lauren.hart...@pepperdine.edu

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Steve Sanders]

Mark, I appreciate your counterexample.  As may have been clarified by my
response to Eugene, it's not an "on other other hand" sort of thing -- I
think you and I actually are in agreement.  I too worry that it's too easy
to stifle public employee speech rights.  All I'm saying is, we're stuck
with the current doctrine.   The question is, how should we make it better?

 
Interesting question about academic freedom if the teacher were a professor.
Courts have generally viewed college campuses as more robust speech
environments than K-12 settings, on the principles that uninhibited debate
is critical to academic life and that college students are not (or at least
should not be) the kind of sensitive plants that younger students can be.
As a Garcetti matter, this particular speech would seem to have absolutely
nothing to do with a teacher's official responsibilities, and as a Pickering
matter I would hope no public university would argue that it somehow
interfered with its operations and good order.  Thus, the speech should
simply receive the same protection as that of any other citizen.  
 
One problem we're seeing is that courts seem willing to sweep a lot of
faculty speech under the heading of "official duties" and thereby make it
subject to employer discipline.  I'm co-counsel for the AAUP as amicus in a
pending 7th Circuit case that illustrates the problem.  (The brief is at

http://www-personal.umich.edu/~stevesan/CapeheartAAUPBrief.pdf).  The
professor here engaged in a campus protest, something we might assume is
core First Amendment speech, yet the district court construed it has part of
her professorial duties.
 
Steve


  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, August 19, 2011 9:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post



There is much to be said for Steve's point of view.

 

On the other hand, consider the implications. What about a teacher whose
blog severely criticizes creationists ("I want to puke when I hear that Gov.
Perry wants to have schools teach creationism) or who says that religion
sickens him or who says that anyone who supports the Iraq war or that 911
was a US plot to justify invading Afghanistan and Iraq etc.? Doesn't this
also lead to a heckler's veto, in which students who don't like the
teacher's point of view will protest and then it will be claimed that the
Pickering/Connick analysis justifies taking action against the teacher?

 

How would this work in the context of academic freedom in a university?

 

Mark S. Scarberry

Professor of Law

Pepperdine Univ. School of Law

Malibu, CA 90263

(310) 506-4667

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

 

Doesn't this call for a straightforward Pickering/Connick analysis? I'm
assuming Garcetti wouldn't apply, unless the teacher used Facebook to
communicate officially with students. I lean strongly in favor of protecting
the teacher's speech which, crude as it was, was clearly on a matter of
public concern. So isn't the key inquiry whether the employer can
demonstrate that this particular speech was harmful to the good order and
discipline of the school? Seems to me there would be lots of facts we'd need
to know. Was the post readable by anyone or just the teacher's Facebook
friends? What's the climate for gay students at the school? Could it be
argued that this post realistically (without the fuss caused by the
suspension itself) would have caused harm to gay students or disrupted the
school generally?

 

Steve Sanders

University of Michigan Law School

On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene"  wrote:

Any thoughts on this?

 

http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/

 

Lake County Schools Communications Officer Chris Patton said school
officials received a complaint Tuesday about the content on Mount Dora High
School teacher Jerry Buell's personal Facebook page  CNN affiliate
Central Florida News 13 reported that a status post on it said, "I'm
watching the news, eating dinner, when the story about the New York okaying
same sex unions came on and I almost threw up."

 

Patton would not confirm the content of the post, but he said Lake County
officials are taking the matter very seriously.

"We began to review the code of ethics violations immediately and yesterday
afternoon temporarily reassigned the teacher pending the outcome of the
investigation," Patton told CNN Thursday

 

The newspaper said that in the same July 25 post, Buell said same-sex
marriages were part of a "cesspool" and wer

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Volokh, Eugene]

I agree that as a doctrinal matter Pickering is the rule, for 
speech about same-sex marriage as well as for speech about other topics.  But 
Pickering's "usual public employee speech framework" requires an inquiry into 
the magnitude of the "the interests of the teacher, as a citizen, in commenting 
upon matters of public concern" - and, I take it, the interests of society more 
broadly in allowing such speech (cf. United States v. National Treasure 
Employees Union).  The question is how we should evaluate this interest when it 
comes to speech on such prominent public controversies.

As to the link to religion:  One question in the debate about 
gay rights is the degree to which gays and lesbians will be free to build their 
families, and have access to government-provided benefits connected to 
marriage.  (I actually support such claims.)  But another is the degree to 
which those who belong to religious groups that oppose same-sex marriage and 
oppose homosexuality will find that their expression of their religious beliefs 
- whether cast in expressly religious terms or not -- is not only seen by 
others as "rather crude garden-variety bigotry" but is also used as a basis for 
being fired from government jobs, being disciplined by their K-12 schools or 
colleges, being subjected to potential civil liability for "hostile work 
environment" harassment.

After all, I take it that a public schoolteacher who sees Buell disciplined or 
fired for his speech would likewise be reasonably worried that he might be 
fired even for more expressly religious expressions of his 
anti-same-sex-marriage views, no?  Such religious expression may be no less 
potentially disruptive than Buell's expression, and in some situations may be 
more potentially disruptive, for instance if the teacher says this in a medium 
that is intentionally opened to all potential listeners (e.g., a rally, a 
letter to the editor, etc.).

To be sure, many of the people who oppose same-sex marriage do so for 
nonreligious reasons.  (Opposition to same-sex marriage is more prevalent among 
religious people, but even some nonreligious people take that view.)  But the 
law-of-government-and-religion link, it seems to me, is the risk that 
particular religious groups will find their expression of their religiously 
motivated views (again, whether expressly cast in terms of religion or not) 
will lead to firings and more.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 11:25 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

I wasn't meaning to imply that the analysis was easy, just that familiar 
doctrinal machinery exists in the form of the public employee speech doctrine.  
If the teacher where to sue alleging violation of his First Amendment rights, 
are you implying that he would/could/should make some argument other than under 
Pickering?

Same-sex marriage is surely one of the most prominent public controversies, but 
are you suggesting that somehow takes it out of the usual public employee 
speech framework?  (You posted this on a religion list, but is there any 
indication that the teacher was speaking in any religious context or that some 
question of religious liberty is implicated?  Other than a generic reference to 
"sin," the comments reported appear to be rather crude garden-variety bigotry, 
not religious speech.)

I am sympathetic to the teacher and his speech rights and, based only on the 
reported facts, I think the school's action is open to serious question.  The 
difficulties Eugene describes seem to be inherent in the doctrine the Court has 
provided, not unique to this particular problem. And I believe there is 
"particular danger or impropriety in government practices that essentially 
pressure government employees to shut ... at least if they are speaking on one 
particular side" when we're talking about any topic of public concern, not just 
this one.

Steve


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 8:43 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post
I'm not sure that there is such a thing as "a straightforward 
Pickering ... analysis."  "Balanc[ing]" "the interests of the teacher, as a 
citizen, in commenting upon matters of public concern" with "the interest of 
the State, as an employer, in promoting the efficiency of the public services 
it performs through its employees" strikes me as generally far from 
straightforward:  It requires "balancing" two hard-to-quantify things that, on 
top of the difficulty of quantification, are different enough to be largely 
incommensurable.

Bu

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Scarberry, Mark]

There is much to be said for Steve’s point of view.

On the other hand, consider the implications. What about a teacher whose blog 
severely criticizes creationists (“I want to puke when I hear that Gov. Perry 
wants to have schools teach creationism) or who says that religion sickens him 
or who says that anyone who supports the Iraq war or that 911 was a US plot to 
justify invading Afghanistan and Iraq etc.? Doesn’t this also lead to a 
heckler’s veto, in which students who don’t like the teacher’s point of view 
will protest and then it will be claimed that the Pickering/Connick analysis 
justifies taking action against the teacher?

How would this work in the context of academic freedom in a university?

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

Doesn't this call for a straightforward Pickering/Connick analysis? I'm 
assuming Garcetti wouldn't apply, unless the teacher used Facebook to 
communicate officially with students. I lean strongly in favor of protecting 
the teacher's speech which, crude as it was, was clearly on a matter of public 
concern. So isn't the key inquiry whether the employer can demonstrate that 
this particular speech was harmful to the good order and discipline of the 
school? Seems to me there would be lots of facts we'd need to know. Was the 
post readable by anyone or just the teacher's Facebook friends? What's the 
climate for gay students at the school? Could it be argued that this post 
realistically (without the fuss caused by the suspension itself) would have 
caused harm to gay students or disrupted the school generally?

Steve Sanders
University of Michigan Law School

On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
Any thoughts on this?

http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/

Lake County Schools Communications Officer Chris Patton said school officials 
received a complaint Tuesday about the content on Mount Dora High School 
teacher Jerry Buell's personal Facebook page  CNN affiliate Central Florida 
News 13 reported that a status post on it said, "I'm watching the news, eating 
dinner, when the story about the New York okaying same sex unions came on and I 
almost threw up."

Patton would not confirm the content of the post, but he said Lake County 
officials are taking the matter very seriously.
"We began to review the code of ethics violations immediately and yesterday 
afternoon temporarily reassigned the teacher pending the outcome of the 
investigation," Patton told CNN Thursday

The newspaper said that in the same July 25 post, Buell said same-sex marriages 
were part of a "cesspool" and were a "sin." ...

Buell, a teacher for more than 26 years [and a former “teacher of the year”], 
served as the Social Studies Department chair at Mount Dora and taught American 
history and government, according to the high school's website
___
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___
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Steve Sanders]

I wasn't meaning to imply that the analysis was easy, just that familiar
doctrinal machinery exists in the form of the public employee speech
doctrine.  If the teacher where to sue alleging violation of his First
Amendment rights, are you implying that he would/could/should make some
argument other than under Pickering?  
 
Same-sex marriage is surely one of the most prominent public controversies,
but are you suggesting that somehow takes it out of the usual public
employee speech framework?  (You posted this on a religion list, but is
there any indication that the teacher was speaking in any religious context
or that some question of religious liberty is implicated?  Other than a
generic reference to "sin," the comments reported appear to be rather crude
garden-variety bigotry, not religious speech.)  
 
I am sympathetic to the teacher and his speech rights and, based only on the
reported facts, I think the school's action is open to serious question.
The difficulties Eugene describes seem to be inherent in the doctrine the
Court has provided, not unique to this particular problem. And I believe
there is "particular danger or impropriety in government practices that
essentially pressure government employees to shut ... at least if they are
speaking on one particular side" when we're talking about any topic of
public concern, not just this one.  
 
Steve


  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 8:43 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post



I'm not sure that there is such a thing as "a
straightforward Pickering ... analysis."  "Balanc[ing]" "the interests of
the teacher, as a citizen, in commenting upon matters of public concern"
with "the interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees" strikes me as
generally far from straightforward:  It requires "balancing" two
hard-to-quantify things that, on top of the difficulty of quantification,
are different enough to be largely incommensurable.

 

But beyond this, it seems to me that the particular problem
here is:  How do we evaluate "the interests" of citizens "in commenting upon
matters of public concern" in a situation like this, where the issue -
same-sex marriage - is one of the most prominent social, religious, and
political topics of our time?  Is there particular danger or impropriety in
government practices that essentially pressure government employees to shut
up on this sort of topic, at least if they are speaking on one particular
side of the topic?

 

Eugene

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

 

Doesn't this call for a straightforward Pickering/Connick analysis? I'm
assuming Garcetti wouldn't apply, unless the teacher used Facebook to
communicate officially with students. I lean strongly in favor of protecting
the teacher's speech which, crude as it was, was clearly on a matter of
public concern. So isn't the key inquiry whether the employer can
demonstrate that this particular speech was harmful to the good order and
discipline of the school? Seems to me there would be lots of facts we'd need
to know. Was the post readable by anyone or just the teacher's Facebook
friends? What's the climate for gay students at the school? Could it be
argued that this post realistically (without the fuss caused by the
suspension itself) would have caused harm to gay students or disrupted the
school generally?

 

Steve Sanders

University of Michigan Law School

On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene"  wrote:

Any thoughts on this?

 

http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/

 

Lake County Schools Communications Officer Chris Patton said school
officials received a complaint Tuesday about the content on Mount Dora High
School teacher Jerry Buell's personal Facebook page  CNN affiliate
Central Florida News 13 reported that a status post on it said, "I'm
watching the news, eating dinner, when the story about the New York okaying
same sex unions came on and I almost threw up."

 

Patton would not confirm the content of the post, but he said Lake County
officials are taking the matter very seriously.

"We began to review the code of ethics violations immediately and yesterday
afternoon temporarily reassigned the teacher pending the outcome of the
investigation," Patton told CNN Thursday

 

The newspaper said that in the same July 25 post, Buell said same-sex
marriages were part of a "cesspool" and were a "sin." ...

 

Buell, a teacher for mor

RE: Teacher suspended for anti-same-sex-marraige Facebook post

[b...@jmcenter.org]

A good article appeared on this subject on Verdict (Justia) two days ago.
See"Can Public School Students Constitutionally Be Punished for Their Off-Campus
Comments on Social-Networking Sites or Blogs?" at 
[http://verdict.justia.com/2011/08/17/can-public-school-students-constitutionally-be-punished-for-their-off-campus-comments-on-social-networking-sites-or-blogs/]

[http://verdict.justia.com/2011/08/17/can-public-school-students-constitutionally-be-punished-for-their-off-campus-comments-on-social-networking-sites-or-blogs/]
http://verdict.justia.com/2011/08/17/can-public-school-students-constitutionally-be-punished-for-their-off-campus-comments-on-social-networking-sites-or-blogs/
[http://verdict.justia.com/2011/08/17/can-public-school-students-constitutionally-be-punished-for-their-off-campus-comments-on-social-networking-sites-or-blogs/]

[http://verdict.justia.com/2011/08/17/can-public-school-students-constitutionally-be-punished-for-their-off-campus-comments-on-social-networking-sites-or-blogs/]
 
It brings back bad memories of Morse v. Frederick (2007). Such an anti-liberty
case. 
 
Balancing again? Oh my the SC is too weighted in favor of government. 
 
While I disagree with Jerry Buell's viewpoint, his comments (a) were made on his
own computer on his own time in the privacy of his home, (b) on a topic of
current public concern, (c) were brief and relatively mild (compared to hate
speech) and (d) not targeted at any specific person at Mount Dora High School --
leads me to come down squarely on the side of the teacher's right of free
speech. Long live Tinker. 
 
Bob 



On August 19, 2011 at 12:51 AM "Volokh, Eugene"  wrote:


> 
>     I should note that the page now says he was “reassigned” while
> the school investigates the matter, though other press accounts report is as
> “suspended” (and my recollection is that the CNN page also said that when I
> posted about it, though I might be mistaken on that).
>  
>     Eugene
>  
> 
> 
> 
> From:religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf OfVolokh, Eugene
> Sent:Thursday, August 18, 2011 4:56 PM
> To:Law & Religion issues for Law Academics
> Subject:Teacher suspended for anti-same-sex-marraige Facebook post
>  
> Any thoughts on this?
>  
> http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/
>  
> Lake County Schools Communications Officer Chris Patton said school officials
> received a complaint Tuesday about the content on Mount Dora High School
> teacher Jerry Buell's personal Facebook page  CNN affiliate Central
> Florida News 13 reported that a status post on it said, "I'm watching the
> news, eating dinner, when the story about the New York okaying same sex unions
> came on and I almost threw up."
>  
> Patton would not confirm the content of the post, but he said Lake County
> officials are taking the matter very seriously.
> "We began to review the code of ethics violations immediately and yesterday
> afternoon temporarily reassigned the teacher pending the outcome of the
> investigation," Patton told CNN Thursday
>  
> The newspaper said that in the same July 25 post, Buell said same-sex
> marriages were part of a "cesspool" and were a "sin." ...
>  
> Buell, a teacher for more than 26 years [and a former “teacher of the year”],
> served as the Social Studies Department chair at Mount Dora and taught
> American history and government, according to the high school's website
>___
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RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Volokh, Eugene]

I’m not sure that there is such a thing as “a straightforward 
Pickering ... analysis.”  “Balanc[ing]” “the interests of the teacher, as a 
citizen, in commenting upon matters of public concern” with “the interest of 
the State, as an employer, in promoting the efficiency of the public services 
it performs through its employees” strikes me as generally far from 
straightforward:  It requires “balancing” two hard-to-quantify things that, on 
top of the difficulty of quantification, are different enough to be largely 
incommensurable.

But beyond this, it seems to me that the particular problem 
here is:  How do we evaluate “the interests” of citizens “in commenting upon 
matters of public concern” in a situation like this, where the issue – same-sex 
marriage – is one of the most prominent social, religious, and political topics 
of our time?  Is there particular danger or impropriety in government practices 
that essentially pressure government employees to shut up on this sort of 
topic, at least if they are speaking on one particular side of the topic?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

Doesn't this call for a straightforward Pickering/Connick analysis? I'm 
assuming Garcetti wouldn't apply, unless the teacher used Facebook to 
communicate officially with students. I lean strongly in favor of protecting 
the teacher's speech which, crude as it was, was clearly on a matter of public 
concern. So isn't the key inquiry whether the employer can demonstrate that 
this particular speech was harmful to the good order and discipline of the 
school? Seems to me there would be lots of facts we'd need to know. Was the 
post readable by anyone or just the teacher's Facebook friends? What's the 
climate for gay students at the school? Could it be argued that this post 
realistically (without the fuss caused by the suspension itself) would have 
caused harm to gay students or disrupted the school generally?

Steve Sanders
University of Michigan Law School

On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
Any thoughts on this?

http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/

Lake County Schools Communications Officer Chris Patton said school officials 
received a complaint Tuesday about the content on Mount Dora High School 
teacher Jerry Buell's personal Facebook page  CNN affiliate Central Florida 
News 13 reported that a status post on it said, "I'm watching the news, eating 
dinner, when the story about the New York okaying same sex unions came on and I 
almost threw up."

Patton would not confirm the content of the post, but he said Lake County 
officials are taking the matter very seriously.
"We began to review the code of ethics violations immediately and yesterday 
afternoon temporarily reassigned the teacher pending the outcome of the 
investigation," Patton told CNN Thursday

The newspaper said that in the same July 25 post, Buell said same-sex marriages 
were part of a "cesspool" and were a "sin." ...

Buell, a teacher for more than 26 years [and a former “teacher of the year”], 
served as the Social Studies Department chair at Mount Dora and taught American 
history and government, according to the high school's website
___
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Religionlaw@lists.ucla.edu
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Re: Teacher suspended for anti-same-sex-marraige Facebook post

[Steve Sanders]

Doesn't this call for a straightforward Pickering/Connick analysis? I'm 
assuming Garcetti wouldn't apply, unless the teacher used Facebook to 
communicate officially with students. I lean strongly in favor of protecting 
the teacher's speech which, crude as it was, was clearly on a matter of public 
concern. So isn't the key inquiry whether the employer can demonstrate that 
this particular speech was harmful to the good order and discipline of the 
school? Seems to me there would be lots of facts we'd need to know. Was the 
post readable by anyone or just the teacher's Facebook friends? What's the 
climate for gay students at the school? Could it be argued that this post 
realistically (without the fuss caused by the suspension itself) would have 
caused harm to gay students or disrupted the school generally?

Steve Sanders
University of Michigan Law School

On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene"  wrote:

> Any thoughts on this?
> 
>  
> 
> http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/
> 
>  
> 
> Lake County Schools Communications Officer Chris Patton said school officials 
> received a complaint Tuesday about the content on Mount Dora High School 
> teacher Jerry Buell's personal Facebook page  CNN affiliate Central 
> Florida News 13 reported that a status post on it said, "I'm watching the 
> news, eating dinner, when the story about the New York okaying same sex 
> unions came on and I almost threw up."
> 
>  
> 
> Patton would not confirm the content of the post, but he said Lake County 
> officials are taking the matter very seriously.
> 
> "We began to review the code of ethics violations immediately and yesterday 
> afternoon temporarily reassigned the teacher pending the outcome of the 
> investigation," Patton told CNN Thursday
> 
>  
> 
> The newspaper said that in the same July 25 post, Buell said same-sex 
> marriages were part of a "cesspool" and were a "sin." ...
> 
>  
> 
> Buell, a teacher for more than 26 years [and a former “teacher of the year”], 
> served as the Social Studies Department chair at Mount Dora and taught 
> American history and government, according to the high school's website
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.