As a follow up, I lost track of the arguments
posted about a year ago in favor of the government's requiring libraries and
booksellers to disclose information about an individual's reading
choices. As I recall, there were a number of people suggesting "you are
what you read" and therefore the government had a sufficiently strong interest
in combatting terrorism to justify the inquiries absent probable cause. .
. .I found that argument not to be very persuasive at all, and empirically
suspect.
But given the Rev. Paul Shanley's attendance and
support of NAMBLA meetings, and his guilt for molesting many boys, and what we
do know about pedophiles thus far, one could see whay parents would justifiably
be nervous and not want their children exposed to an admitted pedophile who says
he "won't abuse (or report abuse)."
Repsectfully,
Lynne
----- Original Message -----
Sent: Friday, July 18, 2003 3:54 PM
Subject: Re: Membership in Disfavored Organization as Grounds for
Dismissal as School ...
The discussion is interesting, and now the facts have change
materially.
Mark adds, in part: "...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."
***
It seems to me that passively
belonging to an organization is on one end of the spectrum while actively
advocating, instructing or promulgating instructions on seducing children,
advising how to maintain a false front, etc., are all activities, not just the
beliefs of a curious mind. My reference to the Inquisition was to the
notion of an official inquiring agent vacuum cleaning a subject's mind not only
for beliefs but for the implications of beliefs, a la the trial of Joan of
Arc. I'm not sure I care or whether it is really relevant what the teacher
reads in his spare time. Advocating the sexual use of children, however,
is way too far down the road for comfort.
I think there is such a thing as
the legitimate fear that a parent has for the health, safety, morals
and welfare of one's child. Parents are constitutionally entitled,
even duty bound, to influence the moral, educational, and healthful
development of their children. That's a major reason many parents opt for
a parochial school education at considerable cost. Meyers (German
language), Pierce (Catholic school) and Yoder (Amish, no compulsory h.s. ed.)
come to mind.
The idea I'm getting is that
parents and school officials here have lost all confidence in the teacher now
that his actual activities have come to light. I think the fears of the
parents in light of his willingness to proselytize the seduction of
children puts them in the 'reasonable generality' category, not the
'prejudiced stereotype' category. The reasonable fears of parents carry a
lot of weight. And how judge that? We make a lot of judgments based
on objective facts in our society, and that seems to be what the judge has
done.
I'd view the teacher
here more as a potential time bomb waiting to act out when the opportunity
allowed. To put it another way, I wouldn't want to take the risk given
what appears to be known. This virtually defines 'no confidence' in his
ability to teach, meaning lead children, effectively.
I find that a more compelling
reason, based on fact and behavior, to terminate, than the idea that parents and
children may go into a tizzy over a teacher's beliefs or the magazines he
reads. If that were considered a reasonable justification, we'd have
a few alarmist or paranoid parents calling the shots as to public
employment.
Do parents have the right to insist
that when they have reasonably lost confidence in a teacher he has to
be let go? I don't see why not. Let's say an avowed Nazi winds up
teaching in a Hebrew school, out of dire economic necessity or just
perverseness. I say he's gone on a no confidence basis.
Does it make a difference whether
the school is public, private, or parochial? The more the offending belief
system approaches the core beliefs of the school community, the better the
argument in favor of a vote of 'reasonable no confidence' militates in favor of
termination, I should expect.
I would't use the term
'Inquisition' to a process which looked at behavior and allowed the fact finder
to draw his, her, or their own conclusions. A process which interrogates
the inner recesses of a teacher's mind on pain of loss of public employment
(assuming public school employment), however, where there's been no
demonstration of risky behavior seems inquisitorial, small "i" this time.
How much of that do we wish to encourage?
----- Original Message -----
Sent: 7/18/2003 10:49:49 AM
Subject: Re: Membership in Disfavored
Organization as Grounds for Dismissal as School ...
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 associat ion 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
Pickeri!
ng, and, if so, can it be reconciled
with cases such as Robel, Greene v.
McElroy, McDaniel v.
Paty, etc.?
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 activi! ty is
protected and move to the next part of the
Pickering test.
----- Original Message -----
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 th!
e firing. It > also suggests that keeping Melzer on as a teacher could
be dangerous to the > students, indirectly. > > Mark
Scarberry > Pepperdine >
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