In the Matter of Richard Santer, Respondent,v.Board of Education of East Meadow Union Free School District, Appellant.

Brief

N.Y.February 19, 2014

To Be Argued By: GEORGE B. PAUTA Time Requested: 20 Minutes Nassau County Clerk’s Index No. 001997/10 Appellate Division-Second Department Docket No. 2010-11006 APL-2013-00032 Court of Appeals STATE OF NEW YORK RICHARD SANTER, Petitioner-Respondent, -against- BOARD OF EDUCATION OF THE EAST MEADOW UNION FREE SCHOOL DISTRICT, Respondent-Appellant. BRIEF FOR RESPONDENT-APPELLANT d CRAIG R. BENSON, ESQ. GEORGE B. PAUTA, ESQ. ETHAN D. BALSAM, ESQ. LITTLER MENDELSON, P.C. 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant June 24, 2013 DISCLOSURE STATEMENT Pursuant to 22 NYCRR 500.1(f), Respondent-Appellant Board of Education of the East Meadow Union Free School District, by and through its undersigned counsel, Littler Mendelson, P.C., affirms that it is a municipal corporation organized under the laws of the State of New York and has no parents, subsidiaries or affiliates. Date: June 24, 2013 New York, New York Craig R. Benson George B. Pauta Ethan D. Balsam LITTLER MENDELSON A Professional Corporation 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant Board of Education of the East Meadow Union Free School District /s/ George B. Pauta STATEMENT OF RELATED LITIGATION Pursuant to 22 NYCRR 500.13(a), Respondent-Appellant Board of Education of the East Meadow Union Free School District, by and through its undersigned counsel, Littler Mendelson, P.C., provides the following statement of related litigation: The Board of Education of the East Meadow Union Free School District commenced Education Law § 3020-a disciplinary proceedings against six teachers, including Petitioner-Respondent Richard Santer, for their involvement in the March 2, 2007 parking activity. Notably, all of the teachers charged have been found culpable of misconduct by the hearing officer presiding over their respective disciplinary proceedings. To the extent that any of those teachers have subsequently attempted to have their misconduct findings vacated, with the exception of Petitioner-Respondent, they have been unsuccessful. See e.g., Matter of Trupiano v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 89 A.D.3d 1030 (2d Dep’t 2012); Matter of Galligan v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., Supreme Court, Nassau County, Index. No. 19563/2010 (June 30, 2011); Matter of Lucia v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., Supreme Court, Nassau County, Index No. 1727/2011 (July 1, 2011) (appeal pending).1 Date: June 24, 2013 New York, New York Craig R. Benson George B. Pauta Ethan D. Balsam LITTLER MENDELSON A Professional Corporation 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant Board of Education of the East Meadow Union Free School District 1 On February 15, 2013, the Appellate Division, Second Department conducted oral arguments in connection with Matter of Lucia. Subsequently, by letter dated February 28, 2013, the Appellate Division, Second Department permitted the parties to submit a post-argument letter on the issue of whether the District violated Barbara Lucia’s right to free speech under the First Amendment in light of the Appellate Division, Second Department’s decision in Matter of Santer v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., which is the subject of the instant appeal. Both parties submitted letters and, as of this date, the Appellate Division, Second Department has yet to issue a decision. /s/ George B. Pauta STATEMENT OF JURISDICTION Pursuant to CPLR § 5601(b)(1), an appeal may be taken to the Court of Appeals as a matter of right from an order of the Appellate Division which finally determines an action that directly involves the construction of the Federal Constitution. N.Y. C.P.L.R. § 5601(b)(1) (Consol. 2013); see also Grumet v. Bd. of Educ. of the Kiryas Joel Sch. Dist., 81 N.Y.2d 518, 522 (1993). The constitutional question must be both directly involved in the Appellate Division’s order and substantial. Kachalsky v. Cacace, 15 N.Y.3d 743, 743 (2010). As set forth below, the constitutional questions presented in this appeal meet these two requirements and have been preserved for this Court’s review. See Notice of Appeal, dated January 30, 2013. A. The Appellate Division’s Order Directly Involves Constitutional Questions The Appellate Division’s Decision and Order in this case directly involves constitutional questions, viz. 1) whether Santer’s participation in the parking activity with the intention to jeopardize the safety of students constituted protected speech and, if so, 2) whether the interest in participating in such a hazardous parking activity outweighed the District’s interests in ensuring the safe arrival of its students and timely arrival of its teachers. Because the Appellate Division incorrectly answered the above two questions in the affirmative, it reversed the Supreme Court’s order. 2 B. The Constitutional Questions Involved In This Appeal Are Substantial It is common for school districts (and other public employers) in New York to fail to come to an agreement with their unions for a successor collective bargaining agreement prior to the expiration of the parties’ current agreement. With no ability to strike, school union employees often resort to picketing and other activities to protest the fact that they are working under an expired agreement. The questions presented by this appeal will provide much needed guidance to both school districts and their unions regarding the types of activities that constitute protected speech under the First Amendment, and under what circumstances may a school district discipline an employee for engaging in certain protected activities, where the employee’s intent is to entangle students in the parties’ labor dispute by placing their safety at issue. Therefore, the constitutional questions presented in this case are substantial because they raise larger issues relevant to school districts and unions in this State beyond this appeal. Indeed, the first question raises the larger issue of whether a teacher’s participation in activity that is intended to jeopardize the health and safety of others, particularly young adolescent children, should ever constitute protected speech. The second question raises the larger issue of whether a teacher’s interests in participating in an activity which threatens the safety of his students - even if deemed protected speech - should ever outweigh a school 3 district’s interests in protecting students from that dangerous activity, particularly where the teacher had alternative, safer means of communicating the protected speech. On April 24, 2013, the Court terminated its jurisdictional inquiry and ordered that the instant appeal proceed in the normal course. TABLE OF CONTENTS PAGE i. PRELIMINARY STATEMENT .............................................................................. 1 QUESTION PRESENTED ....................................................................................... 4 STATEMENT OF FACTS ....................................................................................... 5 I. INTRODUCTION .......................................................................................... 5 II. THE DISCIPLINARY CHARGES ................................................................ 5 III. THE DISCIPLINARY HEARING ................................................................. 6 A. Woodland Middle School ..................................................................... 6 B. Union Activities to Protest Lack of Agreement ................................... 7 C. Association Meeting at Woodland Held the Week of February 26, 2007 ................................................................................................ 8 D. March 2, 2007 Parking Activity ........................................................... 9 IV. THE HEARING OFFICER’S DECISION ................................................... 13 V. PROCEEDING BEFORE THE PUBLIC EMPLOYMENT RELATIONS BOARD ................................................................................. 15 VI. THE SUPREME COURT’S DECISION ..................................................... 16 VII. THE APPELLATE DIVISION, SECOND DEPARTMENT’S DECISION .................................................................................................... 17 ARGUMENT .......................................................................................................... 20 POINT I THE DISTRICT DID NOT VIOLATE SANTER’S FIRST AMENDMENT RIGHTS GIVEN THAT THE MARCH 2, 2007 PARKING ACTIVITY DID NOT CONSTITUTE PROTECTED SPEECH, THE DISTRICT’S MOTIVE IN IMPOSING DISCIPLINE WAS NOT SANTER’S PURPORTED SPEECH AND THE PICKERING TABLE OF CONTENTS (CONTINUED) PAGE ii. BALANCING TEST WEIGHS HEAVILY IN FAVOR OF THE DISTRICT…………………………………………….20 A. THE MARCH 2, 2007 PARKING ACTIVITY DID NOT CONSTITUTE PROTECTED SPEECH ..................................................... 24 i. The March 2, 2007 parking activity did not qualify as a form of “speech.” ............................................................................................. 24 ii. Even if Santer’s participation in the March 2, 2007 parking activity qualified as a form of speech under the First Amendment, it was nevertheless unprotected given that his actual intent was to create a health and safety risk and not to convey a particularized message ........................................................ 26 B. THE DISTRICT’S MOTIVATION FOR IMPOSING DISCIPLINE AGAINST SANTER HAD NOTHING TO DO WITH SANTER’S PURPORTED SPEECH ............................................................................... 28 C. THE PICKERING BALANCING TEST WEIGHS HEAVILY IN THE DISTRICT’S FAVOR ......................................................................... 30 i. The District’s interest in student safety .............................................. 31 ii. The District’s interest in the timely arrival of its teachers ................. 37 iii. Santer’s interest in participating in the parking activity .................... 38 CONCLUSION ....................................................................................................... 40 iii. TABLE OF AUTHORITIES Page(s) CASES Bernheim v. Litt, 79 F.3d 318 (2d Cir. 1996) ................................................................................. 20 Blackman v. N.Y. City Transit Auth., 491 F.3d 95 (2d Cir. 2007) ................................................................................. 20 Boals v. Gray, 775 F.2d 686 (6th Cir. 1985) .............................................................................. 22 Chainani v. Bd. of Educ. of the City of N.Y., 87 N.Y.2d 370 (1995) ........................................................................................ 31 Cioffi v. Averill Park Cent. Sch. Dist., 444 F.3d 158 (2d Cir. 2006) ............................................................................... 20 City of San Diego v. Roe, 543 U.S. 77 (2004) ........................................................................................ 21, 22 Connick v. Myers, 461 U.S. 138 (1983) ...................................................................................... 22, 26 Grayned v. City of Rockford, 408 U.S. 104 (1972) ............................................................................................ 32 Grzywna v. Schenectady Cent. Sch. Dist., 489 F. Supp. 2d. 139 (N.D.N.Y. 2006) ............................................................... 24 Hudson v. Craven, 403 F.3d 691 (9th Cir. 2005) .................................................................. 32, 33, 37 Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999) ................................................................... 23, 26, 33 Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006) ............................................................................... 20 iv. TABLE OF AUTHORITIES CONTINUED Page(s) CASES Matter of Trupiano v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 89 A.D.3d 1030 (2d Dep’t 2012) ........................................................................ 17 Meaney v. Dever, 326 F.3d 283 (1st Cir. 2003) ............................................................................... 25 Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185 (2d Cir. 2003) ......................................................................... 21, 30 Morse v. Frederick, 551 U.S. 393 (2007) ............................................................................................ 22 People v. Barr, 75 A.D.2d 14 (4th Dep’t 1980) ........................................................................... 28 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) .....................................................................................passim Rankin v. McPherson, 483 U.S. 378 (1987) .......................................................................... 21, 23, 30, 39 Reuland v. Hynes, 460 F.3d 409 (2d Cir. 2006) ............................................................................... 30 Schenck v. United States, 249 U.S. 47 (1919) .............................................................................................. 27 Spence v. State, 418 U.S. 405 (1974) ............................................................................................ 24 Texas v. Johnson, 491 U.S. 397 (1989) ............................................................................................ 24 v. TABLE OF AUTHORITIES CONTINUED Page(s) CASES Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ............................................................................................ 22 United States v. Nat’l Treasury Employees Union, 513 U.S. 454 (1995) .......................................................................... 21, 22, 23, 30 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) ............................................................................................ 32 ADMINISTRATIVE DECISIONS Appeal of Cuoco, SED Decision No. 12,582 (1991) ....................................................................... 32 City Sch. Dist. of the City of Elmira, SED Decision No. 12,394 (1990) ....................................................................... 31 East Meadow Teachers Ass’n v. East Meadow Union Free Sch. Dist., 43 PERB ¶4530 (ALJ Maier, Apr. 20, 2010) ............................................... 16, 37 STATUTES CPLR § 4511(b) (2013) ........................................................................................... 36 CPLR § 7511 (2013) ................................................................................................ 16 Education Law § 3020-a (2011) .......................................................................passim N.Y. Vehicle and Traffic Law § 1202(a)(2)(e) (2010) .............................................. 9 PRELIMINARY STATEMENT This brief is submitted on behalf of the Respondent-Appellant Board of Education of the East Meadow Union Free School District (the “District”) in support of its appeal from the Decision and Order of the Appellate Division, Second Department (“Appellate Division”) dated December 19, 2012 and entered in the Clerk’s Office of the Appellate Division on December 19, 2012. This appeal concerns whether the First Amendment of the United States Constitution precludes a school district from disciplining a teacher who has been found by a trier of fact to have engaged in a hazardous parking activity with other teachers, with the intent of creating a health and safety hazard for students. Inexplicably, the Appellate Division has held that it does. Indeed, in the Decision and Order below, the Appellate Division found that even though there existed a rational basis for the hearing officer’s finding that Petitioner-Respondent Richard Santer (“Santer”) created a health and safety risk for students by participating in the March 2, 2007 teacher parking activity, and that his intention that day was to create such a health and safety risk, the District violated Santer’s right to free speech when it commenced disciplinary proceedings against him pursuant to Education Law § 3020-a. The March 2, 2007 teacher parking activity involved 16 teachers, including Santer, who used their vehicles to block a known student drop-off area in front of 2 the Woodland Middle School (“Woodland” or the “Middle School”) in order to prevent parents from safely dropping off their adolescent children alongside the curb. According to Santer, he and the other teachers engaged in this parking activity in order to bring attention to the then on-going labor negotiations. The hearing officer presiding over the disciplinary proceedings, however, found that Santer, as set forth in the misconduct charge preferred against him, intended to create a health and safety risk for students, and in fact, did so. As a result, the hearing officer ordered as a penalty that Santer pay a fine to the District in the amount of $500.00. After an unsuccessful attempt to vacate the hearing officer’s award pursuant to Education Law § 3020-a(5) and Article 75 of the Civil Practice Law and Rules (“CPLR”), Santer appealed the lower court’s Short Form Order to the Appellate Division. In his appeal, Santer argued that notwithstanding his guilty finding on the misconduct charge, his participation in the parking activity was protected by the First Amendment, and, therefore, the District’s act of preferring disciplinary charges violated his free speech rights. The Appellate Division reviewed Santer’s First Amendment argument, which the District submitted was abandoned at the lower court level, and by Decision and Order dated December 19, 2013, reversed the lower court’s Short Form Order on the basis that the District violated Santer’s First Amendment right to free speech. In so holding, the Appellate Division 3 committed several reversible errors, including: (1) holding that Santer’s participation in the parking activity with the intent to create a health and safety risk for students constituted “protected speech”; (2) finding that the District, in preferring misconduct charges against Santer, was motivated by Santer’s “speech”; and (3) determining that the District failed to demonstrate that Santer’s participation in the parking activity so threatened the District’s effective operations as to justify the imposition of discipline. For the reasons set forth below, the District respectfully requests that the Appellate Division’s Decision and Order providing that the District violated Santer’s free speech rights by preferring disciplinary charges against him for his adjudged misconduct be reversed. 4 QUESTION PRESENTED QUESTION NO. 1 Whether the Respondent-Appellant Board of Education of the East Meadow Union Free School District violated Petitioner-Respondent Richard Santer’s right to free speech under the First Amendment of the United States Constitution when it commenced disciplinary proceedings against him pursuant to Education Law Section 3020-a for engaging in an adjudged hazardous and disruptive parking activity with the intent to create and health and safety hazard for students? The Appellate Division, Second Department incorrectly answered this question in the affirmative. 5 STATEMENT OF FACTS I. INTRODUCTION The District is a municipal corporation providing educational services to the students of East Meadow, New York. The District is comprised of nine school buildings, including Woodland. Santer is a tenured teacher at the District and a member of the East Meadow Teachers’ Association (the “Association”), the bargaining unit representing the District’s teaching personnel.1 (R. 389). II. THE DISCIPLINARY CHARGES On or about March 16, 2007, the District, pursuant to Education Law § 3020-a,2 preferred the following disciplinary charge, in the form of one specification, against Santer for his involvement in a hazardous parking activity at Woodland (the “Charge”): CHARGE I - MISCONDUCT Specification 1: On or about March 2, 2007, the Respondent intentionally created a health and safety risk by purposely situating his vehicle alongside the curb on Wenwood Drive in front of the Woodland Middle School in order to preclude children from being dropped off at curbside. The action 1 References to “R. __” refer to the Record on Appeal, dated June 21, 2013. It is noted that the Petitioner-Respondent submitted both a condensed format and full page transcript of the Education Law § 3020-a disciplinary proceedings as part of the record below. For ease of reference, the District has cited to the full page transcript of the disciplinary proceedings, located at pp. 356 - 901 of the Record on Appeal. 2 New York Education Law § 3020-a requires that school districts follow certain procedures to discipline tenured teachers, including preferring disciplinary charges against those teachers and providing them with a hearing before a neutral hearing officer. See N.Y. Educ. Law § 3020-a (2011). 6 resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard. (R. 44-45). III. THE DISCIPLINARY HEARING In accordance with Education Law § 3020-a, hearings were held concerning the Charge before Richard M. Gaba, Esq., the hearing officer presiding over the hearings (hereinafter the “Hearing Officer”), on March 12, 2009 and August 6, 2009. (R. 46-73, 356-871). At the hearing, which was transcribed, witnesses testified and exhibits were admitted into evidence. The testimony and evidence presented at the hearing are set forth below. A. Woodland Middle School Woodland is located at 690 Wenwood Drive in East Meadow, New York, and is made up of grades six, seven and eight. (R. 453, 458, 911). The average age of the students ranges from 11 to 13 years old. (R. 458). At Woodland, teachers must report to work by 7:55 a.m. (R. 459). School begins at 8:05 a.m. (R. 459). There are three parking lots for staff in the rear portion of Woodland. (R. 562-64, 911). There are two handicap curb cuts in front of the Middle School - on opposite ends of the street - which are approximately one car length each. (R. 473-79, 123, 912-13). There are no driveways in front of the Middle School. (R. 911). 7 For at least ten years, parents driving their children to school have used the curbs along Wenwood Drive as a student drop-off area. (R. 460-62, 465-66, 603- 04, 738-39, 911). Indeed, each morning between 7:30 a.m. and 8:00 a.m., approximately one hundred or so parents drive down Wenwood Drive, pull up alongside the curb, and drop off their children curbside in front of the school. (R. 463-65, 911). Parents driving from east to west on Wenwood Drive drop off their children alongside the curb on the north side (school side) of the street, and their children proceed to the building without ever setting foot in the street. (R. 461-62, 911). Conversely, parents driving from west to east on Wenwood Drive drop off their children alongside the curb on the south side (non-school side) of the street. (R. 463-64, 911, 915). Those children then wait at the curb, and cross the street when traffic is safe. (R. 463-64). B. Union Activities to Protest Lack of Agreement On September 1, 2004, the collective bargaining agreement between the District and the Association expired. (R. 389). By March 2007, the parties had not entered into a new agreement. (R. 389). Between September 2004 and March 2007, the Association engaged in numerous types of activities to protest the fact that they did not have a successor agreement in place, including, but not limited to, regularly picketing in front of the District’s nine school buildings, before and after school. (R. 391-92, 454, 691-92). At Woodland, teachers picketed on Monday 8 and Friday mornings by walking the sidewalk along Wenwood Drive - the street directly in front of Woodland’s main entrance - with signs. (R. 454, 692). None of the Association’s activities at Woodland were deemed to jeopardize the health and safety of students or disrupt the District’s operations. C. Association Meeting at Woodland Held the Week of February 26, 2007 During the week of February 26, 2007, the Woodland teachers held a building union meeting. (R. 757-58). At this meeting, the Woodland teachers discussed engaging in a new protesting tactic on Friday, March 2, 2007. (R. 757- 58). Specifically, they discussed that they would park their vehicles alongside the curbs on both sides of Wenwood Drive. (R. 757-58). At this meeting, Santer advised the teachers against engaging in the planned parking activity, even though there was a sign allowing parking until 8:00 a.m. (R. 832-42). He, admittedly, had concerns that the activity would be unsafe for students: The Witness: I never supported the activity, no. Question: And why did you never support it... Answer: I did not support this particular activity because teachers are adults of their own free will and they don’t always listen to me, and I didn’t want some[one] doing something stupid, pulling out at 7:50 and hitting a kid... 9 (R. 841-42). Despite Santer’s attempt to dissuade the teachers from engaging in the parking activity, the teachers nevertheless decided to hold the parking event that Friday morning. (R. 832, 838-39). Santer revealed that the teachers originally voted to park along the entire length of Wenwood Drive, leaving no space in front of the curb cuts. (R. 838-39) Santer cautioned the teachers, however, that they may not park in front of the curb cuts because it was illegal to block access to them.3 (R. 839). Following the meeting, the teachers did not provide any notice to either the District administration or the community that they would be engaging in this parking activity on the morning of March 2, 2007, and thereby blocking parents’ access to the Wenwood student drop-off area. D. March 2, 2007 Parking Activity On the morning of March 2, 2007, in the midst of a rainstorm, the teachers engaged in the planned parking activity. (R. 467-69, 604-05, 758-59, 911). Specifically, 16 teachers, including Santer, collectively parked their vehicles alongside the curbs on both sides of Wenwood Drive, end-to-end, one after another, in front of the entire length of the Middle School.4 (R. 467-69, 604-05, 3 See N.Y. Vehicle and Traffic Law § 1202(a)(2)(e) (2010) (“...no person shall...stand or park a vehicle, whether occupied or not, except momentarily to pick up or discharge a passenger or passengers...alongside or obstructing a curb area which has been cut down, lowered or constructed so as to provide accessibility to the sidewalk.”) (emphasis added) 4 Although the record is undisputed that at least 16 teachers participated in the parking protest by parking their individual cars alongside the street in front of Woodland on the morning of 10 758-59; 911). As a result, parents could not pull over to the curb to safely drop off their children like they regularly had, and instead had to stop in the middle of the street to drop them off. (R. 467-69, 605). As a result, traffic in front of Woodland became significantly congested in both directions, and students were dropped off in the midst of the traffic congestion. (R. 469-70, 605-06). Terrance Chase (“Chase”), the Woodland Dean of Students, was the first administrator to learn of the teachers’ parking activity on the morning of March 2nd. At approximately 7:30 a.m., while in the main office, one of the secretaries told him that there were teachers parked along Wenwood Drive in front of the Middle School. (R. 603, 632). With this news, Chase immediately proceeded to the office of James Lethbridge (“Lethbridge”), the Principal of Woodland, to report what he had just heard. (R. 466-67, 604). Once there, the two looked out of Lethbridge’s office window, which faces Wenwood Drive, and indeed, saw a line of cars parked, end-to-end, in front of the entire length of the Middle School, on both the north and south sides of the street.5 (R. 467-68, 605-66, 911). Lethbridge March 2, 2007, with eight teachers parking on each side of the street, the Appellate Division incorrectly stated in its Decision and Order that “approximately 8 teachers parked their cars...with 15 to 16 teachers participating in total.” (R. xii). 5 Lethbridge testified that the only area where there was no car parked was in front of the handicap curb cut on the North side of the street. (R. 473-74, 909-10). He further testified, however, that teachers were parked flush against the outside of the curb cut, and for the entire time he was looking out onto Wenwood Drive, he did not see a single parent access the curb cut to drop off a child. (R. 472-73, 486-87). The handicap curb cut on the North East side of the street is only 15 feet, which is about one car length, and would have required someone to parallel park in order to access. (R. 477-78, 912). 11 and Chase also saw parents, as a result of being unable to access the curbs on either side of the street, stopping in the middle of Wenwood Drive to drop off their children. (R. 468-69, 605). Before that day, neither Lethbridge nor Chase had ever witnessed parents dropping off children in the middle of the street. (R. 537- 38, 662-63). As a result of the teachers’ parking activity, traffic built up significantly on Wenwood Drive - more so than normal for that time of day. (R. 485-86, 654). While looking out of Lethbridge’s office window, Chase recognized some of the cars parked on Wenwood Drive as belonging to Woodland teachers, including, but not limited to, Santer’s car. (R. 606). Santer’s car was parked on the north side of Wenwood Drive, in line with the other cars parked alongside the curb. (R. 667, 911). Chase testified that he did not see any signs displayed in Santer’s car or in any of the other parked cars assembled along Wenwood Drive. (R. 627). At that point, Chase and Lethbridge went to the main lobby, which also faces Wenwood Drive, to get a better look at the situation. (R. 470, 607). Once there, they saw much of the same thing - teachers blocking the student drop-off area with their cars and parents having to drop off their children in the middle of the street as a result. (R. 470, 607). Lethbridge went to his office to call the police for assistance. (R. 487). Lethbridge called the police that morning because, in all his years, he had never 12 seen activity like this before, and in his judgment, the police were best suited to handle the safety and traffic issues presented by the activity. (R. 487-88). Before doing so, however, he directed Chase to report to the cafeteria - to supervise students who had been permitted inside the building early due to the inclement weather. (R. 487). After Lethbridge contacted the police, he proceeded to the main office to apprise the Assistant Principal of the happenings outside. (R. 488-89). Once there, the secretary in the main office informed Lethbridge that parents had been calling the school complaining that the participants in the parking activity had blocked them from safely dropping off their children alongside the curb. (R. 488-89). The main office secretary also informed Lethbridge that numerous teachers had called that morning to report that they were stuck in traffic around Woodland, and would be late to work. (R. 488-89). At approximately 7:50 a.m., the teachers parked on Wenwood Drive began to pull away from the curbs and proceed down the street. (R. 489). Thereafter, at approximately 8:05 a.m., Lethbridge checked the teacher sign-in sheet and discovered that 19 teachers had not yet signed in. (R. 291-98, 494). After interviewing these teachers regarding the reasons for their tardiness, Lethbridge concluded that 16 teachers failed to report to work by 8:05 a.m. (which is 10 minutes beyond their required reporting time) as a direct result of parking activity 13 and the traffic congestion it caused.6 (R. 281, 459, 503). Lethbridge had never had so many teachers report late before. Ordinarily, no teachers report to work after 8:05 a.m. (R. 503). According to Lethbridge, the teachers’ parking activity, and the latenesses it caused, “jeopordiz[ed] the official running of the building that particular school day.” (R. 503-04, 508). After the teachers’ parking activity concluded, Lethbridge waited for Santer to enter the building so that they could discuss why the Woodland teachers were blocking the Wenwood student drop-off area. (R. 490, 768). Santer claimed that teachers were engaged in a union activity related to the ongoing labor negotiations. (R. 490, 768). Lethbridge responded by telling Santer that the teachers’ activity jeopardized the health and safety of Woodland students. (R. 490, 768). Lethbridge then ended the meeting, and shortly thereafter, the police arrived. (R. 493, 526-27). Thereafter, the District preferred the Charge against Santer and the other teachers known to be involved in the parking activity. (R. 262-63). IV. THE HEARING OFFICER’S DECISION By decision dated January 8, 2010, the Hearing Officer found Santer guilty of the Charge and ordered as a penalty that he pay a fine to the District in the amount of $500.00. (R. 19-28). The Hearing Officer found that Santer knowingly 6 In 2007, 110 teachers were assigned to Woodland. (R. 291-98). Therefore, approximately 15% of the Woodland teachers failed to report to work by the time school started due to the traffic caused by the parking activity. 14 and purposely parked his vehicle alongside the curb in front of the Middle School on the morning of March 2, 2007 with numerous other teachers. (R. 19-28). The Hearing Officer concluded that by doing so, Santer created a hazardous situation. (R. 25-26). In support of his conclusion, the Hearing Officer noted that “whereas both sides of Wenwood Drive were normally available for parents to pull up to a curb before dropping off their children, the situation created by [Santer] in concert with other teachers made it impossible for a driver to drop his/her passengers at either curb.” (R. 25). The parking activity, the Hearing Officer determined, “created more traffic with students disembarking on the road, and having to make their way across the street to enter the school.” (R. 25). The Hearing Officer rejected Santer’s contention that the District failed to prove that he maintained the requisite intent to prove the Charge. (R. 26). Indeed, the Hearing Officer found that Santer’s actions and the circumstances surrounding his actions established such intent. (R. 25-26). The Hearing Officer noted that, despite the fact that Santer knew the area in front of Woodland was used as a student drop-off area, he parked his vehicle there on the morning of March 2, 2007, and knew other teachers were parked there as well. (R. 25-26). Santer, therefore, knew that by parking there with numerous other teachers, the parking activity would create a hazardous condition for students. (R. 26). In fact, he even stated so at the building union meeting. (R. 841-42). 15 The Hearing Officer also rejected Santer’s argument that because no students were injured, no health and safety hazard could have existed. “The fact that no students were injured,” the Hearing Officer stated, “is fortunate but irrelevant.” (R. 25). The Hearing Officer also rejected Santer’s argument that because he was legally parked on Wenwood Drive on the morning of March 2nd, the Hearing Officer could not find him guilty of the Charge. (R. 26). Addressing this point, the Hearing Officer stated, “Section 3020-a does not require an action to be illegal before a teacher may be subject to discipline and the District was well within its rights to charge Respondent for his failure to protect the health and safety of its students.” (R. 26). Finding Santer culpable of the Charge, the Hearing Officer ordered as a penalty that Santer pay a fine to the District in the amount of $500.00. (R. 27). In reaching his decision on Santer’s penalty, the Hearing Officer noted, among other things, that Santer opted to participate in the parking activity despite his own recognition that it was dangerous. (R.27). V. PROCEEDING BEFORE THE PUBLIC EMPLOYMENT RELATIONS BOARD In a corresponding action before the Public Employment Relations Board, the Association unsuccessfully claimed that Santer’s involvement in the parking activity constituted protected activity under the Public Employees’ Fair 16 Employment Act (the “Taylor Law”). By decision dated April 20, 2010, Philip L. Maier, the Administrative Law Judge who presided over the proceeding, found that the teachers’ parking activity, and Santer’s involvement in it, was not protected by the Taylor Law because, among other reasons, it disrupted the operations of the school, particularly, by causing 16 teachers to be late for school. Specifically, Judge Maier held: I find merit to the District’s assertion that Santer’s actions were disruptive and entangled students in a labor dispute so as to cause his actions to lose any protected status. Evidence of the disruptive nature of the activity is that 16 teachers were late to school that day. The actions of 16 to 24 teachers parking along the curb on a day of heavy rain did disrupt the school from functioning properly that day. East Meadow Teachers Ass’n v. East Meadow Union Free Sch. Dist., 43 PERB ¶4530 (ALJ Maier, Apr. 20, 2010) (emphasis added). VI. THE SUPREME COURT’S DECISION By petition dated January 28, 2010, Santer commenced a proceeding pursuant to Education Law § 3020-a(5) and CPLR § 7511, seeking to vacate the Hearing Officer’s award in his § 3020-a proceeding on the grounds that it is irrational, arbitrary and capricious and not based upon adequate or substantial evidence. (R. 9-28). By Short Form Order dated October 7, 2010, the Honorable R. Bruce Cozzens, Jr., J.S.C. denied Santer’s petition, holding that the Hearing Officer’s decision “is not clearly violative of strong public policy, not completely 17 irrational or exceeds a specific enumerated limitation of the arbitrator’s power.” (R. 7-8). VII. THE APPELLATE DIVISION, SECOND DEPARTMENT’S DECISION By Notice of Appeal dated October 29, 2010, Santer appealed the order of Judge Cozzens to the Appellate Division, Second Department. (R. 2-3) After the parties submitted their briefs and participated in oral arguments, the Appellate Division, by Decision and Order dated December 19, 2012, reversed Judge Cozzens’ order and granted the petition to vacate the Hearing Officer’s award. (R. x-xii). Upon review of the record, the Appellate Division agreed with the lower court that there existed a rational basis for the Hearing Officer to find that Santer created a health and safety hazard by participating in the parking activity, and that the Hearing Officer’s award was not arbitrary and capricious. (R. xii) In so holding, the Appellate Division acknowledged that it recently rendered the same holding in a matter involving one of Santer’s colleagues, Gina Trupiano, who also participated in the parking activity and was charged with the same disciplinary charge. (R. xii). See Matter of Trupiano v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 89 A.D.3d 1030 (2d Dep’t 2012). The Appellate Division maintained that it was reversing the lower court’s holding in this case, however, because Santer raised an argument in his appeal that 18 the petitioner in Matter of Trupiano did not; specifically, “that the disciplinary proceeding commenced against him, and the discipline ultimately imposed, violated his right to free speech under the First Amendment of the United States Constitution.” (R. xii). From there, the Appellate Division reviewed Santer’s First Amendment argument, which the District submitted was abandoned at the lower court level, and found that the District violated his First Amendment rights by imposing discipline against him. (R. xiii). Indeed, despite the Hearing Officer’s finding that Santer’s intent that day was to create a health and safety hazard, the Court found that his participation in the parking activity somehow constituted protected speech. (R. xiii). Furthermore, although the record established the teachers had lawfully picketed Woodland (and other District school buildings) hundreds of times before without facing any type of discipline, and the Appellate Division’s own determination that there was a rational basis for the Hearing Officer’s finding that the parking activity created a dangerous situation for students, it inexplicably concluded that the District, in pursuing discipline against Santer, was motivated by his “speech” rather than by his intent to place the safety of students in jeopardy. (R. xiii). Lastly, and most puzzling, despite the evidence establishing that the teachers had numerous alternative means of protesting other than by blocking a known student drop-off area with their cars, the Appellate Division found that Santer’s interests in participating in the hazardous parking 19 activity outweighed the District’s interests in protecting the safety of its students. (R. xiii). Remarkably, although the Appellate Division acknowledged that the evidence reflected that the parking activity jeopardized the safe and effective arrival of students to school, and there existed additional evidence in the record to demonstrate that the parking activity also caused 16 teachers to report to work after school began, the Appellate Division held that the District failed to meet its burden of demonstrating that the parking activity “so threatened the effective operation of the school that discipline...was justified.” (R. xiii). Passing on giving any deference to the Hearing Officer’s findings to the contrary, the Appellate Division found that the dangers presented by the parking activity were not dangerous enough to justify the discipline imposed. (R. xiii). In so holding, the Appellate Division relied on facts that the Hearing Officer found were not relevant to the issue of danger. For example, the Appellate Division relied on the fact that no student was injured as a result of the activity. The Hearing Officer, on the other hand, had noted in his award, that “[t]he fact that no students were injured that day is fortunate but irrelevant.” (R. 25). Moreover, the Appellate Division ignored the other effects the parking activity had on the school’s operations, most notably, that 16 teachers reported late to work as a direct result. 20 The District now appeals from the Appellate Division’s December 19, 2012 Decision and Order. ARGUMENT POINT I THE DISTRICT DID NOT VIOLATE SANTER’S FIRST AMENDMENT RIGHTS GIVEN THAT THE MARCH 2, 2007 PARKING ACTIVITY DID NOT CONSTITUTE PROTECTED SPEECH, THE DISTRICT’S MOTIVE IN IMPOSING DISCIPLINE WAS NOT SANTER’S PURPORTED SPEECH AND THE PICKERING BALANCING TEST WEIGHS HEAVILY IN FAVOR OF THE DISTRICT. The right to freedom of speech is an indispensable democratic freedom secured to all by the First Amendment of the United States Constitution. This is no less true for government employees, because “[o]ne does, of course, have a First Amendment right not to be [disciplined] ... in retaliation for engaging in protected speech.” Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006). A public employee’s right to freedom of speech, however, is not absolute. Bernheim v. Litt, 79 F.3d 318, 324 (2d Cir. 1996). “Public employees...do not enjoy free reign to speak out without regard to the interests of their public employer.” Cioffi v. Averill Park Cent. Sch. Dist., 444 F.3d 158, 162 (2d Cir. 2006). After all, “the Government as an employer, and hence as a consumer of labor, must retain some freedom to [discipline] employees who do not meet the reasonable requirements of their jobs.” Blackman v. N.Y. City Transit Auth., 491 F.3d 95, 96 (2d Cir. 2007) 21 (quoting Locurto, 447 F.3d at 163). Thus, “the government may impose restraints on the First Amendment activities of its employees that are job-related even when such restraints would be unconstitutional if applied to the public at large.” Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185, 192 (2d Cir. 2003) (quoting United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 465 (1995)); see also City of San Diego v. Roe, 543 U.S. 77, 80 (2004) (same). The determination whether a public employer has violated the First Amendment by disciplining a public employee for engaging in protected speech requires “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Rankin v. McPherson, 483 U.S. 378, 384 (1987) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). This weighing, commonly referred to as the Pickering balancing test, is necessitated in order to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment. Rankin, 483 U.S. at 384. While a public employer’s ability to regulate speech is limited by the First Amendment, those public employers that are charged with providing such essential services as public safety and education are granted greater leeway to control 22 employee speech that threatens to undermine its ability to perform its legitimate functions. Nat’l Treasury Employees Union, 513 U.S. at 475 n.21. Indeed, drawing on the principles learned from student speech cases, forms of expression may be suppressed where school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” Morse v. Frederick, 551 U.S. 393, 403 (2007) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)). In determining whether an employee’s speech or expressive conduct is protected by the First Amendment, a court must first decide whether the speech addresses a matter of public concern. See, e.g., Roe, 543 U.S. at 84. Whether a public employee’s speech addresses a matter of public concern is a question of law to be determined in light of “the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983). An employee’s “speech, activity or association, merely because it is union-related, does not touch on a matter of public concern as a matter of law.” Boals v. Gray, 775 F.2d 686, 693 (6th Cir. 1985). If the speech addresses a matter of public concern, a court must then balance the interests of the employer in providing “effective and efficient” public services, See Connick, 461 U.S. at 150, against the employee’s First Amendment right to free expression. See Pickering, 391 U.S. at 568. In balancing these 23 interests, a court must consider whether the statement and/or form of expression sought to be protected “impairs discipline by superiors or harmony among co- workers, has detrimental impact on close relationships or impedes the performance of [employees’] duties or interferes with the regular operation of the enterprise.” Rankin, 483 U.S. at 388. The government bears the burden of demonstrating that the speech and/or expressive conduct threatens to interfere with government operations. Rankin, 483 U.S. at 388; Nat’l Treasury Employees Union, 513 U.S. at 466. In meeting this burden, the government need only demonstrate “a likely interference with its operations, not actual disruption.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999). In applying the aforementioned principles, the Appellate Division erred in finding that the District violated Santer’s right to free speech by imposing discipline against him for his participation in the adjudged hazardous parking activity. Specifically, the Appellate Division erred in finding that Santer was engaged in protected speech; that the District’s motive in bringing disciplinary charges against Santer was his purported speech; and that the Pickering balancing test weighed in favor of Santer and not the District. 24 A. THE MARCH 2, 2007 PARKING ACTIVITY DID NOT CONSTITUTE PROTECTED SPEECH. i. The March 2, 2007 parking activity did not qualify as a form of “speech.” Although the First Amendment protects only “speech,” certain conduct may be sufficiently imbued with elements of communication to fall within the ambit of the First Amendment. Texas v. Johnson, 491 U.S. 397, 404 (1989). Courts, however, have rejected the view that any conduct can be labeled speech whenever the actor intends to express an idea. Johnson, 491 U.S. at 404; Spence v. State, 418 U.S. 405 (1974). For conduct to be considered speech, the reviewing court must find, at the very least, an intent to convey a “particularized message,” along with a great likelihood that the message will be understood by those viewing it. Johnson, 491 U.S. at 404; Spence, 418 U.S. at 410-11. The person’s subjective intent is not dispositive over whether his conduct is speech. Grzywna v. Schenectady Cent. Sch. Dist., 489 F. Supp. 2d. 139, 146 (N.D.N.Y. 2006). There is, rather, an objective component that requires consideration of whether, under the circumstances, the particular conduct is likely to be understood or perceived as expressing a particular message. Id. Santer testified that the purpose of the parking activity was to reignite the public’s interest in the then ongoing labor negotiations between the District and the Association. (R. 353). Here, completely absent from the record is any indication 25 that there existed a “great likelihood” that parents dropping off their children at the Middle School on March 2nd would have recognized a link between the parking activity and the ongoing labor negotiations. See, e.g., Meaney v. Dever, 326 F.3d 283, 287-88 (1st Cir. 2003) (finding that plaintiff’s blowing of an air horn is qualitatively different from more readily understood expressive conduct of inherent First Amendment significance, such as picketing, boycotting, canvassing and distributing pamphlets). Santer testified that prior to the March 2nd parking activity, the Woodland teachers held a building union meeting and discussed that “[they] would park [their] cars along Wenwood Drive and display [their] signs in the windows, so that cars going past would see the signs and, you know, their attention be returned to the labor crisis.” (R. 693). With the exception of this testimony, there is absolutely nothing in the record corroborating Santer’s claim that he actually displayed a sign in his car window, or identifying the message written on that sign. (R. at passim). In fact, Chase credibly testified that he did not observe any signs in the parked cars assembled along Wenwood Drive. (R. 627). With 16 cars parked along Wenwood Drive on the morning of March 2nd, certainly Chase would have observed a sign to the extent they were present and visible from the cars. Moreover, it was not until Santer was questioned about the parking activity that the District first became aware of its purpose. (R. 490, 768). It is evident that Chase 26 and Lethbridge, who were witnesses to the parking activity, didn’t understand the purpose of the teachers’ actions until being informed by Santer. Therefore, the District submits that those parents who were dropping their children off in front of Woodland would not have understood the purpose of the parking activity either. Without the requisite context, the March 2nd parking activity did not constitute a form of speech under the First Amendment. ii. Even if Santer’s participation in the March 2, 2007 parking activity qualified as a form of speech under the First Amendment, it was nevertheless unprotected given that his actual intent was to create a health and safety risk and not to convey a particularized message. In determining whether speech addresses a matter of public concern, and is therefore protected, a court must take into account the content, form, and context of a given statement as revealed by the whole record. Connick, 461 U.S. at147-48. In reaching this decision, the Court should focus on the motive of the speaker and attempt to determine whether the speech serves a public purpose. See Lewis, 165 F.3d at 163-64 (finding “the speaker’s motive” to be a relevant factor in determining whether speech is protected). Even if the parking activity constituted a form of “speech,” the Appellate Division erred in finding that Santer’s participation in the parking activity was protected. (R. xii). In its Decision and Order, the Appellate Division found that the Hearing Officer had a rational basis for finding Santer culpable of the Charge, 27 which accused him of intentionally creating a health and safety hazard for students. (R. xii). The Appellate Division, therefore, had no basis to find that Santer was engaged in protected speech in the face of the Hearing Officer’s finding that his intent was to put the safety of students at risk, and not, as Santer claims, to send a particularized message to the public about the status of collective bargaining. The District submits that the Appellate Division should not have provided First Amendment protection to participants of an activity where the trier of fact concluded that the intent of those participants was to create a hazardous situation, and they, in fact, created such a situation. Since the Supreme Court’s holding in Schenck v. United States, it has been commonly understood that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” 249 U.S. 47, 52 (1919). In other words, context and surrounding circumstances must be taken into account. If falsely shouting fire in a crowded movie theater does not warrant the protections of the First Amendment, neither should the teachers participation in the March 2nd parking activity. The intent in both examples is the same - to create a dangerous situation for others. In reality, the teachers’ motive was to disrupt the student drop-off area in a way that would cause parents to plea with the District to give into the Association’s demands at the bargaining table so that students would no longer be 28 entangled in the parties’ labor dispute and have their safety put at risk. See People v. Barr, 75 A.D.2d 14 (4th Dep’t 1980) (finding a person’s intent may be inferred from his actions and from the circumstances surrounding those actions). This is evident by the fact that the teachers planned the activity despite Santer voicing significant concerns at the building union meeting about the hazards of such an activity. Indeed, to the extent the teachers actually hung signs in their car windows that were visible to the public, those signs were a mere pretext to their real objective. As such, taking into account the “content, form, and context” of the speech here, coupled with Santer’s intent to create a hazardous situation, the parking activity clearly does not fall within the ambit of First Amendment protection. B. THE DISTRICT’S MOTIVATION FOR IMPOSING DISCIPLINE AGAINST SANTER HAD NOTHING TO DO WITH SANTER’S PURPORTED SPEECH. In addition to incorrectly finding that Santer’s actions constituted protected speech, the Appellate Division erred in finding a causal connection between Santer’s purported “speech” and the discipline imposed. The record fully supports that the District would have pursued discipline against the teachers, including Santer, if teachers had situated their vehicles in the manner in which they did that day and had not purportedly done so in relation to collective bargaining. This is especially true where, as it was here, their intent was to create a health and safety 29 hazard for students. This is evident by the mere fact that the District charged Santer and the other teachers with intentionally creating a health and safety hazard. (R. 262-63). By doing so, the District removed the notion that it was seeking to discipline the teachers for their purported speech, and instead only wished to discipline those teachers who intended to jeopardize the safety of its students. Therefore, by requiring that it prove intent as an element of the Charge, the District ensured that its motivation to discipline was not driven by the purported “speech.” The record further establishes that the teachers picketed Woodland hundreds of times before the parking activity (and afterwards) without facing any type of discipline. (R. 389, 391-92, 454, 691-92). This undisputed fact undermines the Appellate Division’s finding that the District was motivated by the teachers’ speech. Indeed, the teachers were purportedly engaged in the same speech on the morning of March 2nd as they had been since the expiration of the collective bargaining agreement, almost three years earlier, viz., to apprise the community of the ongoing labor negotiations. (R. 389, 391-92, 454, 691-92). The difference with the parking activity, however, lies in the fact that the parking activity created a hazardous situation for students, which the teachers intended. Further undermining the notion that the District was motivated by Santer’s speech, is Santer’s own testimony that one teacher walked up and down the sidewalk picketing on foot while the parking activity was underway. (R. 694-95). This 30 teacher, unlike her counterparts who participated in the dangerous parking activity, was not the subject of any discipline. Had the District been motivated by the alleged free speech activity, it would have sought to discipline this teacher as well. Here, the District preferred disciplinary charges against Santer based on his intention to create a health and safety hazard for students, and not in retaliation for his speech. C. THE PICKERING BALANCING TEST WEIGHS HEAVILY IN THE DISTRICT’S FAVOR. Under the fact-sensitive Pickering balancing test, courts must determine whether “the employee’s interest in free speech is outweighed by the employer’s interest in avoiding disruption.” Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir. 2006) (citing Melzer, 336 F.3d at 193). In doing so, courts must consider the “manner, time, and place of the employee’s expression” as well as “the context in which the dispute arose.” Rankin, 483 U.S. at 388. Public employers that are charged with providing such essential services as public safety and education are granted greater leeway to control employee speech that threatens to undermine its ability to perform its legitimate functions. Nat’l Treasury Employees Union, 513 U.S. at 475 n.21. Here, even if the Appellate Division properly found that Santer engaged in protected speech and that his speech was, indeed, the motivating factor for the District pursuing disciplinary charges against him, the Appellate Division 31 erred in failing to properly balance the interests of the District against Santer’s interests. The District’s interests in this case are simple, but exceedingly important --- to ensure the safe arrival of its student population and the timely arrival of its teachers to supervise and educate those students. Santer’s interests here are minimal --- to participate in a parking activity with the intention of jeopardizing the safety of students. Balancing these interests, however, the Appellate Division somehow found that Santer’s interests outweighed those of the District. In reaching its conclusion, the Appellate Division disregarded the Hearing Officer’s findings and found that the parking activity was somehow not dangerous enough to outweigh Santer’s interests. Moreover, the Appellate Division completely ignored the fact that the parking activity disrupted the District’s operations by causing 16 Woodland teachers to report after school began, leaving homerooms without proper teacher supervision. i. The District’s interest in student safety. The Commissioner of Education has consistently held that school districts have “a duty to protect the safety of its pupils and to provide them with a safe school environment.” City Sch. Dist. of the City of Elmira, SED Decision No. 12,394 (1990). In Chainani v. Bd. of Educ. of the City of N.Y., this Court held that “[p]lainly, a school has a duty of care while children are in its physical custody or 32 orbit of authority...” 87 N.Y.2d 370, 378 (1995). Teachers also have a “well- established duty to protect the safety and well-being of pupils.” Appeal of Cuoco, SED Decision No. 12,582 (1991) (citations omitted); see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (“[T]eachers... stand in loco parentis over the children entrusted in them.). In light of these corresponding duties, the District has a significant interest in ensuring that its students arrive to school safely, and disciplining those who undermine such interests. Those interests far outweigh Santer’s right to participate in a teachers’ dangerous parking activity. See Hudson v. Craven, 403 F.3d 691 (9th Cir. 2005) (where the Court held that the college’s interest in student safety and pedagogical oversight strongly outweighed its professor’s speech and associational activities); see also Grayned v. City of Rockford, 408 U.S. 104 (1972) (where the Court held that the City’s ordinance, which prohibited picketing near schools in session, did not violate the First Amendment because it was narrowly tailored to further the City’s compelling interest in having an undisrupted school session conducive to the students’ learning and did not unnecessarily interfere with First Amendment rights). In Hudson, the plaintiff, a college professor, organized an unofficial field trip for her students to attend a protest against the World Trade Organization (“WTO”) despite being told not to do so by college officials. Id. at 694. The plaintiff then sued various college administrators after her employment contract 33 was not renewed after the WTO protest. Id. at 695. The Ninth Circuit held that the plaintiff’s rights to free speech and association were at issue based on the fact that her stated purpose in participating in the demonstration was to express, in association with some of her students, her opinions about the role of the WTO in the global economy. Id. at 699. When applying the Pickering balancing test, however, the Ninth Circuit concluded that college’s interest in the “safety of students and pedagogical oversight” strongly outweighed the interests of the plaintiff. Id. Furthermore, the Ninth Circuit opined: While [plaintiff’s] freedom to participate in discussion about the WTO surely implicates core political speech, the actual curtailment of her First Amendment rights was minimal. [Plaintiff] was free to attend the anti-WTO rally on her own. She was free to communicate her views on the WTO to her students or to anyone else. She was free to associate with her students in the classroom on this matter. The only claimed abridgement of her First Amendment rights was that she was not permitted, under the de facto auspices of the College, to associate with a handful of students during a discrete event for a limited duration. Id. Here, unlike the court in Hudson, the Appellate Division irrationally concluded that the District’s interests in the safety of its students, as well as the timely arrival of its teachers, were secondary to Santer’s claimed abridgement of his First Amendment rights to participate in a discrete parking activity. For the reasons that follow, the Appellate Division failed to properly evaluate the parties’ competing interests. 34 Initially, the Appellate Division erred in determining that the balance of interests somehow hinged on the level of actual danger presented by the teacher parking activity. It is well settled that the District’s burden in connection with the balancing test is to show “only a likely interference with its operations, and not actual disruption.” Lewis, 165 F.3d at 163. There is no reasonable dispute that the hazardous situation presented by the parking activity was significant. As the Hearing Officer found, traffic became significantly congested on Wenwood Drive and students were dropped off in the middle of that congested traffic. (R. 25). Common sense dictates that having children exit vehicles in the middle of the street, in a heavy flow of traffic, during a rainstorm (when visibility is low and roads are slippery), is inherently a significant health and safety hazard. Even Santer himself recognized that the parking activity was inherently dangerous, admitting that he had concerns that a student might be struck by a car. (R. 841-42). Rather than defer to the Hearing Officer’s findings and Santer’s own view that a child could be injured, the Appellate Division relied on facts that were irrelevant to the question of whether a hazard existed that morning and the significance of that hazard. The Appellate Division found that the parking activity was not hazardous because “Santer did not violate any law or school policy.” (R. xiii). While it is true that Santer did not violate the law, that fact has no bearing on 35 the question of whether the hazard was insignificant. There are certainly situations where teachers engage in an activity that, while not unlawful, presents significant safety hazards, such as when a teacher fails to evacuate a classroom during a fire drill, or leaves a classroom of students unattended for a long period of time. Here, the trier of fact, the Hearing Officer, specifically found that a safety hazard was present. The Appellate Division cannot disregard this finding simply because no law was broken. The Appellate Division also relied on the fact that had members of the public parked their cars in the same manner, the District would have no recourse. (R. xiii). While that may be true, members of the public do not carry the same responsibility that teachers carry towards students of the District. As stated earlier, teachers have an affirmative obligation to “protect the safety and well-being of pupils,” and instead, Santer and his colleagues did the exact opposite when they blocked the Woodland student drop-off area, with the intent to cause a safety issue. What’s more, members of the public had never parked in the manner that the teachers did that morning. Indeed, on a normal day, parents pull up alongside the curb, safely drop off their children curbside and then immediately pull away. (R. 461-65). They do not remain parked alongside the curb with fifteen other 36 members of the public, end-to-end, one after another, for more than 20 minutes.7 The fact that the public could, but never did, park in the same disruptive manner as Santer and the teachers does not weigh in favor of Santer’s interests. In finding that Santer’s interests outweighed the District’s, the Appellate Division also relied on the fact that “no school official asked the teachers to move their cars during the protest.” (R. xiii). While it is true that no school official addressed this hazardous situation by going outside and doing who knows what, the Hearing Officer observed that Lethbridge addressed it in another way. He called the police. (R. 19-28, 487-88). It was not unreasonable for Lethbridge to believe that the police were best equipped to handle the situation of parked cars creating traffic congestion and a dangerous situation for students. Once again, this fact does not minimize the danger of the situation that was created by the conduct in question and it certainly does not tip the scales in favor of Santer. Finally, in its balancing analysis, the Appellate Division relied on the fact that no student was injured as a result of the parking activity. (R. xiii). As the Hearing Officer prudently noted in his award, “the fact that no students were injured that day is fortunate but irrelevant.” (R. 25). The Appellate Division simply failed to recognize that by virtue of Santer and the other teachers engaging 7 The Court may take judicial notice of the fact that after the March 2, 2007 parking activity, the Town of East Meadow amended the parking restrictions on Wenwood Drive to prohibit parking from 7:00 a.m. to 4:00 p.m. See CPLR § 4511(b) (2013) 37 in the parking activity, there was an increased potential that a student could have been injured. See Hudson, 403 F.3d at 700 (“[plaintiff’s] argument that the College’s fears ‘proved to be unfounded as none of the students who attended the rally even witnessed any harm to any individuals there, much less suffered any themselves’ misses the point.”) It is not disputed that it was Santer (and the other teacher’s) intent to have children dropped off in the middle of the street. (R. 25). The Appellate Division’s decision suggests that Santer’s fear of a student being hit by a car would have had to materialize in order for the activity to have been sufficiently dangerous for the balancing test to tip in the District’s direction. ii. The District’s interest in the timely arrival of its teachers. In conducting its balancing analysis, the Appellate Division ignored the fact that the teachers’ parking activity significantly interfered with the District’s operations. The record clearly reflects that as a result of the parking activity, and the traffic congestion it caused, 16 teachers reported to Woodland after 8:05 a.m. (R. 281, 459), which means that at the time school commenced, 15% of the Woodland teaching staff had not yet arrived to work. With so many teachers tardy to school, the parking activity “jeopordiz[ed] the official running of the building that particular school day.” (R. 503-04, 508). In fact, Administrative Law Judge Philip L. Maier, in determining that Santer’s conduct was not protected by the Taylor Law, already held that the parking activity disrupted the operations of the 38 school. East Meadow Union Free Sch. Dist., 43 PERB ¶4530. Here, the parking activity must be subordinate to the interest of the effective functioning of the District without offending the Constitution. The Appellate Division completely missed this essential component of the balancing analysis. iii. Santer’s interest in participating in the parking activity. As opposed to the District’s significant interests in student safety and the timely arrival of its staff, Santer’s interests in participating in the parking protest were minimal, particularly where the Hearing Officer found that he engaged in the activity with the intention of creating a health and safety hazard. (R. 25-26). As the record reflects, the Association had many alternative means of making the community aware of the labor negotiations other than by blocking a known student drop-off area with their cars, like, for example, walking along the sidewalk with their signs. (R. 391-92, 454, 691-92). If the anticipated rain was truly a concern for the teachers, they could have simply used umbrellas or worn raincoats to keep from getting wet, like the one teacher who picketed on foot did that day. (R. 694- 95). In its Decision and Order, the Appellate Division opines that the “disciplinary measures imposed on Santer would likely have the effect of chilling speech on....the negotiations of a collective bargaining agreement.” (R. xiii). This is simply not true. In fact, after the teachers who were known to have participated 39 in the parking activity were charged with misconduct, Association members continued to picket until the Association and the District entered into a successor collective bargaining agreement - several months after the March 2, 2007 parking activity. (R. 392-93). All that the disciplinary charges arguably chilled, and sought to chill, were the teachers engaging in activities with the intent to create a hazardous situation for students. In sum, the District maintains a “strong state interest” in its function as employer and in avoiding interference with than function. Rankin, 483 U.S. at 388. Further, the District has an interest in functioning as effectively as possible, especially when it comes to protecting the health, safety and welfare of its student population and ensuring the timely arrival of its staff. Santer’s interests - the right to participate in the dangerous parking activity - on the other hand, are marginal. With plenty of other ways to get their alleged message across, including picketing in front of Woodland, it is hard to imagine that this admittedly dangerous activity is somehow entitled to greater protection. Moreover, Santer, as a teacher, has an obligation to protect the health and safety of students and instead, he purposely engaged in an activity that placed the very students he is obligated to protect in a hazardous situation. For these reasons, the Appellate Division’s Pickering analysis is flawed and warrants reversal. 40 CONCLUSION Based upon the record on appeal and for the reasons set forth above, the District respectfully requests that the Court of Appeals reverse the Appellate Division, Second Department’s Decision and Order reversing the Short Form Order of the Supreme Court, Nassau County, and award such other and further relief as deemed appropriate by the Court. An adverse ruling would render school districts paralyzed in their ability to safeguard its student body when teachers engage in unsafe and hazardous activities under the pretense of union activity. Date: June 24, 2013 New York, New York Craig R. Benson George B. Pauta Ethan D. Balsam LITTLER MENDELSON A Professional Corporation 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant Board of Education of the East Meadow Union Free School District /s/ George B. Pauta