In the Matter of Richard Santer, Respondent,v.Board of Education of East Meadow Union Free School District, Appellant.BriefN.Y.February 19, 2014 Nassau County Clerk’s Index No. 001997/10 Appellate Division-Second Department Docket No. 2010-11006 APL-2013-00251 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 AMICUS CURIAE OF THE NEW YORK STATE SCHOOL BOARDS ASSOCIATION, INC. JAY WORONA, ESQ. KIMBERLY A. FANNIFF, ESQ. Attorneys for Amicus Curiae New York State School Boards Association, Inc. 24 Century Hill Drive, Suite 200 Latham, New York 12110-2125 Tel.: (518) 783-0200 TIMOTHY G. KREMER EXECUTIVE DIRECTOR January 17, 2014 1 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..................................................................................... 2 INTEREST OF THE AMICUS CURIAE ................................................................... 5 STATEMENT OF THE ISSUE ................................................................................. 8 STATEMENT OF FACTS ........................................................................................ 9 ARGUMENT ........................................................................................................... 10 THE INTEREST OF THE SCHOOL DISTRICT IN THE SAFE AND EFFICIENT PROVISION OF SERVICES TO STUDENTS OUTWEIGHED THE RESPONDENT’S EXERCISE OF FREE SPEECH RIGHTS THROUGH HIS PARTICIPATION IN A PROTEST THAT INTENTIONALLY CREATED A HEALTH AND SAFETY HAZARD. ............................................................................ 10 a. The balancing of the interests weighs in favor of the school district’s duty to ensure the safety of students and the efficiency of its operations. ............................................................................................ 12 b. The imposition of discipline in this case would not chill speech on collective bargaining negotiations ............................................................ 17 CONCLUSION ........................................................................................................ 19 2 TABLE OF AUTHORITIES Cases Page Appeal of Cuoco, 31 Ed Dept Rep 95 (1999) .................................................. 17, 18 Appeal of Tranberg, 32 Ed Dept Rep 34 (1992)…. .............................................. 17 In re Binghamton City School Dist., 33 A.D.3d 1074 (3 rd Dep’t 2006) .......... 16, 18 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ........................................... 10 Connick v. Myers, 461 U.S. 138 (1983) ..................................................... 10, 12, 16 F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978) ............................................ 10 Frasier v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 71 N.Y.2d 763 (1988) ............................................................................................ 17 Grayned v. City of Rockford, 408 U.S. 104 (1972) ............................................... 13 Jackler v. Byrne, 658 F. 3d 225 (2 nd Cir. 2011) ............................................... 12, 16 Jeffries v. Harleston, 52 F.3d 9 (2 nd Cir. 1995) ..................................................... 16 Lewis v. Cowen, 165 F.3d 154 (2 nd Cir. 1999) ................................................. 12, 16 Locurto v. Giuliani, 447 F.3d 159 (2 nd Cir. 2006) ........................................... 14, 16 MacFarlane v. Village of Scotia, 241 A.D.2d 574 (3 rd Dep’t 1997) ..................... 14 Matter of Amnawah v. Bd. of Educ. of the City of N.Y., 266 A.D.455 (2d Dep’t 1999) ................................................................................ 17 Matter of Fischer v. Smithtown CSD, 262 A.D. 560 (2 nd Dep’t 1999) .................. 17 Marchi v. Bd. of Cooperative Educational Services of Albany, 173 F.3d 469 (2 nd Cir. 1999) .................................................................................. 11 Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 336 F.3d 185 (2 nd Cir. 2003) .................................................................................. 13 3 Pagan v. Bd. of Educ. of City Sch. Dist. of N.Y., 56 A.D.3d 330 (1 st Dep’t 2008) ............................................................................. 17 Pickering v. Board of Education, 391 U.S. 563(1968) .......................................... 10 Piscottano v. Murphy, 511 F.3d 247 (2 nd Cir. 2007) ............................................. 14 Rankin v. McPherson, 483 U.S. 378 (1987) ......................................................... 10 Schenck v. United States, 249 U.S. 47 (1919) ....................................................... 10 Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) ............................................................................................... 11 Waters v. Churchill, 511 U.S. 661 (1994) ................................................. 10, 14, 16 Watts v. United States, 394 U.S. 705 (1969) ......................................................... 10 Statutory and Regulatory Authorities 8 NYCRR Part 87 .................................................................................................... 15 8 NYCRR §156.3(b)(3)(ii), (iii) ............................................................................... 15 49 CFR Parts 40, 382 and 391 ................................................................................ 14 Correction Law Art. 23 ............................................................................................ 15 Educ. Law §1604(39) .............................................................................................. 15 Educ. Law §1709(39) ............................................................................................... 15 Educ. Law §1804(9) ................................................................................................. 15 Educ. Law §1950(4)(ll) ............................................................................................ 15 Educ. Law §2503(18) ............................................................................................... 15 Educ. Law §2554(25) ............................................................................................... 15 4 Educ. Law §2854(3) ................................................................................................. 15 Educ. Law §3004-b .................................................................................................. 15 Educ. Law §3035 ..................................................................................................... 15 Educ. Law §3624 ..................................................................................................... 15 5 INTEREST OF THE AMICUS CURIAE The New York State School Boards Association, Inc. (“NYSSBA”) is a not- for-profit membership organization incorporated under the laws of the State of New York. Its membership consists of approximately six hundred and seventy (670) or ninety-one percent (91%) of all public school districts and boards of cooperative educational services in New York State. Pursuant to Section 1618 of New York’s Education Law, NYSSBA has the responsibility of devising practical ways and means for obtaining greater economy and efficiency in the administration of the affairs and projects of New York’s public school districts, on behalf of school districts and BOCES across the State. Consistent with that charge, NYSSBA often appears as amicus curiae before both federal and state court proceedings involving constitutional and statutory issues affecting public schools, and indeed has done so previously before this Court. Amongst those proceedings are: Kolbe v. Tibbetts, slip opinion December 12, 2013; Matter of the Arbitration between Shenendehowa Cent. School Dist. Bd. of Educ. v. Civil Service Employees Ass’n, Inc., 20 N.Y.3d 1026 (2013); Matter of North Syracuse Cent. School Dist. v. New York State Div. of Human Rights, 19 N.Y.3d 481 (2012); Regional Economic Community Action Program, Inc. v Enlarged City School Dist. of Middletown, 18 N.Y.3d 474 (2012); Baker v. Poughkeepsie City School Dist., 18 N.Y.3d 714 (2012); Meegan v. Brown, 16 6 N.Y.3d 395 (2011); Consedine v. Portville CSD, 12 N.Y.3d 286 (2009); Campaign for Fiscal Equity v. State of New York, 8 N.Y.3d 14 (2006); Matter of Enlarged City School Dist. of Middletown v. City of Middletown, 95 A.D.3d 840 (2 nd Dep’t 2012); New York State United Teachers Assn. v. Bd. of Regents of Univ. of State of N.Y., Case No. 513191 (3 rd Dep’t 2011, appeal settled); Scro v. Jordan-Elbridge CSD, 87 A.D.3d 1342 (4 th Dep’t 2011); Geneva City School Dist. v. Anonymous, a Tenured Teacher, 77 A.D.3d 1365 (4 th Dep’t 2010); Byram Hills CSD v. Carlson, 72 A.D.3d 815 (2 nd Dep’t 2010); East Meadow UFSD v. New York State Div. of Human Rights, 65 A.D.3d 1342 (2 nd Dep’t 2009); Wilson v. Board of Educ. Harborfields CSD, 65 A.D.3d 1158 (2 nd Dep’t 2009); Consedine v. Portville CSD, 49 A.D.3d 1289 (4 th Dep’t 2008); Putnam Northern Westchester Board of Cooperative Educational Services et. al v. Mills and Galluzzo, 46 A.D.3d 1062 (3 rd Dep’t 2007); Mineola UFSD v. Mineola Teachers Ass’n, 37 A.D.3d 605 (2 nd Dep’t 2007); Baker v. Board of Educ. of Wappingers CSD, 29 A.D.3d 574 (2 nd Dep’t 2006); In re Binghamton City Sch. Dist. v. Peacock, 33 A.D.3d 1074 (3 rd Dep’t 2006); Forest Grove School District v. T.A., 129 S.Ct. 2484 (2009); Board of Educ. of the City School Dist. of the City of New York v. Tom F., 128 S.Ct. 1 (2007); Arlington CSD v. Murphy, 126 S.Ct. 2455 (2006); C.L. v. Scarsdale Union Free School District, currently pending before the Second Circuit Court of Appeals; The Bronx Household of Faith v. Board of Educ. of the City of N.Y., currently pending 7 before the Second Circuit Court of Appeals; Zeno v. Pine Plains CSD, 702 F.3d 655 (2 nd Cir. 2012). 8 STATEMENT OF THE ISSUE Whether the lower court erred when it ruled that the School District’s interest in the safe and efficient provision of services to students did not outweigh Respondent’s exercise of free speech rights through his participation in a protest that intentionally created a health and safety hazard? The amicus curiae respectfully submits the answer is yes. 9 STATEMENT OF FACTS The amicus curiae will not recite a separate statement of facts, except as hereinafter specifically cited within the text of its brief, but will defer instead to the facts submitted by the Appellant Board of Education of East Meadow Union Free School District, and as set forth in the Record before this Court. 10 ARGUMENT THE INTEREST OF THE SCHOOL DISTRICT IN THE SAFE AND EFFICIENT PROVISION OF SERVICES TO STUDENTS OUTWEIGHED THE RESPONDENT’S ALLEGEDEXERCISE OF FREE SPEECH RIGHTS THROUGH HIS PARTICIPATION IN A PROTEST THAT INTENTIONALLY CREATED A HEALTH AND SAFETY HAZARD. Freedom of speech as guaranteed by the First Amendment of the United States Constitution is an integral right of American life. However, the ability to exchange ideas and engage in discourse is not without limitation (see Schenck v. United States, 249 U.S. 47 (1919); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Watts v. United States, 394 U.S. 705 (1969); F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978)). For example, the First Amendment does not protect “fighting words” or true threats of violence (Chaplinsky v. New Hampshire; Watts v. United States). Relevant to this case, government employees do not necessarily lose their free speech rights by virtue of their employment status. However, those rights must be “balanced against the interest of [their] employer in promoting the efficiencies in the public services it performs through its employees” (Pickering v. Board of Education, 391 U.S. 563, 569 (1968); see also Connick v. Myers, 461 U.S. 138 (1983); Rankin v. McPherson, 483 U.S. 378 (1987); Waters v. Churchill, 511 U.S. 661 (1994)). Courts have applied this well established legal principle in cases involving public school employees mindful of the unique characteristics of a 11 public school environment. As explained by the U.S. Court of Appeals for the Second Circuit: “not all restrains on free exercise and free speech rights are invalid. Frequently, the validity of a particular restraint depends on the context in which the expression occurs. And, as the Supreme Court has repeatedly emphasized, the special nature of public educational institutions gives rise to the ‘need for affirming the comprehensive authority of the State and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools’” (Marchi v. Bd. of Cooperative Educational Services of Albany, 173 F.3d 469 (2 nd Cir. 1999) (citing Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)). The case herein involves a public school employee’s alleged exercise of his free speech right through his participation in a protest to draw attention to collective bargaining negotiations. Whether the form of the protest (parking vehicles in front of the school) actually constitutes an exercise of First Amendment rights is addressed more fully by the School District in its brief. The amicus curiae agrees that the Respondent’s parking of his car did not qualify as a form of speech. Assuming arguendo that this parking activity qualifies as speech, the issue to be resolved concerns his employer’s authority to discipline him for his participation in that activity, notwithstanding his prior acknowledgement that the activity posed health and safety hazards. An impartial arbitrator found that the Respondent’s action as an employee in this case intentionally created a health and safety hazard by his purposely parking his car in front of the school so students would have to be dropped off in the 12 middle of the road. Based upon that finding, the arbitrator fined him $500. On appeal, however, the court below determined Respondent’s activity was protected by the First Amendment. But based upon the well-established precedent outlined above, and the reasons further discussed below, the School District in this case did not violate the First Amendment by seeking to discipline Respondent for his actions at issue herein. Respondent knowingly and intentionally created a health and safety hazard. In this regard, Respondent’s action are no different from those of someone who falsely utters “fire” in a crowded theater without regard to the health and safety hazards that can result from such a statement. Moreover, the Respondent’s actions precluded the School District from properly protecting its students and staff, and negatively affected the efficient operation of the school district. a. The balancing of the interests weighs in favor of the school district’s duty to ensure the safety of students and the efficiency of its operations. The lower court erred in not giving “full consideration” to the School District’s interest in the “effective and efficient fulfillment” of its duty to protect students and staff from harm (see Connick v. Myers, 461 U.S. at 150-151). Courts have acknowledged the need for “greater leeway to control employees’ speech that threatens to undermine” the provision of essential services (Lewis v. Cowen, 165 F.3d 154, 161 (2 nd Cir. 1999), see also Jackler v. Byrne, 658 F. 3d 225 (2 nd Cir. 13 2011)). The education of students in a safe environment is such an essential service. Accordingly, in Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court held that the city had a compelling interest in having an undisrupted school session conducive to students’ learning. It then determined that the city’s anti-noise ordinance which prohibited a person on grounds adjacent to a school building during school hours from willfully making a noise or diversion that disturbs or tends to disturb the peace or good order of the school session did not unnecessarily interfere with First Amendment rights (Id. at 119). According to the court, the school could not “tolerate boisterous demonstrators who drown out classroom conversation, make studying impossible, block entrances or incite children to leave the school house” (Id. (emphasis added)). In Melzer v. Board of Education of the City School District of the City of New York, 336 F.3d 185 (2 nd Cir. 2003), the court determined it was permissible for the district to dismiss a teacher based upon his active membership in the North American Man Boy Love Association (NAMBLA) which advocates for changes in attitudes and law regarding sexual activity between men and boys. The disruptions that occurred upon his NAMBLA membership becoming public, not only compromised the learning environment, but also the “educationally desirable interdependency among parents, teachers and administrators” (Id. at 198-199). 14 This disruption was deemed by the court to supersede any alleged First Amendment right that this employee claimed to have. Both the above cases reflect a strong public policy that places great priority upon student safety and the efficient running of public schools. The case herein presents a similar situation to that in Melzer in that the Respondent’s action compromised the safety of students and the interdependency among school administrators and teachers to ensure student safety. Other cases outside the school context have also upheld the imposition of discipline upon government employees for the exercise of free speech rights based upon the interference with the government’s safe and efficient operation (see Waters v. Churchill, supra; Piscottano v. Murphy, 511 F.3d 247 (2 nd Cir. 2007); Locurto v. Giuliani, 447 F.3d 159 (2006); MacFarlane v. Village of Scotia, 241 A.D.2d 574 (3 rd Dep’t 1997)). Likewise, a wide range of federal and state laws and regulations directed at ensuring the safe and efficient operation of public schools further illustrate the principle that public school employees’ constitutional rights can be limited in order to protect students and ensure safe and efficient school operations. For example, notwithstanding Fourth Amendment search and seizure protections, school bus drivers as holders of commercial licenses are subject to federally mandated random drug and alcohol testing (49 CFR Parts 40, 382 and 391). They also must undergo physical exams and performance tests to 15 prove their continued fitness to drive a school bus (Educ. Law §3624; 8 NYCRR §156.3(b)(3)(ii), (iii)). In New York State, candidates for teacher and administrative certification and others applying to work at a school in a position where they will reasonably be expected to have contact with students must be fingerprinted and given clearance to work in the schools (Educ. Law §§3004-b, 3035; 8 NYCRR Part 87). They may be denied clearance for certification and/or employment if their criminal background checks reveal, in part, prior offenses that warrant their being deemed a danger to students and other school staff (Educ. Law §3035; Correction Law Art. 23; see also Educ. Law §§1604(39), 1709(39), 1804(9), 1950(4)(ll), 2503(18), 2554(25), 2854(3)). When examining the lower court’s decision within the context of the framework set forth above, its error is abundantly clear. The lower court correctly determined that the arbitrator’s award was not arbitrary and capricious. However, it erred in finding that the Respondent’s participation in the activity underlying this appeal did not rise to a level that interfered with the safe operation of the school. Prior to his participation, Respondent acknowledged that the activity in question could potentially create safety hazards. He nevertheless intentionally chose to engage in the activity and thereby create such hazards. As the record shows, children were dropped off in the middle of the street in a rain storm due to the parking of respondent’s and others’ cars on both sides of the street blocking the 16 sidewalks in front of the school (see Record at 25). That parking in those spots was not apparently illegal and that no students were injured is irrelevant. Respondent chose to disregard the risk of harm inherent in the activity. In support of its disciplinary actions against Respondent, the School District need only make a substantial showing of likely interference and not actual disruption (Waters v. Churchill, 511 U.S. at 673, see also Jackler v. Byrne; Lewis v. Cowen; Locurto v. Giuliani; Jeffries v. Harleston, 52 F.3d 9 (2 nd Cir. 1995)). The record herein clearly establishes that likelihood. A school district’s ability to discipline employees who knowingly and intentionally create health and safety hazards for students and others should not be dependent on the occurrence of actual injury (Connick v. Myers). An actual injury requirement would certainly violate “New York’s explicit and compelling public policy to protect students from the harmful conduct of adults” (In re Binghamton City School Dist., 33 A.D.3d 1074, 1076 (3 rd Dep’t 2006)). Additionally, the lower court completely disregarded the fact that sixteen teachers who did not participate in the protest were made late to school that day by the resulting traffic congestion. The School District has a vested interest in its faculty and staff arriving in a timely manner to ensure that there are an appropriate number of adults available to supervise students and dispense instruction and other services on schedule. The importance of the timely arrival and presence of staff 17 has been recognized by decisional law that acknowledges excessive absenteeism and lateness as a sound basis for school districts to bring disciplinary charges against tenured faculty and to dismiss probationary teachers and administrators (see Frasier v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 71 N.Y.2d 763 (1988); Matter of Amnawah v. Bd. of Educ. of the City of N.Y., 266 A.D.455 (2 nd Dep’t 1999); Matter of Fischer v. Smithtown CSD, 262 A.D. 560 (2 nd Dep’t 1999); Pagan v. Bd. of Educ. of City Sch. Dist. of N.Y., 56 A.D.3d 330 (1 st Dep’t 2008); Appeal of Tranberg, 32 Ed Dept Rep 34 (1992); Appeal of Cuoco, 31 Ed Dept Rep 95 (1991)). Tardiness and absence both disrupt the educational process and pose safety concerns that adversely impact students (Matter of Fischer v. Smithtown CSD; Appeal of Tranberg; Appeal of Cuoco). For all the foregoing reasons, the lower court’s failure to give “full consideration” to the School District’s interest in ensuring both the safety of students and its efficient operation is inconsistent with well-established public policy and law. Therefore, the amicus curiae respectfully submits that it must be overturned. b. The imposition of discipline in this case would not chill speech on collective bargaining negotiations. The lower court also erred when it ruled the disciplinary measures undertaken by the School District were likely to chill speech on the important 18 matter of collective bargaining negotiations. However, the School District did not seek to discipline teachers for their speech on negotiations but rather for the intentional creation of a health and safety hazard in knowing disregard for the safety of students. Furthermore, as more fully addressed by the School District in its brief, the likelihood of chilling speech about collective negotiations is minimal since teachers had picketed in other forms that did not present a danger to students many times previously without disciplinary consequences. Indeed, a solitary teacher picketing on the sidewalk on the same day as the event in question, who did not create a health and safety hazard, did not face any disciplinary charges. Additionally, the penalty sought by the School District (a one month suspension without pay, rather than something more severe) shows the School District did not seek to chill speech but rather to emphasize the duty to protect students. Teachers, like school districts have a duty to protect students (see In Re Binghamton City School Dist.; Appeal of Cuoco). School districts have the right to discipline employees who, instead of protecting students, would jeopardize their safety. 19 CONCLUSION For all the foregoing reasons, the amicus curiae respectfully requests that this Court reverse the decision of the court below and confirm the arbitrator’s decision at issue herein, and grant any such other relief as the Court might deem appropriate. Dated: January 17, 2014 Latham, New York Respectfully Submitted by: __________________________ JAY WORONA, ESQ. KIMBERLY A. FANNIFF, ESQ. Attorneys for Amicus Curiae New York State School Boards Assn., Inc. 24 Century Hill Drive, Ste 200 Latham, New York 12110-2125 Telephone: (518) 783-0200