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May 8, 2014

A public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large


A public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large
Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 2014 NY Slip Op 03189, Court of Appeals

Members of a teachers' union picketing on a public street in front of a district school) displayed picketing signs from their cars parked where parents were dropping their children off at school district’s Woodland School. East Meadow Union Free School District brought disciplinary charges for misconduct against certain teachers, alleging that the teachers had created a health and safety risk by parking their cars so that students had to be dropped off in the middle of the street instead of at curbside.

After their respective hearings, the arbitrators found the teachers guilty of the misconduct charge and imposed a fine as the penalty. The arbitrators, acknowledging that the parking demonstration was conducted on public property while teachers were off-duty, and that their cars were legally parked, nonetheless concluded that teachers "intended to (and did) disrupt the student drop off and that the parked cars created a health and safety risk to children who had to be dropped off in the middle of a busy street in the rain." The Court of Appeals noted that although it was "fortunate" that no child was injured, the arbitrators determined that fact was irrelevant to their findings that teachers’ intentional conduct posed a potential threat to student safety.

The teachers than sued, seeking to vacate the arbitration awards in which they were found guilty of misconduct, contending that the disciplinary proceedings commenced against them, and the discipline ultimately imposed them, a fine, violated their right to free speech under the First Amendment to the United States Constitution.

Supreme Court denied the petitions but the Appellate Division reversed in each case. Applying the two-part balancing test from Pickering v Board of Educ. of Township High School Dist. 205, Will County Ill, 391 US 563,* the. Appellate Division decided that the teachers’ speech addressed a matter of public concern and, second, that the District failed to meet its burden of demonstrating that teachers' exercise of their free speech rights "so threatened the school's effective operation as to justify the imposition of discipline."

Although the Court of Appeals said it agreed with the Appellate Division with respect to the picketing demonstration, a form of "speech" protected by the First Amendment, addressed a matter of public concern, it disagreed with the Appellate Division’s conclusions with respect to the second step of the Pickering test and reversed the lower courts’ rulings.

The Court of Appeals said that viewing the record evidence in light of established federal precedent, it concluded that “the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations at Woodland.”

The school district, said the court, also satisfied its burden of proving that the discipline imposed here was justified because the teachers created a potential yet substantial risk to student safety and an actual disruption to school operations.

Addressing the Free Speech argument advanced by the teachers, the Court of Appeals said that “It is well settled that a public employer may not discharge or retaliate against an employee based on that employee's exercise of the right of free speech” but “Equally well settled, however, is that ‘the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general,’" citing Pickering,

Accordingly, said the court, public employers "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." Thus, although "public employees like . . . teacher[s] do not leave their First Amendment rights at the schoolhouse door, . . . it is plain that those rights are somewhat diminished in public employment." Accordingly, the Court of Appeals, holding that the teachers’ demonstration constituted "speech" subject to First Amendment strictures, considered “that speech” in the context of the Pickeringbalancing test.

On the record, said the court, the teachers’ speech was on a matter of public concern and entitled to First Amendment protection. It then moved on the the “second test,” weighing the employee's First Amendment rights against the public employee's interest " in promoting the efficiency of the public services it performs through its employees'.

The interests the District asserted: “ensuring the safety of its students and maintaining orderly operations at Woodland” are legitimate said the court. As the evidence at the hearings showed that the parking demonstration created dangerous traffic conditions in front of the school that could have injured a student and that caused actual disruption to the school's operations, the school district contented that this was sufficient to justify its discipline of the teachers and that it was not required to prove that a student was actually injured for the Pickering balance to tip in the District's favor.

The majority of the Court of Appeals agreed and reversed the Appellate Division’s ruling, with costs and confirmed the arbitration award.

N.B. Justice Smith concurred but “only in the result, because [he did] not agree with the majority's view that the conduct of these teachers was speech or expression protected by the First Amendment,”  stating that he was “troubled by the implication that intentionally disruptive and dangerous conduct can, if it is designed for the purpose of calling attention to the actor's message, qualify for First Amendment protection.” In contrast, Justice Rivera dissented, stating that “I dissent from the majority's decision because I can find no legal or factual error in the Appellate Division's application of the Pickering balancing test to the facts of these cases. I would affirm the Appellate Division's orders and its conclusion that the District violated the teachers' free speech rights.”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” was posted earlier on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03189.htm
.

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