Religious freedom and employment

Religious freedom and employment
Marchi v BOCES, 2nd Cir., 173 F.3d 469

A school risks violating the Establishment Clause of the U.S. Constitution if any of its teachers’ activities give the impression that the school endorses a religion.

But how far can a school board go in limiting a teacher’s classroom speech on religious issues before it tramples on another Constitutional guarantee: the right to free expression? The U.S. Court of Appeals for the Second Circuit, which includes New York State, wrestled with those issues in the Marchi case.

Dan Marchi, a certified special education teacher in the Capital Region BOCES, taught socially and emotionally disturbed high school students. Marchi said he “underwent a dramatic conversion to Christianity,” and admitted that he shared this experience with his students.

In the fall of 1991 he modified his instructional program to discuss topics such as forgiveness, reconciliation, and God. He used a tape, Singing the Bible, in class and voiced his thankfulness to God in at least one letter to a parent.

After Marchi ignored letters directing him to refrain from using religion as part of his instructional program, the BOCES filed charges of insubordination and “conduct unbecoming a teacher” against him. A state Department of Education hearing officer found that Marchi had committed an act of insubordination and imposed a penalty of six months’ suspension without pay.

However, Marchi’s return to teaching was conditioned on his commitment, in writing, to adhere to a directive that he would not discuss religion in class. Upon advice of his attorney, Marchi said that he would adhere to the directive.

Marchi then filed a civil rights complaint pursuant to 42 USC 1983, alleging that:

1. By suspending him in 1995, BOCES violated his rights to academic freedom, free association, free speech, and free exercise of religion, as well as his rights under the Religious Freedom Restoration Act;

2. BOCES violated his right to due process and retaliated against him when deciding his classroom assignment upon his return to teaching;

3. The directive he accepted was unconstitutionally vague and overbroad; and

4. The directive “proscribe(d) protected speech between Marchi and students’ parents.”

A federal district judge dismissed his complaint, saying “thousands of teachers of common intelligence are able to distinguish between their instructional program and their personal life and do so without violating the establishment clause.” In addition, the District Court found that the challenged directive “addresses only [Marchi’s] instructional program and no other aspect of [his] personal life”.

Marchi appealed the ruling. The Circuit Court agreed with the lower court, holding that while “the directive is unquestionably a restraint on Marchi’s First Amendment rights,” not all restraints on free exercise and free speech rights are invalid. The court said that the validity of a particular restraint depends on the context in which the expression occurs.

The Circuit Court noted that the decisions that governmental agencies make in determining when they are at risk of Establishment Clause violations are difficult.

In dealing with their employees, public employers cannot be expected to resolve so precisely the inevitable tensions between the Establishment Clause and the Free Exercise Clause “that they may forbid only employee conduct that, if occurring, would violate the Establishment Clause and must tolerate all employee conduct that, if prohibited as to non-employees, would violate the Free Exercise Clause.”

In discharging its public functions, said the Court, the governmental employer must be given some latitude and the employee must accept that he or she does not retain the full extent of free exercise rights that he or she would enjoy as a private citizen.
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The right to appeal an arbitration

The right to appeal an arbitration
Wilson v NYC Bd. of Ed., 261 AD2d 409

The Wilson decision illustrates a basic tenet to arbitration under a collective bargaining agreement: the “owners” of the arbitration are the parties to the Taylor Law agreement. Those parties typically are the employer and the union.

The individual employee whom the grievance involves is not a party to the arbitration. Accordingly, the union has the right to decide whether to appeal an arbitration decision. The individual union member is not a party to the arbitration and lacks this right, as Nancy Wilson discovered.

Wilson was a teacher in New York City from 1984 until 1996, when the Board of Education decided to terminate her. Wilson’s union initiated a grievance proceeding on her behalf to challenge her termination. After the grievance was denied, the union filed a demand for arbitration as provided for in the collective bargaining agreement.

The arbitrator rejected the appeal, upholding the school board’s decision to terminate Wilson.

Wilson then filed a petition seeking to have the arbitrator’s award vacated pursuant to Section 7511 of the Civil Practice Law and Rules. The Appellate Division dismissed Wilson’s petition on the grounds that Wilson did not have any standing to challenge the arbitration award. The court noted that she was neither a “party” to the collective bargaining agreement nor a “party” to the arbitration.

Under the circumstances, ruled the court, only an employer or a union has standing to ask a court to vacate an arbitration award or have it confirmed. The employee involved cannot do this on his or her own behalf unless he or she is able to demonstrate that the union’s decision not to proceed was made in bad faith.
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Right to counsel during administrative disciplinary action

Right to counsel during administrative disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307, motion for leave to appeal denied, 99 NY2d 509

Employees against whom disciplinary charges have been filed typically have the right to (1) testify on their own behalf and (2) the right to representation by an attorney. Such rights are standard in the disciplinary provisions of collective bargaining contracts as well as disciplinary statutes such as Section 75 of the Civil Service Law and Section 3020-a of the Education Law.

The Elmore decision illustrates that an employer who seeks to limit an employee’s access to counsel during a disciplinary proceeding can be viewed by the courts as committing a fatal error.

The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Elmore, pursuant to Section 3020-a. Elmore’s personal testimony took place on various dates over a period of ten weeks.

At the district’s request, the hearing officer ordered Elmore not to “confer with his attorney about his testimony over the breaks in the hearing.” Nor could Elmore “review transcripts of his testimony during breaks in his testimony.”

Found guilty of the charges, Elmore asked the Supreme Court, Nassau County, to vacate the award pursuant to Section 7511 of the Civil Practice Law and Rules [CPLR].*

Elmore contended the hearing officer’s order constituted “misconduct by the arbitrator” within the meaning of Article 75 of the CPLR because the order effectively denied him the right to counsel.

The district cited a ruling in a criminal matter where the Court of Appeals upheld a lower court’s “restriction of conferencing between a defendant and his attorney during a recess in the course of a criminal trial” [People v Enrique, 80 NY2d 869] in support of its position. But Justice Geoffrey J. O’Connell was not persuaded Enrique was analogous because that ruling pertained only to a single, brief recess period.

The court said that a closer approximation of Elmore’s situation was addressed in People v Carracedos, 89 NY2d 1059. In Carracedos the Court of Appeals ruled that the preclusion of communications between counsel and client during a single overnight recess was a violation of the accused’s right to counsel. Elmore had demonstrated that he was prevented from communicating with his attorney for “weeks at a time” in the middle of his testimony.

Holding that Elmore’s rights were prejudiced by the hearing officer’s order barring him from speaking with his attorney, Justice O’Connell vacated the arbitration award in its entirety. The Appellate Division affirmed the ruling.

[For decisions addressing Elmore’s being placed on leave without pay in concert with this disciplinary action, see Elmore v. Mills, 296 AD2d 704 and Elmore v. Plainview Old Bethpage Central School Dist., 299 AD2d 545].

* N.B. Section 3020-a, as amended, provides that appeals from a Section 3020-a hearing officer’s determination must be filed within ten days pursuant to Section 7511, CPLR.
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