Requiring teachers to get school's permission to use school's internal mailboxes to distribute personal materials does not violate free speech rights

Requiring teachers to get school's permission to use school's internal mailboxes to distribute personal materials does not violate free speech rights
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Policastro v. Tenafly Bd. of Educ., ___F.Supp. 2d____ (D. N.J. May 7, 2010), is an interesting case. A district court in New Jersey has ruled that school district officials did not violate a teacher’s First Amendment right to freedom of speech when they disciplined him for placing personal correspondence in teachers’ internal mailboxes in contravention of the district’s materials distribution policy requiring teachers to obtain prior permission.

The court concluded that the policy constituted a reasonable content-neutral time, place and manner restriction.

The court rejected Policastro’s contention that based on the free speech principles enunciated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1968), that he had the right “to use the teacher mailboxes without administrative permission.” The court explained that when the speaker is a government employee, the public employer may restrict speech that “does not relate to matters of public concern as long as the employee’s interest in speaking does not outweigh the government’s interest in prohibiting him or her from doing so” under Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), as refined in Garcetti v. Ceballos, 547 U.S. 410 (2006). Like Tinker, however, the Pickering/Carcetti standard involves content-based restrictions, and is not applicable to content-neutral limitations on government employee speech like the regulation at issue here.

Editor's Comments: A similar issue was considered by PERB.

The Public Employees Federation [PEF] filed a complaint with PERB after a PEF board member, state education program supervisor C. Michael Darcy, lost his State e-mail privileges because he used his account to conduct union business.

Darcy lost his department e-mail privilege after the Governor's Office of Employee Relation's [GOER] circulated a memorandum to state departments and agencies indicating that the use of state equipment to conduct union business was "strictly prohibited."

PEF conceded that Darcy, and other PEF officials, have used the state's e-mail to discuss union business but contended that this is a "past practice" and thus any change should have first been negotiated with the union. GOER disagreed, explaining that its reminder simply reflected a management policy that dates back to the 1970's.

In a case involving "snail-mail" rather than e-mail, [Roosevelt Teachers Association, 16 PERB 4545] PERB said that a union does not have any statutory right to access employee mailboxes on employer's property. In the absence of a contractual provision permitting such access, PERB ruled, an employee union representative may be denied approval to place material in the boxes. [Of course the union could distribute such information via the teacher's school mailbox by using the U.S. postal service "to deliver the mail."]

In a similar case, the U.S. Supreme Court declined to find discrimination when a school district decided not to allow an employee organization to use its internal mail system to distribute union material to its members [Perry Education Association v Perry School District, 460 US 37].

In contrast, the National Labor Relations Board ruled that the use of the employer's e-mail to communicate about union business is a protected activity within the meaning of Section 7 of the National Labor Relations Act. The case arose when nonunion Timekeeping Systems, Inc. fired an employee after he sent e-mail messages to the company's chief executive officer and fellow employees complaining about Timekeeping's new leave policies [Timekeeping Systems, Inc. v Leinweber, 323 NLRB 30].

N.B. The Taylor Law [Section 209-a.6, Civil Service Law] provides that "in applying this [Article], fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent."
NYPPL

Mandatory retirement

Mandatory retirement
Mainello v McCall, 252 AD2d 235, motion to appeal dismissed, 93 NY2d 919

In 1988 the state amended the Retirement and Social Security Law to change the mandatory age of retirement for certain members of the Police and Firefighters’ Retirement System [PFRS] from age 60 to age 57 [Chapter 795 of the Laws of 1988].

State Police Assistant Deputy Superintendent John A. Mainello challenged the requirement that he retire from his position upon his attainment of age 57 [RSSL Section 381-b(e)].

He filed a lawsuit contending that the legislature’s action violated the state Constitution. He said it contradicted the so-called “Nonimpairment Clause” (Article V, Section 7), which provides that a retiree’s retirement benefits from a public retirement system of this state are contractual and may neither be diminished nor impaired.

Mainello argued that his retirement benefits would be compromised because he would “lose three years of member service.” The Appellate Division disagreed, holding that Mainello’s early retirement would have a “minor and entirely incidental” influence on his retirement benefits.

Furthermore, the Appellate Division pointed out that the law only protects the benefits of current retirees, not the potential benefits of employees who are approaching retirement. [“(T)he fact that there can be no Constitutional impairment of pension system benefits does not create a constitutional right to stay in public employment” (see Cook v City of Binghamton, 48 NY2D 323); “(An) expectation of remaining in public employment ... is not within the scope of protection afforded by the Nonimpairment Clause.” (see Lake v Regan, 135 AD2d 312)]

In addition, the amendment requiring PFRS members to retire at age 57 “was enacted to further a legitimate public policy goal,” the Appellate Division said.

Courts will probably apply a similar reasoning to other challenges to mandated early retirement on constitutional grounds.

Judge Cardona dissented, commenting that “it is settled law that “[t]he Nonimpairment Clause of the New York Constitution was adopted in order to prevent the reduction of an individual’s retirement benefits after he or she had joined a retirement system operated by the State or one of its civil divisions.” Judge Cardona also cited Lake v Regan [supra] in support of his position.

In effect Judge Cardona took the position that a member of a public retirement system is entitled to at least the level of benefits provided by law when he or she joined the system when he or she retires. Because the system provides a “defined benefit,” Judge Cardona concluded that a member suffers an impairment of his or her constitutionally protected retirement benefit if the calculation of his or her “defined benefit” would be adversely affected by any amendment to the Retirement and Social Security Law prior to his or her effective date of retirement.
NYPPL

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.
NYPPL