Woodland Middle School in East Meadow (Newsday/Viorel Florescu)
ALBANY – Long Island teachers upset over the slow pace of contract talks had a free-speech right to legally park in front of the school as a public protest, but lost their First Amendment privileges by disrupting traffic and potentially endangering children and educators, a divided Court of Appeals held on Tuesday.
In Matter of Santer v. Board of Education, 51, and Matter of Lucia v. Board of Education, 52, the state’s highest court reversed a mid-level appellate panel and reinstated fines that an arbitrator had imposed on two teachers.
By a 5-2 margin, the majority found, under Pickering v. Board of Education, 391 U.S. 563 (1968), the East Meadow Union Free school board established that the teachers’ conduct was disruptive enough to warrant discipline.
The case involved members of a Nassau County teachers union who had routinely picketed outside the Woodland Middle School as students were dropped off shortly before the school day began.
A regularly scheduled demonstration was set for March 2, 2007, when heavy rain was forecast. Rather than cancel the event or picket in the downpour, the teachers voted to park their cars along the street, displaying signs to remind parents and others of the ongoing labor negotiations.
Eight cars were legally parked end-to-end in front of the school, but not in front of two “curb cut” sections where parents often dropped off their children and which were made largely inaccessible due to the cars on each side.
As a result, traffic snarled, children had to cross the road to access the school, and several teachers who were not involved in the protest arrived to class late because of the disruption, according to the decision.
The district lodged disciplinary charges against six teachers for “intentionally creat[ing] a health and safety risk.”
Two teachers, Richard Santer, who had initially opposed the parking demonstration and persuaded his colleagues to not block the curb cuts, and Barbara Lucia, challenged the fines of $500 and $1,000, respectively, arguing they had a constitutional right to peacefully picket in a public area. Nassau County Supreme Court Justice R. Bruce Cozzens Jr. upheld the arbitrator’s decision but was reversed by a unanimous panel of the Appellate Division, Second Department.
On Tuesday, the Court of Appeals reversed the Second Department, with six of the seven judges agreeing that the demonstration constituted protected free speech and five finding that the protest was so disruptive that it did not qualify for First Amendment protection.
Writing for the majority, Judge Sheila Abdus-Salaam (See Profile) explained that Pickering, which deals with the free speech rights of public employees, “requires balancing the employee’s interest in free speech against the employer’s interest in effective government operations.” Here, Abdus-Salaam wrote, “the district met its burden of proving that petitioner’s speech was disruptive enough to justify the imposition of discipline.”
Abdus-Salaam said the evidence showed that participating teachers intentionally blocked the student drop-off area.
“Thankfully, no student was injured on account of the parking demonstration, but the district nonetheless established that petitioners’ actions created a potential yet substantial risk to student safety,” she wrote for a majority that included judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile) and Eugene Pigott Jr (See Profile). Judge Robert Smith (See Profile) concurred with the result.
“The majority has supplanted the Appellate Division’s analysis outright, even though that court applied the proper legal standard, and no abuse of discretion is discernible from the opinion’s consideration of the record before it,” Rivera said in a footnote. “[O]ur task in this case is to ensure that the facts support and conclusion, not, as the majority would have it, to recast the facts to support the majority’s view of what it considers to be the consequences flowing from the events.”
Rivera said the only issue was whether the Second Department properly applied the law to the facts. She found “scant record evidence that the parking demonstration caused teachers to arrive late, and the majority is the first fact finder to reach this conclusion.” She said the Second Department addressed only the alleged risk to children, and questioned the veracity of the “self-serving testimony” provided by school administrators who sought to discipline the teachers.
In response, Abdus-Salaam wrote in a footnote: “Ironically, while asserting that this court has engaged in impermissible fact finding and exceeded our role as a court of law, the dissent has no qualms about making credibility determinations to bolster its conclusions.”
Judge Robert Smith concurred with the result, but disputed his colleagues’ conclusion that the demonstration amounted to protected free speech.
“I am 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,” he wrote. “Disruptive or dangerous conduct does not acquire First Amendment protection simply because its purported purpose is to promote an idea.”
The appeal was argued Feb. 19 by Littler Mendelson partner George Pauta for the school district and Sherry Bokser of New York State United Teachers for Santer and Lucia. Richard Casagrande, general counsel at NYSUT, was attorney of record for the teachers.
Pauta said the decision “confirms that a school district’s interest to protect the safety and well being of its students is of paramount interest, and while teachers certainly have a First Amendment right and the right to engage in free speech activity, there are limits and certainly they cannot do so in a way that threatens the safety of students or the functioning of the school.”
NYSUT spokesman Carl Korn said the union was “pleased the court has again recognized the rights of teachers to picket and to express their First Amendment beliefs.” However, he said “we believe this is a misapplication of the Pickering test and that there was no risk to students or disruption to the school day.”
Korn said no students were injured and there was no evidence any of them were ever endangered. Bokser was not available for comment on Tuesday.
In another appeal decided Tuesday, the court held 6-0 that the Freedom of Information Law requires state and city teacher pension systems to reveal information about retirees.
Matter of Empire Center for New York State Policy v. New York State Teachers’ Retirement System, 77, and Matter of Empire Center for New York State Policy, 78, involves an Albany-based think tank and its efforts to obtain data on teacher pensions. Empire Center posts information about government spending, including payrolls, on its SeeThroughNY website (http://seethroughny.net/).
The state and city pension programs refused to divulge the information, citing a provision in Public Officers Law §89 (7) that exempts from disclosure the home address of retirees and also exempts the names of beneficiaries.
Empire Center challenged the decisions, which were upheld by the First and Third departments. Both departments said they were constrained by a 1983 Court of Appeals opinion, Matter of New York Veteran Police Association v. New York City Police Department, 61 NY2d 659. In Veteran Police, an organization sought names and addresses of retired police officers for marketing reasons and the court found the information was exempt.
Smith, writing for the court, said the lower courts read Veteran Police too broadly. He said that case dealt with the release of names and addresses, not just names, and the court was not presented with and did not decide if the Public Officers Law allows disclosure of a retiree’s name.
“Our decisions are not to be read as deciding questions that were not before us and that we did not consider,” he wrote.
The court acknowledged that with modern technology it would not be difficult for someone to learn the addresses of retirees once given their names. But it said “the idea that anyone’s privacy will be invaded is speculative.”
Smith also said that the exclusion for “beneficiaries” applies to survivors of the retiree, and not retiree himself or herself. Abdus-Salaam did not take part.
Alia Smith, a partner at Levine Sullivan Koch & Schulz, represented Empire Center. Assistant Solicitor General Jeffrey Lang argued for the state retirement system while Assistant Corporation Counsel Elizabeth Freeman appeared for the city retirement program.