Free Speech or Student Safety | FOIL Exemption | Teacher Tenure

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Teachers’ Free Speech Versus Student Safety

Teachers’ Free Speech Versus Student SafetyRecently in Santer v. Bd. of Educ. of E. Meadow Union Free Sch. Dist., __N.Y.32d__, 2014 WL 1767705, the highest court of the State held that a school district’s interest in ensuring the safety of students and maintaining orderly operations at a public middle school student-drop-off area, outweighed the teachers’ First Amendment interest in speaking on a matter of public concern. Therefore, the school district was justified in charging the participating teachers with misconduct.

The appeal involved a teachers’ union picketing demonstration that took place on a public street in front of Woodland Middle School in Nassau County. On the morning of March 2, 2007, the teachers displayed picketing signs from their cars parked where parents were dropping their children off at school. The Board of Education of the East Meadow Union Free School District charged the teachers with misconduct, alleging that they 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 curbside. After their respective hearings guaranteed under the State Education Law, the teachers were found guilty of misconduct and directed by an arbitrator to pay a fine.

The teachers challenged the arbitration awards arguing that the disciplinary proceedings commenced against them and the fine ultimately imposed, violated their right to free speech under the First Amendment of the United States Constitution. The State Supreme Court dismissed the teachers’ petitions, but the Appellate Division reversed in each case. The Court of Appeals just reversed the Appellate Division. Although the Court of Appeals agreed with the Appellate Division that the picketing demonstration was a form of “speech” protected by the First Amendment, because it addressed a matter of public concern, it came to a different conclusion with respect to what has been commonly known as the “Pickering balancing test.”

The Court of Appeals set forth the law as follows: “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. 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 regulating the speech of the citizenry in general,’ meaning that 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.’”

“Under Pickering, the determination whether a public employer has properly disciplined a public employee ‘for engaging in speech requires “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public]…employer, in promoting the efficiency of the public services it performs through its employees.”’ This balancing test recognizes that the public employer must be permitted a level of control over its employees so it may fulfill essential services, such as public safety and education, efficiently and effectively, but also that ‘[v]igilance is necessary’ to ensure public employers do not use their authority ‘to silence discourse [] not because it hampers public functions but simply because superiors disagree with the content of the employees’ speech.”’

Here, it was determined that the teachers purposefully blocked the student drop-off point by parking their cars along both sides of the road. Traffic became congested and prevented the children from disembarking at the curb. Students had to exit vehicles in the middle of the road in the rain. One teacher never supported the demonstration due to known safety risks. Thus, the Court 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.”

Home Addresses, Not Names, Exempt Under FOIL

Home Addresses, Not Names, Exempt Under FOILIn Empire Ctr. For N.Y. State Policy v. N.Y. State Teachers’ Retirement Sys., __ N.Y.3d __, 2014 WL 1767602, New York’s highest Court ruled that the State’s Public Officers Law exempts from disclosure under its Freedom of Information Law (FOIL) only the home addresses, not the names, of retirees who receive benefits from public employees’ retirement systems.

In these related cases, the petitioner, Empire Center for New York State Policy, describes itself as a “think tank” whose purpose is “to inform voters and policymakers” about issues, including pension reform. The petitioner had sought disclosure under FOIL from both the New York State Teachers’ Retirement System and the Teachers’ Retirement System of the City of New York, the names and addresses of the retired members of their systems. Both retirement systems refused to provide the names and addresses claiming the information was exempt from disclosure under the act. The “think tank” commenced Article 78 proceedings to vacate the refusals and to compel disclosure. The State Supreme Court dismissed both petitions, and the Appellate Division affirmed the dismissals in each case. The Court of Appeals reversed.

The governing statute, Public Officers Law § 89(7), also known as FOIL, states as follows:

Nothing in this article [i.e., FOIL] shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees’ retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees’ retirement system or of an applicant for appointment to public employment; provided however, that nothing in this subdivision shall limit or abridge the right of an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to article fourteen of the civil service law, to obtain the name or home address of any officer, employee or retiree of such employer, if such name or home address is otherwise available under this article.

The Court of Appeals reasoned as follows: “The answer to the question before us – are retirees’ names exempt from disclosure? – is plain from the face of the statute. It exempts ‘the home address … of a retiree,’ but not the retiree’s name. By contrast, it exempts both the name and home address of ‘a beneficiary of a public employees’ retirement system.’ A ‘beneficiary’ of a retirement system, as the term is commonly used, is a family member of an employee or retiree who is entitled to benefits after the employee’s or retiree’s death; it is so used on the website of one of the retirement systems in this case (N.Y.S. TRS, “Glossary of Benefit Terms,” at http://www.nystrs.org/main/glossary/html [last visited April 21, 2014). In some contexts, ‘beneficiary’ might be read more broadly to include a retiree, for retirees do benefit from retirement systems. But ‘beneficiary’ was obviously not used in that sense in this statute, because the statute provides a separate and more limited exemption for a ‘retiree.’” Accordingly, in each case, the Court of Appeals reversed the Appellate Division and directed the retirement systems to disclose the requested names.

Teacher Tenure Unconstitutional?

Teacher Tenure Unconstitutional?A California Judge grabbed national headlines on Tuesday, June 10, 2014 when he ruled that California’s teacher tenure statute, its teacher dismissal statute, and its “Last-In-First-Out” (“LIFO”) lay-off statute violate the Equal Protection clause of the California Constitution. “[T]he Constitution of California is the ultimate guarantor of a meaningful, basically equal educational opportunity being afforded to the students of this state.” The “California Standards for the Teaching Profession,” in its opening sentence, declares that “quality of teaching is what matters most for the students’ development and learning in schools.” The Court held that these three statutes resulted in “grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominately low-income and minority students.” Vergara v. State of California, Case No. CB484642 (Sup. Ct. L.A. Cnty., Cal. June 10, 2014).

During the course of the 30 plus day trial, the Court heard expert testimony from both sides, concerning the number and effect of “grossly ineffective teachers” in California. Experts testified that somewhere between 1% and 3% of teachers in California are “grossly ineffective,” and with 275,000 teachers employed in the state, somewhere between 2,750 to 8,250 grossly ineffective teachers are still employed. Substantial evidence was also presented that “those attending high-poverty, low-performing schools are far more likely than their wealthier peers to attends schools having a disproportionate number of under qualified, inexperienced, out-of-field, and ineffective teachers and administrators.” The effects of ineffective teachers in the classroom was quantified in a “massive study,” which found that “a single year in a classroom with an ineffective teacher costs students $1.4 million in lifetime earnings per classroom.” This was just one statistic among many presented at trial, demonstrating the “direct, real, appreciable, and negative impact” grossly ineffective teachers have on students.

United States Supreme Court precedent, dating back to Brown v. Board of Education, has recognized that students have a fundamental right to education equality under the United States Constitution, and that laws and policies which compromise this fundamental right must pass the most stringent standard of judicial review — “strict scrutiny.” Strict scrutiny requires the State to establish “not only that [it] has a compelling interest which justifies [the Challenged statutes] but that the distinctions drawn by the law[s] are necessary to further [their] purpose.” Similarly, the California Supreme Court has so held under its State Constitution, in cases dating back to 1971 (see, Serrano v. Priest, 5 Cal.3d 584 (1971)). Here, the Court held that the three statutes perpetuate education inequality, and are thus, unconstitutional.

The first challenged statute is California’s “two year” tenure statute, which states that the decision to award a teacher tenure must be formally communicated to that teacher on or before March 15 of the second year of the teacher’s employment. As a result, recommendations must be placed before the appropriate district authorities well before March 15. Thus, districts are left with only about 18 calendar months to make their decision — not “two years.” The Court held that this is not nearly enough time for districts to make such a serious and permanent decision. Nation-wide, 35 states have a three-year probationary period, and nine states have a five-year period. New York has a three-year period, although it too suffers from the same problem, with decisions on each teacher having to be made well in advance of prior to the end of the third year.

The second challenged statute, California’s teacher “dismissal statute,” affords teachers what the court described as “uber due process,” prior to termination for cause. Like New York, by statute teachers in California must be given notice of the charges, a hearing before an administrative agency, and are then entitled to a multi-stage appellate review process by the courts of the State prior to termination. Experts testified that it could take anywhere from two to almost ten years, and cost anywhere from $50,000 to $450,000 or more to bring these cases to conclusion. As an example, the first article in this newsletter, “Teachers’ Free Speech Versus Student Safety,” detailed the N.Y. Court of Appeals’ decision upholding charges filed against teachers for conduct committed in March of 2007. The California Court recognized that teachers must be afforded “reasonable due process,” but that the current regime is “so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.”

The last challenged statute, LIFO, states that layoffs must be based solely on seniority, containing no exception or waiver based upon teacher effectiveness. “No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one [is fired] and the senior grossly ineffective one [is left in place.]” By contrast, 39 other States provide either that seniority may be considered among other factors, or leave layoff criteria to the district’s discretion. New York has a similar LIFO statute and regulations to that held unconstitutional in California.

Needless to say, the defendants, the State of California and the California Teachers’ Association, will be appealing from this decision. California Judge Rolf M. Treu’s opinion included an injunction, staying any action based thereon pending appellate review. If upheld, this case will certainly have a seismic impact on teachers, teachers’ unions, and legislators in all 50 States. In the interim, it would not be surprising to see a similar lawsuit filed here in New York.

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