N.Y. Teachers Must Pay for Disruptive Protest

ALBANY, N.Y. (CN) - Protesting teachers who parked bumper to bumper in front of a Long Island school may have engaged in protected speech, but that does not foreclose discipline over the disruptions that ensued, New York's highest court ruled.

"We conclude that, although petitioners' speech as embodied in the parking demonstration was protected by the First Amendment, petitioners' interests in engaging in that constitutionally protected speech in a manner that interfered with the safety of students were outweighed by the district's interests in maintaining an orderly, safe school, and the ... discipline imposed here was justified," Judge Sheila Abdus-Salaam wrote Tuesday for a majority of the Court of Appeals.

Two judges on the seven-member panel dissented, and one concurred in the result but disagreed that the teachers' conduct was protected speech.

For more than two years, members of the East Meadow Teachers Association staged twice-weekly informational pickets at Woodland Middle School in Nassau County after their contract with the East Meadow Union Free School District expired in 2004.

Most weeks, they picketed on Monday and Friday mornings, before school, walking along the sidewalk in front of the grade six through eight school with protest signs.

In planning for a picket on a March 2007 morning, when heavy rain was forecast, the teachers decided to park their cars in front of the school with their signs in the windows so parents could see them as they dropped off students.

With eight teachers' cars filling both sides of the narrow, two-way public street that morning, parents were unable to drop their children curbside. The street became congested with cars and kids, and a traffic jam resulted. Other teachers were in turn late for school, and administrators scrambled to cover unattended homerooms.

Two weeks later, the district initiated disciplinary action against the 16 teachers who participated in the parking picket. Following arbitration hearings, they were found guilty of misconduct and fined.

Two of the teachers, Richard Santer and Barbara Lucia, sued in Nassau County Supreme Court to vacate their fines of $500 and $1,000, respectively. A panel of appellate judges eventually found that they had a case, but the state's highest court has now concluded otherwise.

In its 26-page ruling, the Court of Appeals noted how "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, Judge Abdus-Salaam wrote, courts also have found 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."

The 1968 U.S. Supreme Court decision Pickering v. Board of Education established the test for weighing the interests of public employers and public employees.

The first part of the test asks whether the speech that led to an employee's discipline "relates to a matter of public concern." In the case of the parking picket, the contract dispute "is a political and social issue of broad public import," Abdus-Salaam wrote.

The second part of the test requires the public employer to show "that the discipline arising out of the employee's protested activity was justified."

Here the East Meadow district "need only 'make a substantial showing that the speech is ... likely to be disruptive' to satisfy the balancing test and meet its burden," Abdus-Salaam wrote.

The district showed that "actual disruption" occurred at the middle school when the traffic jam caused by the parking picket resulted in more than a dozen teachers reporting late to school, according to the ruling.

Abdus-Salaam also found that nothing in the disciplinary actions suggested the district was motivated by "the content of petitioners' speech."

Teachers had been staging informational pickets for a while without incident.

"There is no evidence that the discipline here has 'chilled' or will 'chill' speech on matters of public concern or discourage union picketing," Abdus-Salaam wrote.

The reversal reinstates the fines from the arbitration awards vacated by the Appellate Division.

Judges Victoria Graffeo, Susan Read and Eugene Pigott concurred in the opinion, while Judge Robert Smith concurred only in the result.

"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, quality for First Amendment protection," Smith wrote.

Chief Judge Jonathan Lippman joined a dissent by Judge Jenny Rivera, which calls the majority decision "flawed" because it relies on "school administrators' self-serving testimony" to show the potential for disruption under the Pickering test.

"I would affirm the Appellate Division's orders and its conclusion that the district violated the teachers' free speech rights," Rivera wrote.

Arguing for teachers Santer and Lucia was Sherry Bokser of the New York State United Teachers in Manhattan. George Pauta of Littler Mendelson in Manhattan represented the school district.

The New York State School Boards Association submitted a brief as amicus curiae.

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