Public school teachers have constitutional rights to wear political buttons while in school, according to the United Federation of Teachers. But not according to the United States District Court in Manhattan.
In Weingarten v. Board of Education, a case first brought in 2008, a presidential election year, the plaintiffs, United Federation of Teachers and several individual teachers, claimed that the school chancellor's regulations banning campaign buttons and distribution of political materials among teachers in Board of Education buildings, i.e., schools, violated the teachers' free speech rights under the federal and state constitutions. (The case refers to the Board of Education throughout -- not the Department of Education.)
The chancellor's regulations provided that "while on duty or in contact with students, all school personnel should maintain a posture of complete neutrality with respect to all candidates." The regulation also banned the distribution, posting, of displaying of "material supporting any candidate, candidates, slate of candidates, or political organizations/committees" in any school building. While there were exceptions for political items of interest that might appear in teachers' newsletters, for example, the regulation generally prevented teachers from placing political material in colleagues' mailboxes or on teachers’ bulletin boards in teachers' meeting places.
When the case was originally brought in the U.S. District Court for the Southern District of New York Judge Lewis A. Kaplan issued a temporary order, which stopped the city from banning candidate-related political material on teachers' union bulletin boards in areas closed to students, and also from placing such materials in staff mailboxes. But then -- and now in the latest decision -- the court denied the teachers' attempt to lift the ban on the wearing of political buttons. The court found a "clear relationship" between the ban on political buttons and the Board of Education's "legitimate pedagogical interests in avoiding the inevitable misperceptions among a minority of students that the views reflected by a teacher's political button are endorsed by the school district and also that the entanglement of their public educational mission with partisan politics."
In light of the court's 2008 interim order, the Board of Education revised its regulation to allow dissemination of the relevant materials solely among teachers. At the same time, it strengthened the section on political buttons to say, "While on duty or in contact with students, school personnel may not wear buttons, pins, articles of clothing or any other items advocating a candidate, candidates, slate of candidates or political organization/committee."
Chancellor Joel Klein's position was that "displays of political partisanship by teachers in the schools, particularly in the classroom, to a captive audience of students, are inconsistent with our educational mission. When teachers wear political paraphernalia in an environment free of partisan politician influence . . . . Partisan political activity by staff in the presence of students . . . sends the message that the view expressed carries the support of the school system."
To counter that position, the plaintiffs retained a professor of educational psychology. David Moshman of the University of Nebraska would testify if a trial were held, about "the capacity of adolescents, specifically high school age students, to understand the nature of free speech and official free speech not representing the curriculum viewpoint of the school."
The court gave little weight however to Moshman's statements, partly for technical reasons, but also on the merits. In papers submitted on behalf of the teachers' union, Moshman theorized that young children might be unable to distinguish between a teacher's opinions and the school's, and so the regulation might be reasonable in an elementary school. But for middle school students, he thought a teacher's explanation about personal free speech would be sufficient. And once in high school, he claimed, students "spontaneously understand that a teacher's [political] button is not part of the curriculum." Most of these teenagers, Moshman said, would understand the concept of free speech and a teacher's right to express political preferences even without an explanation. But Moshman did concede that a small percent of high school students might misunderstand.
Kaplan found plaintiffs' contentions lacked merit and dismissed the suit without it ever going to trial. In his written opinion, he said that policy makers overseeing "public schools are constitutionality permitted, within reason, to regulate the speech of teachers in the classroom for legitimate pedagogical reasons." The court then concluded that the appearance of political buttons worn by teachers, "may improperly influence children and impinge on the rights of students to learn in an environment free of partisan political influence."
The judge found that the regulation, when carried out in a professional manner and in good faith, is not a "covert attempt to favor one viewpoint over another." After more than a year of litigation, he declared the regulations to be constitutional.
Emily Jane Goodman is a New York State Supreme Court justice
Forty-nine states in this country recognize "no fault" divorce or allow divorce for "irreconcilable differences." Only New York requires that one party in all contested divorces establish that the other was at "fault." Unless a prior separation agreement has been filed, the state's law requires the plaintiff partner prove the other spouse committed adultery, abandoned them, was cruel or in prison.
Now, in Davis v. Davis, a Brooklyn appellate court has rejected a claim that might have expanded the grounds for divorce in the state. The court would not grant the wife a divorce after a 41-year marriage on the grounds of "social abandonment." Instead, the court ruled that social abandonment is not abandonment; only physical or sexual abandonment qualifies.
In this divorce case, euphemistically known as a "matrimonial" action, the plaintiff’s claim of abandonment or "constructive" abandonment was unsuccessful. Abandonment is defined as leaving without good reason and not returning for at least a year. In cases involving so-called constructive abandonment, the plaintiff alleges and proves that the defendant abandoned him or her unjustifiably by refusing, for at least one year, to have sexual relations despite repeated demands.
In her complaint, the wife, Novel Davis, did not allege that her husband, Shepherd Davis, refused to engage in sexual relations with her, but rather that he refused to participate in a mutual social life, such as dining together and sharing holidays and celebrations. Granting a divorce on this basis would, the court found, have the effect of expanding the grounds for divorce, which the court does not have the power to do.
"The plaintiff's allegation of social abandonment may appropriately be viewed as merely another way of claiming 'irreconcilable differences’ between spouses that do not recognize a cognizable ground for a divorce,” wrote Justice Mark Dillon of the Supreme Court Appellate Division, 2nd Department.
Novel Davis also had complained that her spouse's rejections constituted cruelty and inhuman treatment, but the cruel and inhuman allegation was not before the Appellate Division, so the decision concerned only the constructive abandonment claim.
"The essence of abandonment is the refusal of one spouse to fulfill 'basic obligations springing from the marital contract,'" the court said. Since the case did not involve one spouse leaving the home without good reason or locking the other spouse out of the marital home, the issue in Davis v. Davis, the court said, is whether refusal to share a life is as legally significant as refusal to have sex.
Since 1926, abandonment in New York has been extended to "constructive" abandonment, which has meant the unjustified, willful, continual denial of sexual relations. The original case, though, involved a refusal to consummate a marriage until a religious ceremony was held.
In 1960, the New York State Court of Appeals noted that marriage "involves something far more fundamental than mere physical propensity, and, as a consequence, abandonment is not limited to mere technical physical separation.” The Court of Appeals theory in that case held that the denial of “a marital right strikes at the institution of marriage," and therefore the refusal by one to engage in a sexual relation “undermines the central structure of marriage.”
In explaining the rationale for not extending the definition of abandonment further in the Davis case, Dillon wrote for the court that the legislature has never expanded the definition of abandonment beyond its literal meaning, even though the Court of Appeals did extend its meaning to constructive abandonment or denial of sex. Allowing divorce on the grounds of "social abandonment," he said, would be the same as permitting divorce on the basis of "irreconcilable differences," which is not recognized as a basis for divorce in New York.
The Appellate Division also relied on the longevity of the current definitions. Since the definitions were long-standing, the judges ruled, there is nothing to suggest that the meaning has changed. In addition, broadening the grounds for divorce would usurp legislative function.
Returning to the 1960 language of the Court of Appeals, the Brooklyn court reiterated, "Sexual relations between a man and woman are given a social and legally sanctioned status only when they take place in marriage and in turn, marriage itself distinguished from all other social relations by the role sexual intercourse between parties plays in it."
The court further found that determining social abandonment would be difficult, subjective and not based on fact. That is, abandonment or even constructive abandonment involves a one-year period and specific details, while recognition of social abandonment would be vague. "We predict," said the court, "that . . . no matter what herculean efforts could be undertaken to establish its precise definition," the recognition of social abandonment as grounds for divorce "would open a quagmire of varied factual claims, defenses, and permutations that would be to the everlasting consternation of the matrimonial bar and bench.”
Fifty years later, the current decision adopts that thinking, though it adds, "Social interaction between spouses, while certainly important to a healthy marital relationship, receives less legal recognition and protection."
Emily Jane Goodman is a New York State Supreme Court justice.
Emily Jane Goodman is a New York State Supreme Court Justice
In the city of parades, the chain of events sparked by the parade that was like no other may finally be ending -- nine years later. The U.S. Court of Appeals in Manhattan has issued an opinion ending the litigation with a denial of a habeas corpus petition by Abel Ortiz.
As the Puerto Rican Day parade was winding down in the late afternoon of June 11, 2000, at the Central Park South entrance to Central Park, approximately 40 men began attacking women -- tourists, rollerbladers and parade-goers. Videos tapes and the testimony of eye witnesses, portrayed the men taunting their victims, ripping their clothing and manhandling them, punching, kicking and dragging them, and touching their breasts and vaginas.
Arrests were eventually made, although according to victims and witnesses, police officers initially failed to respond to pleas for help. Ortiz was one of the men arrested. Following a jury trial at which numerous complainants and witnesses testified, he was convicted of rioting and assault, but not sexual abuse. Acting Justice Bernard J. Fried sentenced him to five years in prison.
Ortiz has appealed at three levels, representing himself at the first two. His theory was that his conviction should be reversed on a novel and technical basis. He argued, as his trial counsel had, that he could not be guilty of riot in the first degree. Ortiz maintained that he had left the scene and so should not be responsible for the acts of others once he was gone. He claimed the state's law was unconstitutional, a denial of due process, because “it fails to provide a person of ordinary intelligence fair notice of what is prohibited.”
Videotapes showed Ortiz in the crowd, laughing, smiling, clapping and grabbing a woman and eventually saying, "Hey everybody be quiet, the bitch is over there down the road by the pole."
Based on interviews with Anne Peyton Bryant, the first of the assaulted women to reach a couple of police officers and beg for help, and probably the woman the statement referred to (Bryant later sued the police department for failure to respond and protect, and settled with the city), it is likely that the last word was not "pole," but "police." Either way the statement was not accepted as an effort to stop the rioting, assaults and sexual abuse that were taking place.
In his decision, Fried rejected the defendant’s challenge to the riot statute and conviction. He ruled that "once one joins a riot that person remains criminally liable for the conduct set in motion until he withdraws."
The jury was instructed that “the law punishes joint behavior . . . and one who joins a riot takes it as one finds it . . . Merely leaving the riot scene would not end one's criminal responsibility for someone’s actions. . . . A participant is responsible for the consequences of the group’s joint action or the conduct set in motion by the riot regardless of whether that person was actually there or present at the precise moment of the conduct. "
Moreover, "once one joins a riot that person remains criminally liable for the conduct . . . until he makes substantial effort to end the conduct.” In other words, without proof of substantial efforts to end the riot, Ortiz “was criminally liable for acts" after he left the scene. The statement made by Ortiz to the other men was not considered a serious effort to stop the rioting.
Going as far as it could in the New York State courts as People v. Ortiz, the case of Ortiz v. N.Y.C. Parole in Bronx, reached the federal appeals court. That court appointed a lawyer for Ortiz.
Upholding three lower courts, the three-judge bench of the Court of Appeals for the 2nd Circuit did not find the original New York interpretation unreasonable and did not find that any constitutional/due process rights were violated, even though it was the first time the issue had come up in the New York State courts. They concluded that Ortiz was not deprived of fair warning that his conduct was prohibited, and they rejected his contention that the law was not clear that his conduct was criminal.
They also agreed that the language of the law did not deprive Ortiz of "fair warning that his conduct was prohibited.” Once a law is enacted, people are bound by it even though they may not actually be familiar with it. Thus, the often-heard words, "Ignorance of the law is no excuse."
The Due Process Clause, the judges just below the Supreme Court of the United States held, "requires only that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden, and thus not lull the potential defendant into a false sense of security, giving him no reason to suspect that his conduct might be within its scope."
Still, even while rejecting Ortiz’s claim that the state court misinterpreted the statute's plain meaning, the Circuit Court opinion may be seem as equivocal, since it quotes from an old U.S. Supreme Court case, that the riot law “ could have been drafted with greater precision. Many statutes will have some inherent vagueness, for in most English words and phrases there lurk uncertainties."
While the judges found that the state’s interpretation did not violate petitioner’s due process expectations, and his "fair notice claim lacks merit," it may have opened the door for an appeal to the U.S. Supreme Court. Other jurisdictions have reached the opposite result on similar statutes.
The Supreme Court of the U.S. accepts very few cases, and it is unlikely that this would be one of them. However, according to the New York Law Journal, Ortiz and his court-appointed attorney have not ruled out taking one final step.
Emily Jane Goodman is a New York State Supreme Court Justice