First Person

Another Blow to Civic Discourse: Almontaser v. NYC Board of Education

Earlier this month, U.S. District Court Judge Sidney H. Stein issued a decision in Almontaser v. New York City Board of Education, 07 Civ. 10444, finding that a principal fired for statements leading to a misleading press report was not protected under the First Amendment.

The decision and the actions it protects are problematic on grounds of law and policy. First is the misapplication of precedent by the District Court, carried over from an earlier opinion and repeated by a Circuit Court ruling in the same case. Second, and perhaps more seriously, is the extent to which the Bloomberg administration continues to push a policy agenda squelching free expression.

Background

On August 5, 2007, New York Post reporter Chuck Bennett interviewed Debbie Almontaser, the interim acting principal of the Kahlil Gibran International Academy, a New York City public school which was due to open the following September. KGIA was the focus of intense public scrutiny for its emphasis on Arab language and culture. Also at issue was an allegation that Almontaser had ties to Arab Women Active in the Arts and Media which had created t-shirts stating “Intifada NYC.”

Asked about her affiliation with AWAAM and the t-shirts during the interview, which was organized and monitored by the New York City Department of Education’s press office, Almontaser denied any connection with the organization and explained she would never affiliate herself with an organization condoning violence. Further, she explained that the root of the word means “shaking off.”

The next day, the Post published Bennett’s story under the headline “City Principal is ‘Revolting.” with a picture of Almontaser captioned, “Furor: The Pro-violence shirt is being defended by Principal Debbie Almontaser.” The story also incorrectly added the phrase “and shaking off oppression” to Almontaser’s statement.

As a result of the ensuing controversy over Almontaser’s misattributed remarks and the paper’s incendiary language, the DOE forced her to resign the interim principal post and, when the permanent position of principal was advertised, quickly passed over her application. Almontaser then sued the DOE (technically, the New York City Board of Education) for retaliatory firing in violation of her First Amendment right to free speech.

Legal Mistake

The courts found that Almontaser lacked First Amendment protection because her remarks took place in the context of her public employment. While the facts above, as described by the District Court, clearly point to the interview as an official duty under the supervision of the DOE, Almontaser claimed that her misreported “intifada” remarks were disconnected from her statements about KGIA and her employment there.

Educators’ political statements on matters of general public interest have long been protected under the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education. But the District and Circuit courts relied on a more recent case, Garcetti v. Ceballos, which held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties.

However, the Almontaser courts failed to acknowledge Garcetti’s explicit exemption for statements related to academic matters. The majority stated, “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” at p. 13. That determination – clearly at issue but ignored in Almontaser — was reached by the Court because of Justice Souter’s clear statement in dissent:

“As for the importance of such speech to the individual, it stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools? . . . Indeed, the very idea of categorically separating the citizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s “object … to unite [m]y avocation and my vocation;” these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract. There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.” at 5, footnotes omitted.

Thus, a strong argument can be made that, despite the context of an official interview like that in Garcetti, Almontaser met that case’s exception by commenting as an educator on a matter of general public interest related to the academic focus of her school. Such a result is consistent with Garcetti and the high value the Constitution places on public discourse in a free society.

Problematic Policy

Even accepting the courts’ mistaken analysis, the firing of a principal for a controversial remark – and here, a remark she did not even make! – is dangerous public policy. By firing Almontaser, the Chancellor (and by extension, the Mayor he works for), has impoverished robust public debate, a core value of a free society.

This is nothing new. The Mayor has shown hostility to unruly voices before. His preventive detention of protestors at the Republican National Convention in 2004 was subsequently met by wholesale dismissal of police charges. He banned the wearing of campaign buttons by teachers, an action upheld in court.

But just because the Mayor can suppress speech, doesn’t mean he must suppress speech. The First Amendment exists to promote a marketplace of ideas and we are the losers when government limits access to unpopular thought.

In the Almontaser case, the Mayor’s famous espousal of principal autonomy is once again exposed as an empty promise that “You can do as you like as long as I like what you do.” Such a philosophy may lead to smooth operational control but the public sector and schools, especially, are the worse for it. Public institutions are fundamentally strengthened by American values of active civic discourse. The courts should pay heed the next time the city puts free expression to the test.

First Person

I mentor students demoralized about not having a vote. Here’s their plan for getting civically involved before turning 18

Students in the Minds Matter program.

Every Monday night during the school year, I spend time with two wonderful young women. They’re high-achieving high school sophomores from low-income families whose success would be certain if they grew up in a more affluent ZIP code.

Along with a team of other mentors, I help the students improve their writing and communication skills to help them prepare for a successful college career. That’s what I’m prepared to do.

I was less prepared for what they brought to our meeting last week, the first time we met under the tenure of a new president. They talked about feeling the consequences of the national political shift, though at 15, they knew it would be years before they could cast a ballot of their own. “We feel left out of a system that affects us too,” they said.

So our task that night became to expand our ideas about what participation in the American political system really means.

Here are five ideas we came up with, designed to help high schoolers do just that.

1. Meet elected officials. Meeting state senators and representatives during their campaigns is often the easiest way to make contact. Attend a coffee event, a party meeting, or a fundraiser where students can introduce themselves and talk about their concerns. Encourage them to be more than just another face in the crowd.

There are plenty of young, local elected officials to learn from. Dominick Moreno, a prominent Senate Democrat on the state of Colorado’s powerful Joint Budget Committee, got his start running for class president as a high school sophomore. Still only 32, he has already served in the House of Representatives and as mayor pro tem of a Denver suburb.

2. Volunteer on a campaign. This is the best opportunity for students to get an inside look at the political process and can help them establish lasting relationships with real people working in politics.

Some legislators face tough races and are out knocking on doors for months. Others spend their time differently, and in either case, candidates need help reaching out to voters, managing social media accounts, answering emails or organizing events. Plus, this work looks great on student résumés.

I tell students about my own experience. It started small: When I was 10, I passed out stickers for local elected officials at holiday parades. When I was 16, I got the chance to intern at the South Dakota state capitol. At 21, I got my first job in Washington, and at 23 I started lobbying in Colorado, affecting policy that now touches all citizens of the state.

3. Think locally. There are so many small things that students can do that will help their community become a better place on their own timeline. Help students organize a neighborhood clean-up day or tutor at an elementary school. These might feel inadequate to students when they look at the big picture, but it’s important to remind them that these actions help weave a fabric of compassion — and helps them become local leaders in the community.

4. Pre-register to vote. Voting matters, too. It sounds simple, but pre-registering addresses a root cause of low voter turnout — missing deadlines. In Colorado, one must be a U.S. citizen, be at least 16 years old, and reside in the state 22 days prior to the date of the election.

5. Affiliate with a party.
This assures full involvement in the process. Before turning 18, students can still attend party meetings or even start a “Young Democrats/Republicans” group at school. If they don’t feel like they fit with either the Republican or the Democratic parties, that’s OK — unaffiliated voters can now take part in the primary elections and help name either Republican or Democratic leaders.

Talking through these ideas helped the students I work with realize voting isn’t the only way to make a difference. One of my students has started a group that helps other young women know about birth control options, after seeing girls in her high school struggle and drop out after getting pregnant. Other students in the group have asked to learn more about the legislative process and want to testify on legislation.

They’re proving that democracy doesn’t begin and end with casting a ballot — but it does depend on taking interest and taking action.

Zoey DeWolf is a lobbyist with Colorado Legislative Services, based in Denver. She also works with Minds Matter of Denver, a not-for-profit organization whose mission is to help prepare accomplished high school students from low-income families for successful college careers.

First Person

It’s time to retire the myth that any counselor can do the job alone — even at a tiny school

A few of the author's students who graduated last year.

I waited five years to get my dream job as a counselor in a New York City public school. After all of that waiting, I was full of ideas about how I would be able to use my experience to help students navigate what can be an overwhelming few years.

I wanted to make our school counseling more individualized and full of innovative support mechanisms. I wanted our guidance department to be a place that anyone could leave with a grand plan.

A few months into that first year, in fall 2015, it was clear that my vision would be, to put it bluntly, impossible to achieve.

When I received my position at a Harlem high school in District 5, I was assigned to not only take on the responsibilities of a school counselor, but also to act as the college advisor, assign (and then frequently re-shuffle) class schedules for every student, and several other tasks. My school had just under 200 students — enrollment low enough that it was assumed this could all be managed.

This proved to be a very inaccurate assumption. I was working with a group of students with low attendance rates, and many were English language learners or students with disabilities. Many students were overage and under-credited, others were in foster care or homeless, some had returned from incarceration, and a couple were teen parents or pregnant.

The American School Counselor Association recommends a maximum school counselor-to-student ratio of one to 250. I know from experience that extremely high student need makes that ratio meaningless. Almost all of these students needed help in order to be ready to learn. Their needs tripled the feel of our enrollment.

This frequent mismatch between need and numbers puts school counselors like me in the position to do a great disservice to so many students. As the only counselor available, a seemingly small mishap with a task as crucial as graduation certification or credit monitoring could have spelled disaster for a student. I know some seniors missed certain financial aid opportunities and application deadlines, and some ninth, 10th, and 11th graders could have used more academic intervention to help them transition to the next grade level successfully.

My success at keeping our promotion and college admissions rates on the upswing was largely due to my outreach and partnership with community-based organizations that helped support several of our students. Had it not been for their assistance, I wouldn’t have achieved anything near what I did.

I’m still a counselor at my small school, and some aspects of the job have gotten easier with time. I love my job, which I think of as the most rewarding yet intense position in the building. But I still believe that there is almost no case in which only one counselor should be available for students.

Principals and school leaders directly involved with the budget must make sure to effectively analyze the needs of their student population, and advocate for an appropriately sized counseling staff. Small schools face real funding constraints. But ones serving students like mine need more than they’ve gotten.

Students’ social and emotional development and their academic success go hand in hand. Let’s not make the mistake of conflating enrollment numbers with need.

Danisha Baughan is a high school counselor and college advisor. She received her masters in school counseling in May 2010 and has held elementary, middle, and high school counseling positions since then.