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 was an attorney representing school districts in contract talks. Here’s why I hope the Supreme Court doesn’t weaken teachers unions.

PHOTO: Creative Commons / supermac1961

Many so-called education reformers argue that collective bargaining — and unions — are obstacles to real change in education. It’s common to hear assertions about how “restrictive” contracts and “recalcitrant” unions put adult interests over children’s.

The underlying message: if union power were minimized and collective bargaining rights weakened or eliminated, school leaders would be able to enact sweeping changes that could disrupt public education’s status quo.

Those that subscribe to this view are eagerly awaiting the Supreme Court’s decision in the case of Janus v. American Federation of State, County, and Municipal Employees. At issue is the constitutionality of “agency” or “fair share” fees — employee payroll deductions that go to local unions, meant to cover the costs of negotiating and implementing a bargaining agreement.

In states that permit agency fees (there are about 20), a teacher may decline to be part of a union but must still pay those fees. If the Supreme Court rules that those agency fees are unconstitutional, and many teachers do not voluntarily pay, local unions will be deprived of resources needed to negotiate and enforce bargaining agreements.

Based on my experience as an attorney representing school districts in bargaining and contract issues, I have this to say to those hoping the Court will strike down these fees: be careful what you wish for.

Eliminating fair share fees (and trying to weaken unions) represents a misguided assumption about bargaining — that the process weakens school quality. To the contrary, strong relationships with unions, built through negotiations, can help create the conditions for student and school success. Indeed, in my experience, the best superintendents and school boards seized bargaining as an opportunity to advance their agenda, and engaged unions as partners whenever possible.

Why, and how, can this work? For one, the process of negotiations provides a forum for school leaders and teachers to hear one another’s concerns and goals. In my experience, this is most effective in districts that adopt “interest-based bargaining,” which encourages problem-solving as starting point for discussions as opposed to viewing bargaining as a zero-sum game.

Interest-based bargaining begins with both sides listing their major concerns and brainstorming solutions. The touchstone for a solution to be adopted in a bargaining agreement: Is the proposal in the best interests of children? This important question, if embedded in the process, forces both sides to carefully consider their shared mission.

For example, some districts I worked with paid teachers less than comparable neighboring districts did. It would have been unreasonable for unions to insist that their pay be increased enough to even that difference out, because that would mean reducing investments in other items of importance to children, like technology or infrastructure. At the same time, it would have been untenable for management to play “hard ball” and deny the problem, because to do so would likely lead to a disgruntled workforce.

Instead, both sides were forced to “own” the issue and collaboratively craft plausible solutions. That made unions more agreeable to proposals that demonstrated some commitment by the district to addressing the issue of pay, and districts open to other things that they could provide without breaking the budget (like more early release days for professional development).

To be sure, many school administrators could get frustrated with the process of bargaining or having to consult the negotiated agreement when they want to make a change. Some districts would very much like to adopt an extended school day, for example, but they know that they must first consult and negotiate such an idea with the union.

Yet, in districts where school administrators had built a reservoir of goodwill through collective bargaining, disagreement does not come at the cost of operating schools efficiently. Both sides come to recognize that while they inevitably will disagree on some things, they can also seek agreement — and often do on high-stakes matters, like teacher evaluations.

How does this relate to the Supreme Court’s pending decision? Without fees from some teachers, unions may lack the resources to ensure that contract negotiations and enforcement are robust and done well. This could create a vicious cycle: teachers who voluntarily pay fees for bargaining in a post-Janus world, assuming the court rules against the unions, will view such payments as not delivering any return on investment. In turn, they will stop contributing voluntarily, further degrading the quality of the union’s services.

Even more troubling, if fair share fees are prohibited, resentment and internal strife will arise between those who continue to pay the fees and those who refuse. This would undercut a primary benefit of bargaining — labor peace and a sense of shared purpose.

Speaking as a parent, this raises a serious concern: who wants to send their child to a school where there is an undercurrent of bitterness between teachers and administrators that will certainly carry over into the classroom?

It is easy to see the appeal of those opposing agency fees. No one wants to see more money going out of their paycheck. The union-as-bogeyman mentality is pervasive. Moreover, in my experience, some teachers (especially the newer ones) do not recognize the hidden benefits to bargaining contracts.

But, obvious or not, agency fees help promote a stable workplace that allows teachers to concentrate on their primary responsibility: their students. Removing the key ingredient threatens this balance.

Mark Paige is a former school teacher and school law attorney who represented school districts in New England. He is currently an associate professor of public policy at the University of Massachusetts – Dartmouth.

First Person

I’m a Florida teacher in the era of school shootings. This is the terrifying reality of my classroom during a lockdown drill.

Outside of Marjory Stoneman Douglas High School in Parkland, Florida. (Photo by Mark Wilson/Getty Images)

“Remember,” I tell the children, looking them in the eyes in the darkened classroom. “Remember to keep the scissors open. They’ll stab better that way.”

My students, the target demographic for many a Disney Channel sitcom, laugh nervously at me as they try to go back to their conversations. I stare at the talkative tweens huddling in a corner and sigh.

“Seriously, class,” I say in the tone that teachers use to make goosebumps rise. As they turn back to me with nervous laughter, I hold up that much-maligned classroom tool, the metal scissor that’s completely ineffective at cutting paper. “If a gunman breaks in, I’ll be in the opposite corner with the utility knife.” Said tool is in my hand, and more often used to cut cardboard for projects. All the blood it’s hitherto tasted has been accidental. “If I distract him and you can’t get out, we have to rush him.” I don’t mention that my classroom is basically an inescapable choke point. It is the barrel. We are the fish.

They lapse into silence, sitting between the wires under the corner computer tables. I return to my corner, sidestepping a pile of marbles I’ve poured out as a first line of defense, staring at the classroom door. It’s been two hours of this interminable lockdown. This can’t be a drill, but no information will be forthcoming until it’s all over.

I wonder if I really believe these actions would do anything, or am I just perpetrating upon my students and myself the 21st century version of those old “Duck and Cover” posters.

We wait.

The lockdown eventually ends. I file it away in the back of my head like the others. Scissors are handed back with apathy, as if we were just cutting out paper continents for a plate tectonics lab. The tool and marbles go back into the engineering closet. And then, this Wednesday, the unreal urge to arm myself in my classroom comes back. A live feed on the television shows students streaming out of Marjory Stoneman Douglas, a high school just a short drive away. I wonder whether the teachers in its classrooms have passed out scissors.

*

The weapons. It’s not a subject we teachers enjoy bringing up. You’d have an easier time starting a discussion on religion or politics in the teacher’s lounge then asking how we all prepare for the darkness of the lockdown. Do you try to make everyone cower, maybe rely on prayer? Perhaps you always try to convince yourself it’s a drill. Maybe you just assume that, if a gun comes through the door, your ticket is well and truly up. Whatever token preparation you make, if at all, once belonged only to the secret corners of your own soul.

In the aftermath of Parkland, teachers across the nation are starting to speak. The experience of being isolated, uninformed, and responsible for the lives of dozens of children is now universal to our profession, whether because of actual emergencies or planned drills. You don’t usually learn which is which until at least an hour and sometimes not until afterwards. In both cases, the struggle to control the dread and keep wearing the mask of bravery for your students is the same.

And you need a weapon.

I’ve heard of everything from broken chair legs lying around that never seem to be thrown away to metal baseball bats provided by administration. One teacher from another district dealt with it by always keeping a screwdriver on her desk. “For construction projects,” she told students. She taught English.

There’s always talk, half-jokingly (and less than that, lately) from people who want teachers armed. I have a friend in a position that far outranks my own whose resignation letter is ready for the day teachers are allowed to carry guns in the classroom.

I mean, we’ve all known teachers who’ve had their cell phones stolen by students …

*

Years earlier, I am in the same corner. I am more naïve, the most soul-shaking of American massacres still yet to come. The corner is a mess of cardboard boxes gathered for class projects, and one of them is big enough for several students to crawl inside.

One girl is crying, her friend hugging her as she shakes. She’s a sensitive girl; a religious disagreement between her friends having once brought her to tears. “How can they be so cruel to each other?” She asked me after one had said that Catholics didn’t count as Christians.

I frown. It’s really my fault. An offhand comment on how the kids needed to quiet down because I’m not ready to die pushed her too far. Seriously rolling mortality around in her head, she wanted nothing more than to call her family. None of them are allowed to touch their cell phones, however, and the reasoning makes sense to me. The last thing we need is a mob of terrified parents pouring onto campus if someone’s looking to pad their body count.

She has to go to the bathroom, and there are no good options.

I sit with her, trying to comfort her, wondering what the occasion is. Is there a shooter? Maybe a rumor has circulated online. Possibly there’s just a fleeing criminal with a gun at large and headed into our area. Keeping watch with a room full of potential hostages, I wonder if I can risk letting her crawl through the inner building corridors until she reaches a teacher’s bathroom. We wait together.

It seemed different when I was a teen. In those brighter pre-Columbine times, the idea of a school shooting was unreal to me, just the plot of that one Richard Bachman book that never seemed to show up in used book stores. I hadn’t known back then that Bachman (really Stephen King) had it pulled from circulation after it’d been found in a real school shooter’s locker.

Back then my high school had plenty of bomb threats, but they were a joke. We’d all march out around the flagpole, sitting laughably close to the school, and enjoy the break. Inevitably, we’d all learn that the threat had been called in by a student in the grip of “senioritis,” a seemingly incurable disease that removes the victim’s desire to work. We’d sit and chat and smile and never for a second consider that any of us could be in physical danger. The only threat we faced while waiting was boredom.

*

Today, in our new era of mass shootings, the school districts do what they can, trying to plan comprehensively for a situation too insane to grasp. Law enforcement officials lecture the faculty yearly, giving well-rehearsed speeches on procedures while including a litany of horrors meant to teach by example.

At this level, we can only react to the horrors of the world. The power to alter things is given to legislators and representatives who’ve been entrusted with the responsibility to govern wisely while listening to the will of the people. It’s they who can change the facts on the ground, enact new laws, and examine existing regulations. They can work toward a world where a lockdown is no longer needed for a preteen to grapple with gut-churning fear.

We’re still waiting.

K.T. Katzmann is a teacher in Broward County, Florida. This piece first appeared on The Trace, a nonprofit news site focused on gun violence.