# Santer v. Board of Education

> New York Court of Appeals · May 6, 2014 · 23 N.Y.3d 251

URL: https://www.frixlaw.com/law-library/cases/5489088

## Case

- **Full name:** In the Matter of Richard Santer v. Board of Education of East Meadow Union Free School District, Appellant In the Matter of Barbara Lucia v. Board of Education of East Meadow Union Free School District
- **Court:** New York Court of Appeals
- **Decided:** May 6, 2014
- **Citations:** 23 N.Y.3d 251; 13 N.E.3d 1028
- **Precedential status:** Published
- **Opinion:** Dissent by Rivera
- **Judges:** Abdus, Abdussalaam, Graffeo, Lippman, Pigott, Read, Rivera, Salaam, Smith
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5489088

## Opinion text

Rivera, J.
(dissenting). I dissent from the majority’s decision because I can find no legal or factual error in the Appellate Division’s application of the Pickering balancing test to the facts of these cases. I would affirm the Appellate Division’s orders and its conclusion that the District violated the teachers’ free speech rights.
“[S]peech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection” (Connick v Myers, 461 US 138, 145 [1983], citing NAACP v Claiborne Hardware Co., 458 US 886, 913 [1982]; Carey v Brown, 447 US 455, 467 [1980]). Accordingly, a public employer’s authority to regulate a public employee’s speech on matters of public interest is subject to constitutional limits (see Connick, 461 US at 147 ). In determining whether a public employer may lawfully act against a public employee based on *272 the employee’s speech, courts must balance the rights of the employee against those of the employer “in promoting the efficiency of the public services it performs through its employees” (Pickering v Board of Ed. of Township High School Dist. 205, Will Cty., 391 US 563, 568 [1968]).
The “state’s burden in justifying a particular [action] varies depending upon the nature of the employee’s expression” (Con nick, 461 US at 150 ). Thus, the U.S. Supreme Court has “caution[ed] that a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern” (id. at 152). In other words, the greater the free speech interest, the stronger the showing necessary to carry the State’s burden (id. at 150-152). This, of course, is logical where matters of public concern are involved. Otherwise, a bare claim of mere inconvenience would be sufficient to overcome the interest in speech on a matter of the utmost public importance.
In the cases on appeal, the teachers’ speech involved matters of public concern, the type of speech that enjoys the greatest First Amendment protection because of its importance to our democratic society (see Pickering, 391 US at 573 ; San Diego v Roe, 543 US 77, 82 [2004]). As the U.S. Supreme Court has recognized, discussion about the operation of public schools “is vital to informed decision-making by the electorate” (Pickering, 391 US at 571-572 ). Moreover, “[t]eachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of [retaliation]” (id. at 572). Thus, these cases involve speech in an area of the utmost public importance uttered by the very people in the best position to inform public debate.
A finding that the teachers’ speech was disruptive of the school district’s public responsibility, justifying discipline in these cases, requires the school district to carry a heavy burden (United States v Treasury Employees, 513 US 454, 466 [1995]; Rankin v McPherson, 483 US 378, 388 [1987]; Connick, 461 US at 150 ). The only issue before us is whether the Appellate Division properly applied the law to the facts in these cases in reaching its conclusion that the school district failed to meet its burden. 1
*273 The Appellate Division found that “evidence that children were dropped off in the middle of the street due to the arrangement of the [teachers’] cars provided a rational basis” for the arbitrators’ decisions and that the awards were not arbitrary and capricious (Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 101 AD3d 1026 , 1027 [2d Dept 2012]). The majority concludes that the “potential risk to student safety” was enough to end the inquiry and satisfy the school district’s burden (majority op at 267). However, the Appellate Division went further and considered whether the evidence showed that the teachers’ actions disrupted the school’s operations enough to outweigh the teachers’ First Amendment rights. This is the inquiry required under the Pickering balancing test (see Pickering, 391 US at 568 [the State must “arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”]).
Faced with the teachers’ First Amendment challenge, the Appellate Division was within its authority to consider all of the evidence in the record to determine whether, as a whole, the record could support the school district’s claims of disruption (see e.g. Bose Corp. v Consumers Union of United States, Inc., 466 US 485 [1984]; New York Times Co. v Sullivan, 376 US 254, 284-285 [1964]; Brasslett v Cota, 761 F2d 827 [1st Cir 1985]).
Based on its analysis of the facts as found by the arbitrators, the Appellate Division concluded that the public employees in these cases had exercised their First Amendment rights to speak about matters of public concern, specifically the collective bargaining agreement dispute (Santer, 101 AD3d at 1028; see *274 Clue v Johnson, 179 F3d 57 , 61 [2d Cir 1999]). The Appellate Division further concluded that the school district failed to satisfy its burden of establishing that the petitioners’ exercise of their First Amendment rights so threatened the school’s effective operation to justify the imposition of discipline against them.
The Appellate Division’s conclusions that the school failed to act to stop the demonstration or to otherwise clear the way for the students are wholly supported by the record. The record shows that petitioners and the other teachers’ cars were legally parked; any member of the public could lawfully park on Wen-wood Drive during the same time and in the same spots where petitioners were parked. The curb cuts were open and clear for pedestrian crossing. As a matter of course, student drop-off occurs on both sides of Wenwood Drive, requiring students dropped off across the street from the school to negotiate traffic in crossing the street. The school administrators did not intervene to help students or request that the teachers move their cars at any time during the morning demonstration. Only several minutes after traffic congestion formed did the administrators call the police and then in order to assist with the traffic jam. Even after calling the police, administrators did not take action to reduce any obstruction to the students’ drop-off. Nonetheless, no students were injured the morning of the demonstration. The teachers cleared their cars from the road at 7:50 a.m., before the parking prohibition came into effect at 8:00 a.m. Santer and Lucia both arrived at work on time.
The majority ignores the Appellate Division’s conclusions, and instead makes its own findings regarding the petitioners’ actions, concluding that the evidence “demonstrated a potential risk to student safety that outweighed the First Amendment value of petitioners’ speech about collective bargaining” (majority op at 267). The majority reaches this conclusion because the parked cars caused traffic congestion requiring the students to exit in the middle of the street in the rain. That determination, however, is based on the majority’s rejection of the Appellate Division’s application of law to the facts and the majority’s reliance on the arbitrators’ finding of a risk to the children, without regard to facts showing the risk not to be substantial.
The majority’s factual findings fail to address the constitutional question; whether the speech so affected the school as to disrupt its “effective and efficient fulfillment of its responsibilities to the public” (Connick, 461 US at 150 ). The arbitrator *275 failed to consider whether the risk was of the type to affect the school in a constitutional sense, and the Appellate Division was well within its authority to consider the teachers’ claims and apply the Pickering balancing test to the facts in the record. While dropping a student in the middle of the road may well be a risk and one worth avoiding, the question is whether that risk on the day in question was substantial enough to disrupt the workings of the school. To make that determination, the Appellate Division properly considered the morning’s events in full, including the school administration’s lack of urgent response to the situation. I can find no error of law in this analysis. While others may reach a different conclusion on the facts — as the majority apparently does (majority op at 266-268) — it cannot be error as a matter of law to find on these facts that the school district failed to carry its heavy burden.
To the extent the Appellate Division found persuasive those facts related to the school administrators’ actions in concluding that the speech did not substantially disrupt the school’s operations, we are bound by that fact-finding, supported by the record evidence as it is. Alternatively, if the facts could support either conclusion equally, that is they support a finding of school disruption as well as a finding of insufficient disruption to the school’s workings, then the findings are in equipoise, and the school district has failed to carry its heavy burden. Unlike the majority I would not tip the balance in favor of the District where it has failed to meet its evidentiary burden.
In addition to the “potential risk to student safety,” the majority also bases its decision on what it calls “evidence of ‘actual disruption’ to the school’s effective operation” (majority op at 267). According to the majority, 16 teachers arrived late due to “traffic caused by the parking demonstration” (id.). However, there is scant record evidence that the parking demonstration caused teachers to arrive late, and the majority is the first fact-finder to reach this conclusion. The Appellate Division discusses only the risk to children created by the parking activity, perhaps because that was the only basis given by the arbitrators for their arbitration award. 2
*276 The majority’s decision is flawed not only because the majority has dubious authority to make findings of fact, but also because it misconstrues the Pickering balancing test and its application to the facts in the record. According to the majority, the public employer need only “make a substantial showing that the speech is . . . likely to be disruptive” (majority op at 266, citing Waters v Churchill, 511 US 661, 674 [1994 plurality]). The majority relies on the plurality opinion in Waters in support of this legal standard. It is true that the plurality in Waters concluded that courts should give deference to a public employer’s reasonable predictions of disruption (Waters, 511 US at 673 ). However, Waters concerned the procedures a court should use when evaluating a government restriction on employee speech. Here, the issue is whether, given the absence of any indication of disruption beyond school administrators’ self-serving testimony, those administrators had reason to discipline the teachers. In any event, this case does not involve the administrators’ prediction of disruption, but rather whether a disruption actually took place. The teachers were disciplined after the fact, not as a preventive measure to avoid possible disruption.
The Appellate Division did not abuse its discretion by concluding that the school district failed to satisfy its burden because the danger created by the petitioners’ parked cars was not substantial. Therefore, I would affirm the orders of the Appellate Division.
Judges Graffeo, Read and Pigott concur with Judge AbdusSalaam; Judge Smith concurs in result in an opinion; Judge Rivera dissents in an opinion in which Chief Judge Lippman concurs.
In each case: Order reversed, with costs, petition denied, and arbitration award confirmed.
. The majority asserts that we may ignore the Appellate Division’s application of the Pickering test to the facts of this case because the balancing of competing interests is a question of law (majority op at 267 n 9). To the extent the majority asserts the obvious, namely that we must ensure the proper legal *273 analytical framework is applied to the case at hand, I agree. However, that is not what the majority has done in this case. The majority has supplanted the Appellate Division’s analysis outright, even though that court applied the proper legal standard, and no abuse of discretion is discernable from the opinion’s consideration of the record before it. This is not an appropriate exercise of our power of review, for as I have stated in my dissent, our task in this case is to ensure that the facts support the conclusion, not, as the majority would have it, to recast the facts to support the majority’s view of what it considers to be the consequences flowing from the events.
Even were I to adopt the majority’s approach to our review of the Appellate Division’s decisions in these cases, I would still dissent from the majority’s conclusion that the District satisfied its burden because the facts failed to establish disruption to the school, or, at most, the evidence of disruption is no greater than the evidence that no disruption occurred.
. The majority’s reliance on evidence that 16 teachers signed in late on the day of the demonstration is misplaced because there was no finding by the arbitrators that this evidence established disruption to the school, and therefore, testimony that teachers arrived late does not constitute, as the majority would have it, “record evidence of actual disruption” (majority op at *276 268 n 10). Of course, if it did, we would expect that the arbitrators would have found as much.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5489088. Public record. Not legal advice.