Opposition Brief — Marchi v. Board of Cooperative Educational Services of Albany

No. 99-36

IN THE

Supreme Court of the United States

DAN MARCHI,

Petitioner,

Vv.

BOARD OF COOPERATIVE EDUCATIONAL SERVICES

OF ALBANY, SCHOHARIE, SCHENECTADY,

AND SARATOGA COUNTIES,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

LesLiE B. NEUSTADT

Counsel of Record

Bruce A. BELL

MAYNARD, O’ConnorR, SMITH

& CaTALINOTTO, LLP

Attorneys for Respondent

80 State Street

Albany, New York 12207

(518) 465-3553

@ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

154638

a erat aaa om

ee ~ i ne

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

(1) Whether BOCES had constitutional authority to regulate

(2)

(3)

(4)

petitioner’s communications with the parents of his

students regarding the instructional program based upon

a directive which precluded him from making reference

to religion in his instructional program without prior

supervisory authorization, after he repeatedly violated

the Establishment Clause, was formally disciplined for

his insubordination, and continued to violate the

directive.

Whether the courts below properly denied petitioner’s

motion to amend his complaint since BOCES has never

taken or threatened action against petitioner for

activities unrelated to his instructional program.

Where the directive only relates to petitioner’s

instructional program, is reasonably clear, and has never

been applied to interfere with petitioner’s ability to

practice his religion or engage in free speech in non-

instructional contexts, is petitioner’s alleged self-

censorship beyond the confines of his instructional

program, insufficient to comply with Article III standing

requirements. -

Whether the issues petitioner seeks to litigate in his

amended complaint are not sufficiently ripe where they

involve hypothetical. scenarios that have not yet

occurred.

il

TABLE OF CONTENTS

Page

Counterstatement of Questions Presented ........ i

Teble of COMNIINE oc i.cvcnsseudeetnadasnseseen il

Table of AmtnOrTIOS oc cccccnscccscnkvssaeesees Vv

Table of Appendices .....cccccscsccccvcvecess xl

Constitutional Provisions Involved ............. |

Counterstatement of the Case ..............+4+- 2

Petitioner Transforms His Class Into Parochial

Meee ..oc 6cccnctcvseseas setae 2

BOCES Issues Directive .. esc ceseeenteeeses 2

Co-Worker Complains Of Pervasive Teaching Of

Religioh ....ccsvcveccevertectvcesssveesen 3

Social Worker Testifies As To Disruption Of

Educational Program .......cccccccccscscncs 4

Charges Filed Against Petitioner ............. 4

“Petitioner Found Guilty Of Insubordination .... 5

Petitioner Seeks To Continue To Pray And

Counsel Students With Reference To God ..... 5

BOCES Declines To Alter Directive .......... 6

iti

Contents

Page

Petitioner Warned That Parental Communications

Are Subject To Directive ................... 7

Petitioner Admits Violating Directive After

te te eek sy, 7

Petitioner Initiates 42 U.S.C. § 1983 Action ... 7

Petitioner Seeks To Amend Complaint Based On

Hypothetical Questions ...............0000; 8

Lower Courts Rule In BOCES’s Favor ........ 10

Reasons for Denying the Writ ................. 11

I. This Case Does Not Involve An Unresolved

Tension Between The Establishment Clause

And The Free Speech And Free Exercise

Clauses Of The First Amendment. Even If

This Court Seeks To Construct A Framework

To Resolve These Tensions, This Case Is Not

The Right Vehicle To Do So. ............ 11

A. Public School Teachers Are Subject To

Greater Regulation ...............; 12

B. BOCES Has A Compelling Interest

In Avoiding Establishment Clause

DSS che cdudiebs seees 40 oases 13

iv

Contents

Page

C. Parents May Understand Teacher

Expression Has State’s Imprimatur ... 16

D. Disruptive Workplace Doctrine Is

Applicable Here .........cccccseces 17

Il. There Is No Conflict Between The Second

Circuit’s Decision Regarding The

Appropriate Standard To Assess Whether

There Is Sufficient Chilling Of Constitutional

Rights To Establish Standing And Other

Circuit Court Decisions Or Decisions

GOT CO, . vc cccccccncccuseceueeecs 18

A. Petitioner Failed To Establish A

Credible Threat of Enforcement ...... 19

B. The Amended Complaint is Not Ripe . 23

III. It Would Be Inappropriate For This Court To

Construct Constitutional Guidelines To

Govern Teacher Communications With

Students During Non-Instructional Time In

Response To The Hypothetical Situations

Petitioner Has Posited In His Amended

Complaint. .......... Lieclesekeeuuvs ss 26

See, oc Lie edubese av dRweruteerinns 28

TABLE OF AUTHORITIES

Page

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136, 87

S. Ct. 1507, 18 L. Ed. 2d 681 (1967) ......... 23

ACLU vy. Florida Bar, 999 F.2d 1486 (11th Cir.

DUET seadakuareecebes poet! care 21

Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997,

ESO Ly. BG. 26 BDi CAGST) . wc cccccccccccces 12

Altman v. Bedford Central Sch. Dist., 45 F. Supp.

We SP Es WUD oc dain odo do cebcccude: 15

Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289, 99 S. Ct. 2301, 60 L. Ed. 2d 895

GPU Whe waded ddvccelveubeeweenuseee le: 20, 21

Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12

Fe fg) PR anes aaa 22

Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991) .17, 21

Board of Educ. of Westside Comm. Sch. v. Mergens,

496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191

GHP bedvelNdectwiedaberseneielsee ie 26, 27

Boring v. Buncombe County Bd. of Ed., 98 F.3d 1474

(4th Cir. 1996) vacated by grant of reh’g en banc,

1996 U.S. App. LEXIS 31165 (4th Cir. 1996),

different results reached on rehearing, 136 F.3d

364 (4th Cir.), cert. denied, _ U.S. __» 119 S.

Ct. 47, 142 L. Ed. 2d 36 (1998) .............. 12, 16

Neen

vi

Cited Authorities

Page

Capital Square Review Bad. v. Pinette, 515 U.S. 753,

115 S. Ct. 2440, 132 L. Ed. 2d 650 (1995)

beceeeues¢040«0sssesin tee 27

Chandler v. James, _ F.3d _, 1999 U.S. App.

LEXIS 15608 (11th Cir. 1999) ........-.4045- 15

City Council of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed.

26 TTS CAGES) nc ccccccvcvcetecevseservesess 25

Doe v. Duncanville Ind. Sch. Dist., 994 F.2d 160

(5th Cir. 1993); subsequent appeal, 70 F.3d 402

(Siig Cle. 1998) .ccccccccccccececesevsscvces 15

Edwards v. Aguillard, 482 U.S. 578, 1078. Ct. 2573,

06 L. BE. 24 SIO CIGST) ccccccccvcvccvcesses 14, 26

Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L.

A, 26 GO CIDER) occ cvcccccoccuseveveceens 14

Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266,

21 L. BG. 26 228 (ISGE) on ccccccvcccsccvcess 14, 24

Gardner v. Toilet Goods Assoc., 387 U.S. 167, 87

S. Ct. 1526, 18 L. Ed. 2d 704 (1967).......... 23

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,

108 S. Ct. 562, 98 L. Ed. 2d 592 (1988) ....... 16, 17

Vii

Cited Authorities

Helland v. South Bend Comm. Sch. Corp., 93 F.3d

327 (7th Cir. 1996), cert. denied, 519 U.S. 1092,

117 S. Ct. 769, 136 L. Ed. 2d 715 (1997) ...... 15

Jager v. Douglas County Sch. Dist, 862 F.2d 824

(11th Cir. 1989), cert. denied, 490 U.S. 1090, 109

S. Ct. 2431, 104 L. Ed. 2d 988 (1989) ........ 15

Keyishian v. Board of Regents, 385 U.S. 589, 87 S.

Ct. 675, 17 L. Ed. 2d 629 (1967) ............. 22

Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L.

Ed. 2d 154 (1972), reh'g denied by, 479 U.S. 911,

107 S. Ct. 309, 93 L. Ed. 2d 284 (1986) ....... 19, 20

Lamb's Chapel v. Center Moriches Union Free Sch.

Dist., 508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed.

ee EE 0 csuceuenstscduaclveeboes 12, 14, 27

Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120

iy Sb ae a OE Swéecsedecuueseseuraeds 13, 26

Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105,

a Oe We a PUTED wc ccuévectencncdacter 12

Maryland Casualty Co. v. Pacific Coal & Oil Co.,

312 U.S. 270, 61 S. Ct. 510, 85 L. Ed. 2d 826

GED 0005s b6bcb os cdabscenctcauneudeunews 19

McCollum v. Bd. of Ed, 333 U.S. 203, 68 S. Ct. 461,

Fee Bee Bs GOED vv oc ccecceuscucevecees 14

vill

Cited Authorities

Page

New Hampshire Right to Life Political Action Comm.

- v. Gardner, 99 F.3d 8 (1st Cir. 1996) ......... 21

New York State Club Ass'n v. City of New York, 487

U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988)

Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517

(9th Cir. 1993), cert. denied, 515 U.S. 1173, 115

S. Ct. 2640, 132 L. Ed. 2d 878 (1995) ........ 14, 15

Pickering Bd. of Ed., 391 U.S. 563, 88 S. Ct. 1731,

BO Lo. BG. BE SEE CISER) co cccccccccscessesess 18

Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L.

Ed. 2d 989 (1961), reh’g denied by, 368 U.S.

869, 82 S. Ct. 21, 7 L. Ed. 2d 69 (1961) ....... 19

Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990),

cert denied, 505 U.S. 1218, 112 S. Ct. 3025, 120

mF of Peer er re rT Te 15

Rosenberger v. Rector and Visitors of the Univ. of

Virginia, 515 U.S. 819, 115 S. Ct. 2510, 132 L.

© by Ji. | PPP TTTTTTPTTTr reer Te 26, 27

School Dist. of Abington v. Schempp, 374 U.S. 203,

83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) ....... 14

Silano v. Sag Harbor Union Sch. Dist., 42 F.3d 719

(2d Cir. 1994), cert. denied, 515 U.S. 1160, 115

S .Ct. 2612, 132 L. Ed. 2d 856 (1995) ........ 17

| —

Cited Authorities

Page

Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66 L.

WM WEED 6.5.0 ci-cnecaecnos decd... 14

Tinker v. Des Moines Indep. Comm. Sch. Dist., 393

U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969)

C449.040 5 005 00H W004 6655 0000 bbb bene be cess 12

Tucker v. State of California Department of

Education, 97 F.3d 1204 (9th Cir. 1996) ...... 12, 16

Valley Forge Christian Coll. v. Americans United

for Separation of Church and State, 454 U.S. 464,

102 S. Ct. 752, 70 L. Ed. 2d 700 ae 21

Virginia v. American Booksellers Ass n, 484 US.

383, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988)

PORVESTAFORUD ERS CHENG WOO dibs doe Siece els 22

Virginia v. American Booksellers Ass n., 488 U.S.

905, 109 S. Ct. 254, 102 L. Ed. 2d 243 (1988)

CTREVECEESEOGS OG DO LG E05 00040046 0%4 can <o 23

Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86

A. Ed. 24 29 (198S) 0... cece cece ccneccs... 14

Ward v. Hickey, 996 F.2d 448 (Ist Cir. 1993) .... 17, 25

Waters v. Churchill, 511 U.S. 661, 114S. Ct. 1878,

128 L. Ed. 2d 686 (1994) ................... 13, 18

Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269,

70 L. Ed. 2d 440 a Soo pee 12, 14

Cited Authorities

Page

Statutes:

ee es ee Pe OPO, | oo cna oceecsencenesean 16

Be ean BUTTE os cecetssoeessdedsesveases 27

Te ERs OE coach akeceewecanss Coeueeaees 7

United States Constitution:

First Amendment ..... 1, 7, 11, 12, 14, 15, 18, 19, 20, 22

Chae Gs FE TE Ge web ncucecuweseews i, 1, 19, 20

Other Authorities:

ee SE PEROT x whencececabiesssevees 21

N.Y. Education Law § 3020-a (McKinney’s 1995)

xi

TABLE OF APPENDICES

Page

Appendix — Excerpts From BOCES’s Brief To The

Second Circuit ....................... rrere la

|

Respondent respectfully requests this Court to deny the

petition for a writ of certiorari seeking review of the opinion

of the United States Court of Appeals for the Second Circuit.

Petitioner clearly violated the Establishment Clause, and the

Board of Cooperative Educational Services for Albany,

Schoharie, Schenectady, and Saratoga Counties (“BOCES”)

acted consistently with well established case law in

restricting petitioner’s religious proselytization of his

students as well as regulating his communications with their

parents about instructional matters. This case is not the ri ght

vehicle to announce a new framework to address the tensions

between the Establishment Clause and the Free Exercise and

Free Speech Clauses of the First Amendment. Nor is there

any conflict between the Second Circuit’s decision and

settled case law on Article III Standing and the alleged

chilling of constitutional rights. Petitioner’s amended

complaint is not ripe for constitutional adjudication.

CONSTITUTIONAL PROVISIONS INVOLVED

Article III, cl. 2 of the United States Constitution

provides in pertinent part: “The judicial Power shall extend

to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States ... to

Controversies” (U.S. Const., Art. III, cl. 2).

The First Amendment to the United States Constitution

provides in pertinent part, that “Congress shall make no law

respecting an establishment of religion, or prohibit the free

exercise thereof; or abridging the freedom of speech... .”

(U.S. Const., amend. I).

2

COUNTERSTATEMENT OF THE CASE

Petitioner Transforms His Class Into Parochial

Education

Petitioner, a certified special education teacher of

socially and emotionally disturbed high school students,

transformed his classroom into parochial education, basing

his teaching methods on his own dramatic religious

conversion to Christianity (Pet. App. 3, App. 10, 241).' He

modified his instructional topics to include forgiveness,

reconciliation, and God (Pet. App. 3, App. 10). The mandated

English curriculum was replaced with the Book of Psalms

and King David’s life which were taught in a religious

manner (App 10, 242, 246). Petitioner began to pray with

the students individually before, during, and after class (App.

10, 242, 243). He ignored his supervisor’s informal entreaties

to stop teaching religion (App. 148, 182).

BOCES Issues Directive

Accordingly, on September 14, 1995, John Daly, the

Director of Special Education, issued a letter directive which

provided:

During our meeting last week, we discussed your

frequent references to religion while dealing with

students. As you know, public schools are

prohibited from offering instruction in support

of religious beliefs and practices. Your personal

beliefs about the role of religion in society and

its value to families and their children cannot be

a part of the instruction given to your students.

1. References to “ Pet. App.” are to the Appendix to the Petition

which includes the decisions below. References to-“App.” are to

the Joint Appendix filed in the Second Circuit.

3

Consequently, you are to cease and desist from

using any references to religion in the delivery of

your instructional program unless it is a required

element of a course of instruction for your

Students and has Prior approval by your

supervisor, Dr. DiPierro. I am sure that you realize

the seriousness of this matter and will comply with

this direction.

Best wishes for a good year at Mohonasen. If you

have any questions or concerns, please let me

know.

(Pet. App. 3-4).

Thus, contrary to petitioner’s allegations (Pet. 3), he did

not have explicit permission to teach religion prior to the

directive. Moreover, even after the directive was issued, and

he knew that it was prohibited, petitioner refused to comply

because it “would be detrimental to his students and would

violate his conscience before God” (Pet. App. 4, App. 11,

124-125, 247-248).

Co-Worker Complains Of Pervasive Teaching Of

Religion

On February 10, 1995, a letter complaint was submitted

to Dr. DiPierro by a teaching assistant in plaintiff’ s classroom

(Pet. App. 4, App. 125). She indicated that petitioner used

the Bible and God as the main subjects in his classroom

(App. 409, 410, 553, 554). His techniques were similar to

brainwashing techniques of a cult and he discussed Satanism,

the devil, and students’ Possession by evil spirits (App. 553).

She overheard petitioner tell his students that he was willing

to lose his job over religious issues (App. 554).

4

Social Worker Testifies As To Disruption Of Educational

Program

Charles Rhynhart, a social worker on petitioner’s team,

testified that all the posters in petitioner’s classroom had

religious themes (App. 381). Petitioner’s conversations with

students and co-workers routinely ended with “Praise God”, or

“lll pray for you” (App. 381). Petitioner utilized religion,

instead of the behavior modification approach followed by the

school to address unacceptable behavior (App. 383-384). As a

result of petitioner’s proselytizing, some of petitioner’s students

told Mr. Rhynhart that he could not be their counselor unless

he accepted God and Jesus as his savior (App. 385).

Charges Filed Against Petitioner

Following an investigation, BOCES initiated charges

against petitioner on March 20, 1995, which included the

following:

(1) Conduct unbecoming a teacher in that the

teacher expresses his personal views on religion

to his students during class, incorporates his

religious views into the discussion of academic

subjects and distributed religious materials to

students for instructional materials.

(2) Insubordination in that the teacher has failed

to comply with a written direction given him

to cease and desist from using any references

to religion in the delivery of his instructional

program unless it is a required element of a

course of instruction for his students and had

been given prior approval from his supervisor.

(App. 57-58, 124, 551).

5

Petitioner Found Guilty Of Insubordination

A hearing was held before a Hearing Officer pursuant to

N.Y. Education Law § 3020-a (McKinney’s 1995). Petitioner

(Pet. 4) implies that the Hearing Officer recognized the

beneficial nature of his religious advocacy, and it was only the

School Board that determined to suspend him and require him

to comply with the directive as a condition to his returning to

work. Petitioner’s suspension and the requirement that he

comply with the directive were based upon the Hearing Officer’s

official recommendations (Pet. App. 4, App. 66-67).

The Hearing Officer found that the directive was “clear

and unequivocal” and that the import of the memo was

unmistakable (App. 63). He further found that petitioner

knowingly defied the directive in the face of unequivocal notice,

constituting insubordination (App. 62-64). The Hearing Officer

observed that petitioner was free to practice his religion and

live his faith as he wished, and could refer to religion in the

context of the regular curriculum (App. 64-66, 126).

Petitioner Seeks To Continue To Pray And Counsel

Students With Reference To God

At the end of the sixth month suspension, Mr. Daly sent

petitioner a letter Stating that unless petitioner affirmed in writing

that he would refrain from using any references to religion in

the delivery of his instructional program without prior approval

of his supervisor, he would not be allowed to return (App. 12,

69). Upon advice of counsel, petitioner affirmed in writing

that he would adhere to the directive (Pet. 4, App. 70).

Simultaneously, he sent a letter to Mr. Daly asking: (1) whether

he could pray with a student if the student approached him and

asked him to pray in private; and (2) whether and how he could

answer a student’s questions concerning religion and morality

(App. 71).

6

BOCES Declines To Alter Directive

Mr. Daly responded as follows:

As a condition of returning to work, you signed

an affirmation committing yourself not to use any

references to religion in the delivery of your

instructional program unless it is a required

element of an approved course of instruction and

you obtain the prior approval of your supervisor.

Based upon the fact that the disciplinary action

against you resulted from your defiance of an

identical directive rather than a misunderstanding,

together with the fact that you had the opportunity

to consult with counsel before you signed the

affirmation, I must assume that you fully

understood the terms of your affirmation, and that

you will abide by them.

(Pet. App. 4-5, App. 72).

Shortly after his return, a teacher’s aide saw a letter in

petitioner’s classroom addressed to a parent of a student

which provided:

Ryan had a good day today. I thank you and the

LORD for the tape it brings the Spirit of Peace to

the classroom. Tomorrow is the teacher’s

conference and dismissal is at 11:30. May God

Bless you all richly!

(Pet. App. 5, App. 73).

7

Petitioner Warned That Parental Communications

Are Subject To Directive

When Dr. DiPierro advised petitioner that DiPierro had

been informed that petitioner had similar communications

with other parents, petitioner explained that he did not

interpret the directive to apply to any of his communications

with parents (Pet. App. 5, App. 74). Dr. DiPierro warned

petitioner by letter that “since you communicated these

messages in your capacity as a BOCES teacher, and in as

much as parents are part of the instructional process, my

interpretation of the agreement you signed. . . precludes you

from communicating in this manner” (Pet. App. 5-6).

However, no action was taken against petitioner in

connection with this incident (Pet. App. 6).

Petitioner Admits Violating Directive After

Suspension

Petitioner has admitted that he continued to violate the

directive in 1997 by making references to God during class

and counseling students with reference to God (App. 247-

248). He persisted in recommending that if students accepted

Jesus Christ, they were more likely to overcome substance

abuse problems (App. 248). Petitioner took the position that

prayer was not a religious ritual, and that he prayed and

counseled students as a friend, and not as a teacher, making

the directive inapplicable (App. 219).

Petitioner Initiates 42 U.S.C. § 1983 Action

Petitioner subsequently initiated a 42 U.S.C. § 1983

action containing six causes of action, alleging violations of

his First Amendment right to the free exercise of religion,

free speech, academic freedom, and the Religious Freedom

Restoration Act (App. 9-14). He challenged his transfer to

the CDS class, alleging that he had been retaliated against

8

for exercising his constitutional rights (App. 13-14). He

sought to void the directive, as well as the disciplinary action,

obtain lost wages and benefits due to the suspension, and

obtain an order enjoining BOCES from interfering with his

constitutional rights, as well as attorneys’ fees (App. 14).

BOCES answered, denied the complaint, and moved for

summary judgment (App. 100-102, 127-128).?

Petitioner Seeks To Amend Complaint Based On

Hypothetical Questions

After discovery was completed, petitioner cross-moved

for summary judgment, and sought leave to amend his

complaint in order to expand his allegations relating to the

directive’s purported overbreadth and chilling of protected

speech (Pet. App. 6). BOCES opposed the cross motion for

summary judgment and for leave to amend the compaint.

(App. 294-297, 309-316).

Petitioner’s amended complaint included allegations that

BOCES violated his First Amendment rights by interpreting

the directive to constrain petitioner from communicating with

students on matters unrelated to school curriculum both on

school and off school grounds during non-class times

(Pet. App. 6). Petitioner alleged that he had never received

any guidance about the directive, and that his request for

objective criteria had been summarily denied (App. 109).

He further alleged that the lack of guidance prevented him

from praying with students and co-workers, and answering

students’ questions with reference to God (App. 109). In his

amended complaint, petitioner relied upon the deposition

2. Petitioner moved for a preliminary injunction to enjoin

enforcement of the directive (App. 113-118). The District Court for

the Northern District of New York (Scullin, J.) denied the motion,

concluding that the meaning and scope of the directive were clear

to a person of ordinary intelligence and that the directive was not

vague or overbroad (App. 127-128).

OOOO

9

testimony of Mr. Daly, who authored the directive, and Dr.

Pierro, his immediate supervisor, to demonstrate that BOCES

intended to apply the directive to curtail protected speech

(Pet. App. 6, 63-66).

At his deposition, Mr. Daly testified that the directive

was necessary in light of petitioner’s repeated and pervasive

use of religion in his instructional program, and his refusal

to comply with repeated entreaties to comply with the

school’s constitutional mandate (App. 148). Daly defined

the term instructional program to include “the actual teaching

of content with the expressed intent of sharing curriculum

content [and] context with students” (App. 160). He stated

that the instructional program Can occur outside the

Classroom, giving homework assignments as an example

(App. 160). In his view, conversations between petitioner

and his students which occurred on school grounds during

or after school hours could constitute part of the instructional

program even if the subject matter was not part of the

mandated curriculum, depending on the circumstances

(App. 161-163). When asked whether a conversation between

petitioner and students about issues not directly related to

the mandated curriculum could be part of the delivery of his

instructional program, Mr. Daly was careful to couch his

answer that “in his personal opinion, he believed that a

teacher’s influence is extended often beyond the parameters

of the school day” (App. 163). Mr. Daly did not give any

indication that he would take any action against petitioner

for out-of-school interactions unrelated to the instructional

program (App. 163). Mr. Daly was not asked about particular

factual scenarios during the deposition.

Dr. DiPierro, petitioner’ s supervisor for eleven years,

was also deposed. He worked closely with petitioner, both

before and after his suspension, to delineate the parameters

of the directive and afford petitioner guidance as to how

petitioner could achieve values clarification in a secular

10

context (App. 182-184, 202-204, 216). Dr. DiPierro noted

that the instructional program can occur off school grounds

such as when students take a field trip or a teacher invites

students over his or her house (Pet. App. 64-65). He testified

that the instructional program includes more than the

lesson plans based on mandated curriculum, and that

communications to parents are fairly contained in the

definition of instructional program (Pet. App. 65, App. 182-

183).

Lower Courts Rule In BOCES’s Favor

The District Court granted BOCES’s motion for

summary judgment and denied petitioner’s motion for leave

to amend his complaint, which was affirmed by the Second

Circuit.

11

REASONS FOR DENYING THE WRIT

I.

THIS CASE DOES NOT INVOLVE AN UNRESOLVED

TENSION BETWEEN THE ESTABLISHMENT

CLAUSE AND THE FREE SPEECH AND FREE

EXERCISE CLAUSES OF THE FIRST AMENDMENT.

EVEN IF THIS COURT SEEKS TO CONSTRUCT A

FRAMEWORK TO RESOLVE THESE TENSIONS,

THIS CASE IS NOT THE RIGHT

VEHICLE TO DO SO.

The petition does not warrant review by this Court. The

Second Circuit applied settled law in holding that BOCES

did not infringe petitioner’s free exercise rights in restricting

his religious expression to avoid Establishment Clause

violations, finding that the challenged directive was neither

vague nor overbroad. Significantly, petitioner has abandoned

his claim that BOCES violated his constitutional rights when

it disciplined him, in effect conceding that his conduct

violated the directive, and could be restricted without

implicating his constitutional rights.

Petitioner’s application is predicated upon the erroneous

premise that this case is an appropriate vehicle for this Court

to develop a new framework for resolving a teacher’s free

exercise claims within the public school context. The

directive only relates to petitioner’s instructional program,

and was properly upheld since public school officials have

the authority to prevent teachers from giving students and

parents the impression that the school prefers a particular

religion or religion in general. The public forum analysis

used to resolve free speech claims regarding private religious

expression has no bearing here.

12

The petition is replete with factual omissions, improper

references to case law that does not stand for what petitioner

represents it to be (see, e.g., Tucker v. State of California

Department of Education, 97 F.3d 1204 (9th Cir. 1996);

(Pet. 13)), reliance upon legal analysis taken out of context,

as well as citation to case law that has been vacated

(see, e.g., Boring v. Buncombe County Bd. of Educ., 98 F.3d

1474 (4th Cir. 1996); (Pet. 13), vacated by grant of reh’g en

banc, 1996 U.S. App. LEXIS 31165 (4th Cir. 1996), different

results reached on reh’g, 136 F.3d 364 (4th Cir.), cert. denied,

__U.S.__, 119 S. Ct. 47, 142 L. Ed. 2d 36 (1998)). This is a

sufficient basis to deny the petition.

A. Public School Teachers Are Subject To Greater

Regulation

While the Second Circuit acknowledged that the

directive unquestionably restrains petitioner’s First

Amendment rights, the Court recognized that the special

nature of public educational institutions affords school

officials comprehensive authority to prescribe and control

conduct, and as well as providing them with a compelling

interest in justifying the abridgement of free speech otherwise

protected by the First Amendment (Tinker v. Des Moines

Indep. Comm. Sch. Dist., 393 U.S. 503, 507, 89 S. Ct. 733,

21 L. Ed. 2d 731 (1969); Lamb’s Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384, 394, 113 S. Ct. 2141,

124 L. Ed. 2d 352 (1993); citing Widmar v. Vincent, 454

U.S. 263, 271, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981)).

The Court began with the principles regarding the

establishment-of-religion set forth in Lemon v. Kurtzman,

403 U.S. 602, 612-613, 91 S. Ct. 2105, 29 L. Ed. 2d 745

(1971) and Agostini v. Felton, 521 U.S. 203, 234, 117 S. Ct.

1997, 138 L. Ed. 2d 391 (1997). The Second Circuit was

careful not to invalidate activity that has a primary secular

purpose and only incidental religious significance. However,

13

it recognized that when government endeavors to police itself

and its employees to avoid transgressing the Establishment

Clause, it must be given some leeway, even if the activity is

ultimately determined not to violate the Establishment

Clause, and the actions would otherwise be protected if the

individual involved were not a public employee (cf., Waters

v. Churchill, 511 U.S. 661, 671, 114 S. Ct. 1878, 128 L. Ed.

2d 686 (1994) (plurality opinion)).

The Second Circuit concluded that since petittoner’s

letter addressed a matter directly related to his professional

duties as a CDS teacher, it was within the directive’s scope

regarding the “delivery of [petitioner’s] instructional

program”. The Court reasoned that while the letter was slight

in its religious references, it sufficiently intruded religious

content into a curricular matter, such that BOCES could

reasonably be concerned that communications of this sort

would expose it to non-frivolous Establishment Clause

challenges. Accordingly, the application of the directive to

parental communications about the instructional program did

not impermissibly infringe petitioner’s free exercise rights.

The Court also rejected petitioner’s claim that he was not on

notice that such conduct violated the directive, since no

action was taken, and he was merely warned that his

communications with parents about instructional matters

would be considered to be part of his instructional program.

B. BOCES Has A Compelling Interest In Avoiding

Establishment Clause Violations

This Court has consistently struck down organized

religious activities or school endorsement of religion

(see, e.g., Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649,

120 L. Ed. 2d 467 (1992) (schools prohibited from

sponsoring invocations and benedictions at graduation where

ceremony conducted by the school, it occupies an important

place and school controls the program since even subtle or

14

indirect coercion of impressionable students may violate the

Establishment Clause); Edwards v. Aguillard, 482 U.S. 578,

107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987) (state statute

mandating teaching of creation science held unconstitutional

advancement of religious doctrine in violation of the

Establishment Clause); Wallace v. Jaffree, 472 U.S. 38, 105

S. Ct. 2479, 86 L. Ed. 2d 29 (1985) (state statute authorizing

one minute period of silence to encourage prayer in public

schools invalidated); Stone v. Graham, 449 U.S. 39, 101

S. Ct. 192, 66 L. Ed. 2d 199 (1980) (posting of Ten

Commandments on public school wall violated the

Establishment Clause); Epperson v. Arkansas, 393 U.S. 97,

89 S. Ct. 266, 21 L. Ed. 2d 228 (1968) (statute prohibiting

teaching of evolution invalidated as violative of the

Establishment Clause); School Dist. of Abington v. Schempp,

374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) (statute

mandating daily reading of Bible and recitation of Lord’s

Prayer held unconstitutional); Engel v. Vitale, 370 U.S. 421,

82S. Ct. 1261, 8 L. Ed. 2d 601 (1962) (non-denominational

prayer recited in the classroom held unconstitutional);

McCollum v. Bd. of Ed, 333 U.S. 203, 68 S. Ct. 461, 92

L. Ed. 649 (1948) (religious instruction which had been

carried out for a certain period each week invalidated)).

Thus, BOCES has a compelling interest in avoiding

Establishment Clause violations which justifies the

abridgement of plaintiff’s free exercise, freedom of

association, and free speech claims otherwise protected by

the First Amendment (see, Lamb’s Chapel v. Center Moriches

Union Free School District, supra, at 394, quoting, Widmar

v. Vincent, supra, at 271).

Students should not be given the impression that the

school officially sanctions or prefers religion generally, or a

specific religion in particular (see, Peloza v. Capistrano

Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1993), cert. denied,

515 U.S. 1173, 115 S. Ct. 2640, 132 L. Ed. 2d 878 (1995)).

15

Accordingly, school officials have the authority to prevent

public school teachers from expressing their religious

viewpoints, or praying with or in the presence of students

both in the classroom and in comparable settings (Helland

v. South Bend Comm. Sch, Corp., 93 F.3d 327 (7th Cir. 1996),

cert. denied, 519 U.S. 1092, 117S. Ct. 769, 136 L. Ed. 2d

715 (1997); see also, Chandler v. James, __ F.3d __, 1999

U.S. App. LEXIS 15608 (11th Cir. 1999) (teacher

Participation in student-initiated prayer improperly entangles

the State in religion and Signals an unconstitutional

endorsement of religion); Peloza y. Capistrano Unified Sch.

Dist., supra, (court sustained directive which precluded

teacher from discussing his religious beliefs during

instructional time whether inside or Outside of the

Classroom); Roberts y. Madigan, 921 F.2d 1047 (10th Cir.

1990), cert denied, 505 U.S. 1218, 112 S. Ct. 3025, 120

L. Ed. 2d 896 (1992) (court upheld restriction of teacher’s

reading Bible to himself in front of Class, as well as use of

poster which requested readers to open their eyes to see the

hand of God); Doe y. Duncanville Ind. Sch. Dist., 994 F.2d

160 (Sth Cir. 1993); subsequent appeal, 70 F.3d 402

(Sth Cir. 1995) (unconstitutional for coach or other school

Official to initiate, lead or participate with a team in prayer,

or to ask a team member to do so before, during or after a

public or school sponsored athletic activity or event); Jager

v. Douglas County Sch. Dist, 862 F.2d 824 (11th Cir. 1989),

cert. denied, 490 U.S. 1090, 109 S. Ct. 2431, 104 L. Ed. 2d

988 (1989) (invocations by clergy at public officials’ request

prior to public school football game held unconstitutional):

Altman v. Bedford Central Sch. Dist., 45 F. Supp. 2d 368

(S.D.N.Y. 1999) (court enjoined various teaching activities,

as well as the sale of worry dolls in the school store, which

were found to violate the First Amendment rights of students

since teachers and speakers sponsored by the school must

remain neutral towards all religions, neither sponsoring nor

disparaging any religious beliefs)).

16

Tucker v. California, supra, upon which petitioner relies,

is not to the contrary. In Tucker, the Ninth Circuit held that

the public employer had failed to justify a broad order

applicable to all employees which prohibited them from

displaying any religious materials in any part of the

workplace other than their closed offices or defined cubicles,

and engaging in any religious advocacy during work hours

in the workplace. Since the government failed to establish

that its interests justified the breadth of the ban, it was

invalidated. However, the Court expressly distinguished the

facts from a situation involving public school teachers

(97 F.3d at 1212-1213).’

C. Parents May Understand Teacher Expression Has

State’s Imprimatur

The Second Circuit noted that this Court has recognized

that parents may understand that certain expression by a

teacher bears the imprimatur of the State (see, Hazelwood

School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98

L. Ed. 2d 592 (1988) (school district may regulate

“expressive activities that students, parents or members of

the public might reasonably perceive to bear the imprimatur

of the school”)). Petitioner’s attempt to distinguish

Hazelwood (Pet. 14-15) is predicated upon a simplistic, and

unduly constrained concept of the instructional program

involved in public education, and in particular, with special

education provided pursuant to the Individuals with

Disabilities Education Act, 20 U.S.C. §§ 1400, et seq.

3. As noted, since the decision in Boring v. Buncombe County

Bd. of Ed., 98 F.3d 1474 (4th Cir. 1996) was vacated, and different

results were reached after the rehearing en banc (see, 136 F.3d 364

(4th Cir.), cert. denied, __ U.S. __, 119 S. Ct. 47, 142 L. Ed. 2d 36

(1998), the Boring decision cited by petitioner is no longer good

law. -

17

Moreover, courts have applied Hazelwood to teachers’

conduct as well as students’ conduct since pedagogical

interests are equally applicable to both (see, e.g., Silano v.

Sag Harbor Union Sch. Dist., 42 F.3d 719 (2d Cir. 1994),

cert. denied, 515 U.S. 1160, 115 S .Ct. 2612, 132 L. Ed. 24

856 (1995); Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993);

Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991)).

In any event, petitioner's attempt to dismiss the letter as

private correspondence between two friends distorts the facts

beyond recognition. No one rifled in his personal

correspondence, and one does not usually advise friends in

private correspondence that there is early dismissal from

school or comment on a student’s behavior in school. In

addition, there was evidence that petitioner had similar

communications with other parents, and viewed everyone

as a friend when he was expressing his religious views

(App. 219).

Thus, contrary to petitioner’s contention (Pet. 12), this

case does not involve a novel issue which affects the rights

of hundreds of thousands of public employees. The letter

did not simply involve the kind of adult to adult

communication that occurs regularly in every public

employment context.

D. Disruptive Workplace Doctrine Is Applicable Here

Petitioner also asserts that the disruptive workplace

doctrine has no application to the case at bar, and that BOCES

never even claimed that his conduct was disruptive (Pet. 13).

This is simply untrue. BOCES previously argued that

petitioner had undermined the behavior modification

approach adopted by the team, and had either alienated or

supplanted other professionals on the team raising serious

problems for BOCES, in addition to raising legitimate

18

Establishment Clause concerns (BOCES’s Brief to the

Second Circuit, pp. 37-38 which can be found in the

Appendix to Respondent’s Brief in Opposition, App. 1a).

Petitioner’s § 3020-a hearing was also replete with testimony

that demonstrated that petitioner’s conduct had been

disruptive (App. 125, 553, 554, 383-385). Under the Waters

v. Churchill standard, courts examine whether the conduct

impairs discrpline, co-worker relations, impedes the

performance of the employees’ duties, or the operation of

the enterprise (see also, Pickering v. Bd. of Ed., 391 U.S.

563, 569-70, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)). The

letter, which was only one aspect of the continuing problems

caused by petitioner’s conduct, cannot be viewed in isolation.

The Second Circuit’s appreciation of the dilemmas

facing public schools when teachers violate the

Establishment Clause, and the difficulty of ascertaining the

precise boundaries of the First Amendment rights of their

employees, does not establish a precedent which will be

cavalierly used to violate the constitutional rights of teachers

or other public employees. It is only by divorcing the decision

from its factual underpinnings, that petitioner can attempt

to transform a reasonable decision which is consistent with

precedent into a so-called vehicle of religious oppression.

Il.

THERE IS NO CONFLICT BETWEEN THE SECOND

CIRCUIT’S DECISION REGARDING THE APPROPRIATE

STANDARD TO ASSESS WHETHER THERE IS

SUFFICIENT CHILLING OF CONSTITUTIONAL RIGHTS

TO ESTABLISH STANDING AND OTHER CIRCUIT

COURT DECISIONS OR DECISIONS OF THIS COURT.

Petitioner has also failed to establish that the Second Circuit

decision is squarely inconsistent with other Circuit Court

19

decisions or the decisions of this Court regarding the standards

for establishing Article III standing in cases implicating First

Amendment concerns. Petitioner has manufactured the conflict

in order to meet the criteria for Supreme Court review. The

Second Circuit properly concluded that petitioner failed to

present evidence that his constitutional rights were reasonably

chilled or that the case presented a ripe controversy regarding

the hypothetical claims in his amended complaint.

A. Petitioner Failed To Establish A Credible Threat of

Enforcement

The Court denied petitioner’s request for leave to amend

his complaint since Article III of the United States Constitution

limits the jurisdiction of the federal courts to cases or

controversies, citing Maryland Casualty Co. v. Pacific Coal &

Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 2d 826

(1941)) for the proposition that

[t]he question in each case is whether the facts

alleged, under all the circumstances, show that there

is a substantial controversy, between parties having

adverse legal interests, or sufficient immediacy and

reality to justify judicial resolution.

The District Court refused to grant petitioner’s motion

to amend the complaint, concluding that petitioner’s refusal

to give a common sense meaning to the directive did not

transform the directive into an unconstitutional infringement

of his constitutional rights, or raise his allegations of chilling

to constitutional proportions. Relying upon Poe v. Ullman,

(367 U.S. 497, 503-508, 81 S. Ct. 1752, 6 L. Ed. 2d 989

(1961), reh’g denied by, 368 U.S. 869, 82

S. Ct. 21, 7 L. Ed. 2d 69 (1961)) and Laird v. Tatum, (408

U.S. 1, 12-13, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972), reh’g

denied by, 479 U.S. 911, 107 S. Ct. 309, 93 L. Ed. 2d 284

20

(1986)), the Second Circuit affirmed, finding that petitioner

had failed to demonstrate a credible fear of enforcement even

under the relaxed standards applicable to First Amendment

litigation.

The determination of the Second Circuit that petitioner

did not face a credible threat of enforcement for off campus

activities is a factual determination which does not merit

Supreme Court review. The Court found Mr. Daly’s testimony

to be ambiguous and qualified as his “personal opinion”. It

also relied upon the fact that BOCES never indicated that it

intended to apply the directive to petitioner’s off-campus

expressive activities on matters unrelated to his instructional

program. The Second Circuit noted that petitioner had not

even alleged that BOCES had attempted to regulate his

communications on matters unrelated to school even though

he sought to challenge the regulation in this regard.

Accordingly, petitioner’s self-created censorship was not

sufficient to create Article III standing, or sufficient chilling

in the circumstances.

The Court’s determination is not in conflict with

established case law. Contrary to petitioner’s contention (Pet.

17, 21), the Second Circuit did not graft a third requirement

of the two part test of Laird v. Tatum (supra) by holding that

a plaintiff must demonstrate that there has been actual

enforcement of a directive to satisfy the Article III standing

requirement. Rather, the Court determined that there was no

credible threat of enforcement and no evidence that BOCES

was going to enforce the valid directive in an unconstitutional

manner. Speculative fears of prosecution are insufficient to

establish standing (Babbitt v. United Farm Workers Nat'l

Union, 442 U.S. 289, 99 S. Ct. 2301, 60 L. Ed. 2d 895

(1979)).

Petitioner concedes that in order to clear Article III

standing, he must show that: (1) he has personally suffered

21

some actual or threatened injury as a result of the challenged

conduct; (2) the injury can fairly be traced to the threatened

conduct; and (3) the injury likely will be redresssed by a

favorable decision from the court (see, e.g., Valley Forge

Christian Coll. v. Americans United for Separation of Church

and State, 454 U.S. 464, 472, 102 S. Ct. 752, 70 L. Ed. 2d

700 (1982); New Hampshire Right to Life Political Action

Comm. v. Gardner, 99 F.3d 8, 12 (Ist Cir. 1996)). Petitioner

failed to establish that he suffered any concrete injury that is

objectively traceable to any action of BOCES regarding new

allegations in the amended complaint.

The cases upon which petitioner relies recognize that

the difference between an abstract question and a “case and

controversy” is one of degree which is not discernable by

any precise test (see, e.g., Babbitt v. United Farm Workers

Nat'l Union, supra). Each First Amendment Case must be

decided on its own merits (Bishop v. Arnov, supra at 1070),

and none of the cases upon which petitioner relies (Pet. 19-

22) are factually analogous.

For example, in ACLU v. Florida Bar, (999 F.2d 1486

(11th Cir. 1993)), the Court held that a candidate for judicial

office had raised a serious likelihood of disciplinary action

for violating an ethical canon where the state’s Ethics Committee

had issued an advisory opinion that plaintiff’s proposed speech

criticizing his opponent would violate Ethical Canon 7(b)(1)(a).

Since the dispute involved a particular speech, the Court found

that the plaintiff’s self-censorship was sufficient to establish

standing since there was a credible threat of enforcement. The

issues were not hypothetical but were clearly defined. Here,

the very opposite is true, which is a lynchpin of the Second

Circuit’s decision.

So too, New Hampshire Right to Life Political Action

Comm. v. Gardner (supra) (Pet. 20), only addressed whether

the plaintiff had personally suffered some actual or threatened

22

injury. There was a State statute which restricted election

contributions to $1,000. The First Circuit applied well

established case law to conclude that the plaintiffs did not have

to wait until the statute was enforced against them to test its

constitutionality since there was a credible threat of enforcement

if they violated the ceiling on expenditures. Self-censorship was

sufficient since plaintiff had been advised that the state would

enforce the statute, and the statute suppressed a core activity

protected by the First Amendment.

The loyalty oath cases upon which petitioner relies are also

distinguishable (see, Keyishian v. Board of Regents, 385 U.S.

589, 604, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Baggett v.

Bullitt, 377 U.S. 360, 372, 84S. Ct. 1316, 12 L. Ed. 2d 377

(1964)). Both cases involved statutes which applied to all

teachers, and required compliance or loss of employment. In

addition, the Court in Baggett held that the oath was vague,

making it more likely that the plaintiff would be more likely to

restrict his speech rather than risk loss of employment. The

Hearing Officer, the District Court, and the Second Circuit all

found that the directive at issue is not vague, and that petitioner

was provided with extensive guidance as to its proper

parameters, undermining petitioner’s chilling argument.

Nor is the decision below inconsistent with Virginia v.

American Booksellers Ass'n, 484 U.S. 383, 108 S. Ct. 636,

98 L. Ed. 2d 782 (1988) (Pet. 21-22). Virginia involved a

pre-enforcement facial challenge to a criminal statute, and

plaintiffs might have had to take significant and costly

compliance measures under the statute or risk criminal

prosecution, suffering harm based upon their actual and well-

founded fears. Since there was a question as to the proper

interpretation of the statute which might affect the outcome

of the litigation, the Supreme Court certified the question to

the Virginia Supreme Court for an interpretation of the statute

since the Court did not want to address a constitutional issue

without a definitive interpretation of the statute. Ultimately,

23

the case was vacated and remanded in light of the Virginia

Supreme Court’s interpretation of the statute (Virginia v.

American Booksellers Ass’n., 488 U.S. 905, 109 S. Ct. 254,

102 L. Ed. 2d 243 (1988)). _

In striking contrast, the Second Circuit found that

petitioner did not have well founded fears that were sufficient

to meet the chilling requirements. Moreover, petitioner

sought to litigate a broad range of hypothetical situations

which had not been delineated. In addition, the Court rejected

his facial challenge to the directive.

Contrary to his contention (Pet. 22), petitioner has not

been placed on the horns of a grave dilemma without redress.

Rather, petitioner has refused to distinguish between the

“chilling” of his conduct which is clearly proscribed by the

directive, and situations which he unreasonably asserts are

covered by the directive, as to which no action has been taken

or is reasonably threatened.

B. The Amended Complaint is Not Ripe

The Second Circuit also properly concluded that

petitioner failed to present a ripe controversy with respect to

the application of the directive to his off-campus

communications with students on matters unrelated to the

school curriculum. In so doing, the Court examined both the

fitness of the issues for judicial decision and the hardship

that would result if judicial consideration was withheld

(Abbott Laboratories y. Gardner, 387 U.S. 136, 148-49, 87

S. Ct. 1507, 18 L. Ed. 2d 68] (1967)). Pre-enforcement

challenges must grow out of real substantial controversies

between the parties which are defined and concrete

(see generally Gardner v. Toilet Goods Assoc., 387 U.S. 167,

87 S. Ct. 1526, 18 L. Ed. 2d 704 (1967) (courts must

determine whether the resolution of the underlying legal

issues would be facilitated if raised in the context of a specific

24

attempt to enforce the challenged provision)). Courts have

been reluctant to intervene in conflicts which arise in the

daily operation of public schools, and only do so for actual

conflicts which “directly and sharply implicate constitutional

values” (Epperson v. Arkansas, supra at 104).

Given the unique nature of student-teacher relationships,

the Second Circuit noted that it was easy to imagine a variety

of circumstances that might fall within the challenged

hypothetical application of the directive, some of which may

be regulated constitutionally, and some of which may not.

Since BOCES had not threatened to apply the directive to

any of petitioner's off-campus activities, the Second Circuit

would have been forced to guess how BOCES might apply

the directive and pronounce the validity of numerous possible

applications of the directive, which were as of yet

hypothetical. The litany of questions contained in the petition

(Pet. 24) confirms the hypothetical nature of his amended

complaint, and the wisdom of the Second Circuit’s

declination to answer his hypothetical questions.

The Court reached a similar conclusion with respect to

petitioner’s request to test the application of the directive to

on-campus, after-class conversations with students on

matters not related to the curriculum and his responses to

student’s requests for prayer. We do not dispute that BOCES

has taken the position that petitioner should not pray with

students and counsel them with respect to God and his

personal religious beliefs at school. During oral argument,

the Second Circuit explored various hypotheticals that might

occur with respect to prayer and counseling on school

grounds. It was clear during oral argument that the Second

Circuit felt that even in this area, the issue should not be

litigated in the abstract. It was influenced by the fact that

there was no evidence that BOCES had or intended to enforce

the directive in an illegal manner. There is no reason to

disturb that judgment.

25

The Second Circuit’s determination to affirm the denial

of petitioner’s application to amend his complaint must been

viewed in the context of its rejection of petitioner’s facial

challenge to the directive on the ground that it was

unconstitutionally vague and overbroad. Petitioner has

abandoned his overbreadth argument (Pet. 21). His vagueness

argument is also without merit, since the basic meaning of

the directive is as clear as the context permits, and gives

petitioner fair notice of what conduct is proscribed (see, New

York State Club Ass'n v. City of New York, 487 U.S. ay Bs

108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.

Ct. 2118, 80 L. Ed. 2d 772 (1984)). The Second Circuit

properly held that BOCES was not obligated to articulate

every imaginable situation that might fall within the

directive’s purview (see, e.g, Ward v. Hickey, supra).

The Second Circuit rejected petitioner’s contention that

BOCES had refused to provide any explanation of the term

“instructional program”, finding that it was not unreasonable

for BOCES to view his initial request for clarification as

insincere when received simultaneously with his Signed

affirmation that he would comply with the directive. The

Court also relied upon the documented evidence that

petitioner had been provided with extensive guidance

regarding the ambit of the directive after returning to teaching

from his suspension (Pet. App. 20-21). This effectively

undermines petitioner’s request for Supreme Court review

of the Second Circuit’s determination on chilling.

A barren record is not the appropriate case to address

these issues. The Second Circuit’s insistence on factual

boundaries within which to adjudicate constitutional issues

is predicated on sound jurisprudential principles.

26

Il.

IT WOULD BE INAPPROPRIATE FOR THIS COURT

TO CONSTRUCT CONSTITUTIONAL GUIDELINES -

TO GOVERN TEACHER COMMUNICATIONS WITH

STUDENTS DURING NON-INSTRUCTIONAL TIME

IN RESPONSE TO THE HYPOTHETICAL

SITUATIONS PETITIONER HAS POSITED

IN HIS AMENDED COMPLAINT.

Thus, this Court should reject petitioner’s invitation to

construct general guidelines for assessing the constitutional

boundaries of teacher communications with students during

non-instructional time. The Second Circuit properly declined

petitioner’s invitation.

Petitioner asks this Court to resolve the point at which a

teacher sheds the imprimatur of the state when speaking to

students (Pet. 23). While petitioner concedes that when a

teacher speaks on matters concerning the curriculum, his

speech is indelibly stamped with the state’s imprimatur, and

is subject to regulation (Edwards v. Aguillard, supra), he

asserts that this Court has never suggested that the imposition

of the state’s imprimatur on a governmental employee is

independent of the nature of the conversation and the nature

of the relationship between the speaker and the listener

(citing, Lee v. Weisman, supra; Board of Educ. of Westside

Comm. Sch. v. Mergens, 496 U.S. 226, 248-53, 110 S. Ct.

2356, 110 L. Ed. 2d 191 (1990); Rosenberger v. Rector and

Visitors of the Univ. of Virginia, 515 U.S. 819, 115 S. Ct.

2510, 132 L. Ed. 2d 700 (1995)). Even if that were true, it is

irrelevant to this case.

BOCES only regulated petitioner’s speech insofar as it

affected his instructional program, which clearly goes beyond

the “curriculum” as petitioner has narrowly defined it

(Pet. 23). BOCES has not intruded upon private relationships

27

which do not involve petitioner’s instructional program.

Petitioner’s attempt to limit his public role to the mandated

curriculum is contrary to well-settled Establishment Clause

jurisprudence (see, infra, pp. 13-16), as well as Congress’

recognition that a teacher’s public role transcends the

boundaries of classroom instruction (see, Equal Access Act,

20 U.S.C. § 4071 [a]; Board of Educ. of Westside Comm. Sch.

v. Mergens, supra). Since petitioner is not merely a private

party in a public forum, neither Capital Square Review Bd.

v. Pinette, (515 U.S. 753, 770, 115 S. Ct. 2440, 132 L. Ed.

2d 650 (1995)) or Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist., (supra) afford him protection to advocate

his religious views even in response to student initiated

requests. Nor does Rosenberger v. Rector and Visitors of the

University of Virginia, (supra) preclude BOCES’s actions.

BOCES did not engage in unconstitutional viewpoint

discrimination since petitioner’s speech was not private, and

BOCES had legitimate Establishment Clause concerns.

Petitioner asks this Court to speak on matters that need

no clarification for the boundaries of the proper role of public

school teachers with respect to the instructional program and

school activities are not amorphous. To the extent that open

questions may exist about teachers’ conduct outside of

instructional matters and school activities, he seeks guidance

well beyond this Court’s jurisprudential limits. Accordingly,

the petition should be denied.

28

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

LESLIE B. NEUSTADT

Counsel of Record

Bruce A. BELL*

MAYNARD, O’ CONNOR, SMITH

& CATALINOTTO, LLP

Attorneys for Respondent

80 State Street

Albany, New York 12207

(518) 465-3553

4. Counsel would like to acknowledge the invaluable assistance

of Jennifer A. DeWolf, a third year law student at Albany Law

School, in the preparation of this Brief.

—— = —_ =.

APPENDIX

DL ara ae

.

ue

&

P .

-

. _~

‘

.

wal

.

~ .

‘

.

f ,

* »

’ 4 :

‘ ‘

la

APPENDIX — EXCERPTS FROM BOCES’S

BRIEF TO THE SECOND CIRCUIT

* * *

In addition, plaintiff undermined the behavior

modification approach adopted by the team, and has either

alienated or supplanted other professional members of the

team raising serious concerns on the part of BOCES. There

is no question that BOCES has an interest as an employer in

regulating the expressive activity of its employees that differs

significantly from those government possesses in regulating

the expressive activities of its citizenry (Waters v. Churchill,

511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 [1994]

[plurality opinion]; Pickering v. Board of Educ., 391 U.S.

563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 [1968}). In

determining whether the employer’s interest in effective

functioning is disrupted, courts examine whether the conduct

impairs discipline, co-worker relations, or impedes the

performance of the actor’s duties, or the operation of the

enterprise, among other factors (Pickering v. Board of Educ.,

supra, 391 U.S. at 569-70). We submit that plaintiff's

admitted defiance of the directive clearly undermined

BOCES’ educational objectives, impaired discipline, and

undermined relations between co-workers.

* * * *