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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 869

## Text

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

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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.

* * * *

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0521%3A2. Public record. Not legal advice.