September 14, 2009
Earlier this month, U.S. District Court Judge Sidney H. Stein issued a decision in Almontaser v. New York City Board of Education, 07 Civ. 10444, finding that a principal fired for statements leading to a misleading press report was not protected under the First Amendment.
The decision and the actions it protects are problematic on grounds of law and policy. First is the misapplication of precedent by the District Court, carried over from an earlier opinion and repeated by a Circuit Court ruling in the same case. Second, and perhaps more seriously, is the extent to which the Bloomberg administration continues to push a policy agenda squelching free expression.
On August 5, 2007, New York Post reporter Chuck Bennett interviewed Debbie Almontaser, the interim acting principal of the Kahlil Gibran International Academy, a New York City public school which was due to open the following September. KGIA was the focus of intense public scrutiny for its emphasis on Arab language and culture. Also at issue was an allegation that Almontaser had ties to Arab Women Active in the Arts and Media which had created t-shirts stating “Intifada NYC.”
Asked about her affiliation with AWAAM and the t-shirts during the interview, which was organized and monitored by the New York City Department of Education’s press office, Almontaser denied any connection with the organization and explained she would never affiliate herself with an organization condoning violence. Further, she explained that the root of the word means “shaking off.”
The next day, the Post published Bennett’s story under the headline “City Principal is ‘Revolting.” with a picture of Almontaser captioned, “Furor: The Pro-violence shirt is being defended by Principal Debbie Almontaser.” The story also incorrectly added the phrase “and shaking off oppression” to Almontaser’s statement.
As a result of the ensuing controversy over Almontaser’s misattributed remarks and the paper’s incendiary language, the DOE forced her to resign the interim principal post and, when the permanent position of principal was advertised, quickly passed over her application. Almontaser then sued the DOE (technically, the New York City Board of Education) for retaliatory firing in violation of her First Amendment right to free speech.
The courts found that Almontaser lacked First Amendment protection because her remarks took place in the context of her public employment. While the facts above, as described by the District Court, clearly point to the interview as an official duty under the supervision of the DOE, Almontaser claimed that her misreported “intifada” remarks were disconnected from her statements about KGIA and her employment there.
Educators’ political statements on matters of general public interest have long been protected under the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education. But the District and Circuit courts relied on a more recent case, Garcetti v. Ceballos, which held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties.
However, the Almontaser courts failed to acknowledge Garcetti’s explicit exemption for statements related to academic matters. The majority stated, “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” at p. 13. That determination – clearly at issue but ignored in Almontaser — was reached by the Court because of Justice Souter’s clear statement in dissent:
“As for the importance of such speech to the individual, it stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools? . . . Indeed, the very idea of categorically separating the citizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s “object … to unite [m]y avocation and my vocation;” these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract. There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.” at 5, footnotes omitted.
Thus, a strong argument can be made that, despite the context of an official interview like that in Garcetti, Almontaser met that case’s exception by commenting as an educator on a matter of general public interest related to the academic focus of her school. Such a result is consistent with Garcetti and the high value the Constitution places on public discourse in a free society.
Even accepting the courts’ mistaken analysis, the firing of a principal for a controversial remark – and here, a remark she did not even make! – is dangerous public policy. By firing Almontaser, the Chancellor (and by extension, the Mayor he works for), has impoverished robust public debate, a core value of a free society.
This is nothing new. The Mayor has shown hostility to unruly voices before. His preventive detention of protestors at the Republican National Convention in 2004 was subsequently met by wholesale dismissal of police charges. He banned the wearing of campaign buttons by teachers, an action upheld in court.
But just because the Mayor can suppress speech, doesn’t mean he must suppress speech. The First Amendment exists to promote a marketplace of ideas and we are the losers when government limits access to unpopular thought.
In the Almontaser case, the Mayor’s famous espousal of principal autonomy is once again exposed as an empty promise that “You can do as you like as long as I like what you do.” Such a philosophy may lead to smooth operational control but the public sector and schools, especially, are the worse for it. Public institutions are fundamentally strengthened by American values of active civic discourse. The courts should pay heed the next time the city puts free expression to the test.