336 F.3d 185 (2nd Cir. 2003), 02-7338, Melzer v. Board of Education of City School Dist. of City of New York

Docket Nº:02-7338
Citation:336 F.3d 185
Party Name:Melzer v. Board of Education of City School Dist. of City of New York
Case Date:July 16, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 185

336 F.3d 185 (2nd Cir. 2003)

Peter MELZER, Plaintiff-Appellant,


BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Carol A. Gresser, Irene Impellizzeri, Victor Gotbaum, Michael J. Petrides, Luis O. Reyes, Ninfa Segarra, Dennis M. Walcott, individually and in their official capacities as members of the Board of Education of the City School District of the City of New York, Ramon Cortines, individually and as Chancellor of the City School District of the City of New York, Joseph Dejesus, individually and as Superintendent of the Bronx High Schools, Hollis Needleman, individually and as Assistant Superintendent of the Bronx High Schools, Edward Stancik, individually and as Special Commissioner of Investigation for the New York City School District and the City of New York, Defendants-Appellees.

No. 02-7338.

United States Court of Appeals, Second Circuit

July 16, 2003

Argued Dec. 3, 2002.

Page 186

[Copyrighted Material Omitted]

Page 187

[Copyrighted Material Omitted]

Page 188

Eugene B. Nathanson, New York, New York, for Plaintiff-Appellant.

Ronald E. Sternberg, New York, New York (Michael A. Cardozo, Corporation Counsel of the City of New York, Leonard Koerner, Jonathan Pines, New York, New York, of counsel), for Defendants-Appellees.


CARDAMONE, Circuit Judge.

Among the liberties an American citizen enjoys is the right to associate with whomever he or she chooses for whatever purpose. That right, Alexis de Tocqueville observed in discussing it 168 years ago in his classic book is "almost as inalienable in its nature as [the right of] individual freedom." Alexis de Tocqueville, Democracy in America 184 (Harvey C. Mansfield & Delba Winthrop eds. & trans., U. Chi. Press 2000) (1835).

Peter Melzer (plaintiff or appellant), a New York City school teacher at Bronx High School of Science (Bronx Science or

Page 189

school) asserts that his constitutional rights to freedom of association and speech were violated when the defendant Board of Education of the City School District of the City of New York (defendant or Board) terminated his teaching position. He alleges that action was taken in retaliation for his membership in the North American Man/Boy Love Association (NAMBLA or Association).

This appeal is from a judgment entered February 27, 2002 in the United States District Court for the Eastern District of New York (Block, J.), dismissing plaintiff's 42 U.S.C. § 1983 civil rights suit.


A. Facts Regarding Plaintiff

1. Teaching Record

Plaintiff was a school teacher and an employee of the defendant Board, having taught high school science for over 30 years from 1962 until his suspension in 1993, and his ultimate termination in 2000. He obtained tenure in 1968 as a physics teacher at Bronx Science, one of three highly selective science-oriented high schools in New York City. The school actively vies with New York's other two prestigious science high schools for the City's top students.

During his years at Bronx Science Melzer taught grades nine through 12. He participated in a number of school-related activities, including a volunteer program to teach physics to area junior high school students. He also served as an advisor to the Bronx Science Physical Science Journal and its Bicycle Club, and organized the Regional Science Olympiad. For his school activities and teaching he received several commendations.

2. Membership in NAMBLA

Melzer is a self described pedophile and admits to being sexually attracted to young males up to the age of 16. Despite this proclivity, the record before us reveals no evidence that plaintiff engaged in any illegal or inappropriate conduct at Bronx Science. Plaintiff's outlet as a pedophile is his participation in NAMBLA, which he joined in 1979 or 1980 to discuss with others his long-standing attraction to young boys.

NAMBLA's stated primary goal is to bring about a change in the attitudes and laws governing sexual activity between men and boys. It advocates the abolition of laws governing the age of consent for such activity and the abolition of laws that limit freedom of expression, including child pornography laws. It seeks to build a support network for men and boys, while educating the public on what it sees as the benevolent nature of its activities, and cooperating with the lesbian, gay, and other movements for sexual liberation.

Melzer became very active from early in his membership in NAMBLA and served it in a number of capacities. For over ten years he served intermittently as a member of NAMBLA's Steering Committee, a group that sets the Association's policy. He also served as the organization's treasurer and coordinated its fund-raising drives. Melzer's deep interest in the organization is further reflected in his attendance as one of three NAMBLA representatives at the 6th Annual International Pedophile and Youth Emancipation Conference in Amsterdam, the Netherlands, a meeting devoted to sharing information about the youth pedophile movement worldwide. Melzer co-founded NAMBLA's publication, the Bulletin, and at various times contributed articles and served as editor.

Page 190

3. NAMBLA's Bulletin

The NAMBLA Bulletin is published ten times a year and features articles on topics of interest to members. The Bulletin is the self-described voice of NAMBLA. It is distributed by direct mail and sold to the public at select magazine and book stores.

Articles appearing in the Bulletin offer insight into the organization's beliefs and purpose, as well as the extent of Melzer's involvement. Issues of the Bulletin where Melzer is listed on the masthead as editor included articles like "Staying Safe and Happy as a Man/Boy Lover," which appeared in October 1993. The article proffered advice developed by NAMBLA activists on how to deal with police, how to store contraband erotica to escape discovery, and how to keep the specifics of a relationship with an underage boy secret from authorities. That advice included: never answer police questions, avoid keeping photos of underage boys where police may find them, never discuss the specifics of an illegal relationship with therapists or social workers, and secure legal representation before you need it. Another article appearing in the January-February 1993 Bulletin gave advice on how to identify susceptible children and lure them into sexual acts. Melzer stated later that although he did not agree with the article, he did not believe most people would take the advice.

A published letter to the editors of the Bulletin, entitled "Good Touches" appeared in the December 1992 issue. The letter graphically instructed readers on ways to touch specific body parts. In his capacity as editor, Melzer sanctioned such pieces in the "Letters" section of the Bulletin because he thought they had value.

Plaintiff himself wrote several articles. One entitled "Police Infiltrator," appearing in December 1986, recounted the activities of a detective from the Manhattan South Public Morals Division, who posed as a NAMBLA ally and arrested at least one NAMBLA member. In a follow-up article Melzer complained that the officer coerced vulnerable NAMBLA members into mailing copies of Melzer's Bulletin articles to his employer, the defendant Board. In 1987 the Bulletin also reprinted a letter to the editor of Newsday Melzer had written explaining that NAMBLA believes the ability and the right to experience sexual pleasure is a gift enjoyable by everyone regardless of age or sex. The letter further stated that erotic acts involving young people are not automatically abusive or exploitative.

B. Investigation of Plaintiff

1. Membership in NAMBLA Becomes Public

Melzer's membership in NAMBLA first came to the Board's attention in 1984-1985 via an anonymous letter received by the school's then principal. The Board's Office of the Inspector General conducted an interview with plaintiff on March 29, 1985, during which Melzer declined to confirm or deny whether he was a member of NAMBLA. No administrative action was taken at that time. The investigation was reopened in May 1992 by the newly created Office of the Special Commissioner of Investigation for the New York City School District (Commissioner of Investigation), an investigative body created to succeed the Office of the Inspector General.

During the course of the reopened investigation in March 1993, a local television station aired a three-part news story on public school teachers who were members of NAMBLA. The story was broadcast on WNBC-TV Channel 4 in New York on March 2, 3, and 5, 1993. It featured a secretly recorded video of a NAMBLA meeting at which Melzer could be seen

Page 191

advising a non-tenured employee of the Board to keep his Association membership secret until he acquired tenure. The story also featured interviews with students, as well as an attempted interview with Melzer himself. Other news media soon picked up the story and further disseminated the fact that Melzer, a teacher at Bronx Science, was a NAMBLA member.

2. Response by Bronx Science High School Community

In the wake of this media attention, Melzer became the center of heated discussion in the Bronx Science community. School principal Vincent Galasso attempted to prevent the airing of the first segment of the Channel 4 series, but was told by an NBC reporter, "not on your [expletive deleted] life." Galasso thereupon convened a number of school officials to discuss his concerns about Melzer and the attendant publicity. Since plaintiff was on sabbatical for the 1992-93 school year, the discussion focused on whether he should be allowed to return the following year. Galasso spoke to nearly 100 teachers and school officials, many of whom shared his concerns about whether Melzer should be teaching children and the effect the news story would have on student...

To continue reading