Marchi v. Board of Cooperative Educational Services of Albany

• Decision Date: 21 October 1998
• Docket Number: No. 98-7213,98-7213
• Citation: 173 F.3d 469
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 1305, 75 Empl. Prac. Dec. P 45,831, 134 Ed. Law Rep. 92 Dan MARCHI, Plaintiff-Appellant, v. BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF ALBANY, Schoharie, Schenectady, and Saratoga Counties, Defendant-Appellee. . Heard
• Court: U.S. Court of Appeals — Second Circuit

Page 469

173 F.3d 469

79 Fair Empl.Prac.Cas. (BNA) 1305,

75 Empl. Prac. Dec. P 45,831, 134 Ed. Law Rep. 92

Dan MARCHI, Plaintiff-Appellant, v. BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF ALBANY,

Schoharie, Schenectady, and Saratoga Counties,

Defendant-Appellee.

No. 98-7213.

United States Court of Appeals, Second Circuit.

Heard Oct. 21, 1998.

Decided April 2, 1999.

Thomas Marcelle, Slingerland, N.Y., for plaintiff-appellant.

Leslie B. Neustadt, Maynard, O'Connor, Smith, & Caralinotto, Albany, N.Y., for defendant-appellee.

BEFORE: NEWMAN and JACOB, Circuit Judges, and TSOUCALAS, ^* Judge.

JON O. NEWMAN, Circuit Judge.

This appeal concerns the tension between two constitutional principles--separation of church and state and the free exercise of religion--in the context of public education. Specifically, we must decide whether a school board's attempt to avoid Establishment Clause violations by restricting the religious expression of one of its teachers infringes that teacher's free exercise rights. Dan Marchi appeals from the January 23, 1998, judgment of the District Court for the Northern District of New York (Frederick J. Scullin, Jr., District Judge) to the extent that it granted summary judgment to the Board of Cooperative Educational Services ("BOCES") and dismissed Marchi's claim that a BOCES directive, ordering Marchi to refrain from using religious references in the delivery of his instructional program, is unconstitutionally vague and overbroad. In addition, Marchi challenges the denial of his motion for leave to amend his complaint. We conclude that the challenged directive is neither vague nor overbroad, and that Marchi's proposed amended complaint failed to set forth claims ripe for judicial review. Accordingly, we affirm.

Background

Marchi is a certified special education teacher who has taught socially and emotionally disturbed high school students since 1977. BOCES is a regional voluntary cooperative association of school districts with responsibility for the administration of special educational programs. In 1989, Marchi alleges that he underwent a dramatic conversion to Christianity. He acknowledges that he shared this experience with his students and that, in the fall of 1991, he modified his instructional program to discuss topics such as forgiveness, reconciliation, and God. See Complaint pp 17, 19, 22.

On September 14, 1994, John Daly, the Director of Special Education at BOCES, issued a "cease and desist" letter, directing Marchi to refrain from using religion as part of his instructional program. The letter stated:

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 or practices. Your personal beliefs about the role of religion in our society and its value to families and their children cannot be a part of the instruction given to your students.

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.

Marchi refused to abide by the directive because, in his view, to do so "would be detrimental to his students" and "would violate his conscience before God." Complaint p 34. After a teaching assistant informed BOCES that Marchi was continuing to use religious themes and materials in the course of his teaching, BOCES charged Marchi in March of 1995 with insubordination and "conduct unbecoming a teacher." The following month, Marchi was suspended indefinitely for violating the directive. A hearing on the charges was held before a state Department of Education hearing officer in July of 1995. The hearing officer found that Marchi had committed an act of insubordination and imposed a penalty of six months' suspension. Marchi's return to teaching was conditioned on his commitment, in a written affirmation, to adhere to the directive. Upon advice of counsel, Marchi affirmed that he would adhere to the directive.

On the same day that Marchi signed the affirmation, he sent a letter to Daly asking for clarification of the directive. Specifically, he asked if private prayer with a student, at the student's request, was permitted, and if he could respond to students' questions concerning religion. 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.

On his return to work in January of 1996, Marchi was reassigned to a Comprehensive Development Skills ("CDS") class. The students in CDS classes, who are autistic or mentally handicapped, have little or no communication skills. Shortly after Marchi resumed teaching, a teacher's aide saw a letter from Marchi to Paul Czech, the father of Ryan Czech, a student in Marchi's CDS class. Mr. Czech had sent an audiotape of religious music to school in Ryan's lunch box, along with a note stating that the music calmed Ryan. In response, Marchi wrote:

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 a teacher's conference and dismissal is at 11:30. May God Bless you all richly!

After learning of the letter, Dr. DiPierro, Marchi's supervisor, met with Marchi. Marchi indicated that because the letter was written to a parent, he did not consider it to be part of his "instructional program," and thus regarded it as outside the directive's reach. In a letter response. DiPierro informed Marchi: "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." No action was taken against Marchi in connection with this incident.

In the summer following the 1995-1996 school year, Marchi filed this section 1983 action, alleging that (1) BOCES violated his rights to academic freedom, free association, free speech, and free exercise of religion, as well as his rights under the Religious Freedom Restoration Act, by suspending him in 1995; (2) BOCES violated his right to due process and retaliated against him by assigning him to teach a CDS class upon his return to teaching; (3) the directive is unconstitutionally vague and overbroad; and (4) the directive had been applied to proscribe protected speech between Marchi and students' parents. Marchi sought a preliminary injunction to enjoin BOCES from enforcing the directive; the District Court denied the request.

Subsequently, BOCES moved for summary judgment. After discovery was completed, Marchi 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. The proposed amended complaint included allegations that BOCES violated Marchi's First Amendment rights by interpreting the directive to constrain Marchi with respect to his communications with students on matters not related to school curriculum both on and off school grounds during non-class times. Marchi contended that the deposition testimony of Daly, the author of the directive, demonstrated that BOCES intended to apply the directive to curtail these forms of allegedly protected speech.

During his deposition, Daly had been asked a number of questions relating to the meaning of the term "instructional program," as it is used in the directive. In response to the question whether the term covers an on-campus conversation during school hours, but outside the classroom, between a teacher and students on matters unrelated to the school curriculum, Daly stated, "I believe it does, yes." Marchi's attorney then asked: "Again, assuming that Mr. Marchi and the student had a conversation ... not related to the curriculum, off of school grounds, out of school hours, is that part of Mr. Marchi's delivery of his instructional program?" Daly responded: "Well, in my own personal opinion, given the influence that teachers have, I believe that a teacher's influence is extended often beyond the parameters of the school day."

The District Court granted BOCES's summary judgment motion and denied Marchi's request for leave to amend his complaint. Because Marchi challenges only the dismissal of his claim that the directive is unconstitutionally vague and overbroad and the denial of his motion for leave to amend his complaint, we limit our summary of the District Court's decision to those rulings.

Noting that "thousands of teachers of common intelligence are able to distinguish between their instructional program and their personal life and do so without violating the establishment clause," the District Court concluded that the directive was not vague. With respect to its alleged overbreadth, the District Court found that the directive "addresses only [Marchi's] instructional program and no other aspect of [his] personal life" and that "[h]ow [BOCES] might interpret the directive is not relevant to whether the directive is constitutional on its face." Accordingly, the District Court dismissed Marchi's facial challenge and denied his ...