Melzer v. Board of Educ. of City School Dist.
| Decision Date | 26 February 2002 |
| Docket Number | No. 93 CV 5942(FB).,93 CV 5942(FB). |
| Parties | Peter MELZER, Plaintiff, v. 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, Sean Courtney and The City of New York, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Eugene B. Nathanson, New York City, for Plaintiff.
Michael A. Cardozo, Corporation Counsel of the City of New York by Jonathan L. Pines, Assistant Corporation Counsel, New York City, for Defendants.
DECISION AND ORDER
Plaintiff, Peter Melzer ("Melzer"), seeks reinstatement to his tenured teaching position at the Bronx High School of Science ("BHSS") claiming, pursuant to 42 U.S.C. § 1983, that he was discharged by the defendant Board of Education of the City School District of the City of New York ("BOE") in retaliation for the exercise of his First Amendment rights as a member of the North American Man-Boy Love Association ("NAMBLA").1 The discharge was implemented after Melzer, invoking his right to a hearing under New York Education Law § 3020-a, unsuccessfully challenged the BOE's finding of probable cause for his dismissal.2 The parties have agreed that the testimony and evidence adduced at the hearing, as supplemented by Melzer's in-court testimony, shall constitute the trial record before the Court. The case being tried without a jury, the following constitutes the Court's findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure, resulting in rejection of Melzer's First Amendment claim and dismissal of his complaint.3
Melzer graduated from City College with a Bachelor's Degree in Physics in the early 1960's. He started teaching for the BOE in 1963, and is licensed in physics and general science at the high school level and science at the junior high level. At some point early in his teaching career, Melzer received a Master's Degree in Physics Education. In 1968, Melzer began his teaching career at BHSS, where he continued to teach, as a tenured teacher, until 1992. For the 1992-93 school year Melzer was on a one-year sabbatical leave. BHSS is a specialized high school that focuses on a science curriculum. To qualify for admission, students take a competitive scholastic achievement test.
Throughout the course of his teaching career at BHSS, Melzer has taught all grade levels, 9 through 12, in physics and science. Melzer has also participated in a volunteer program to teach physics to area junior high school students as part of a special District Outreach Program. Melzer's other school-related activities included involvement with the Physics Club of New York, advising the Bronx High School Science Physical Science Journal, and organizing the Regional Science Olympiad Competition. Melzer has received numerous teaching commendations, and all of his evaluations have been satisfactory.
Established in 1978, NAMBLA's Constitution and Position Papers state that it is "an organization founded in response to the extreme oppression of men and boys involved in consensual sexual and other relationships with each other." DX D at 1.4 Membership "is open to all individuals sympathetic to man/boy love in particular and sexual freedom in general." Id. Specifically, NAMBLA advocates, inter alia:
abolition of age-of-consent and all other laws which prevent men and boys from freely enjoying their bodies
release of all convicted pedophiles abolition of all laws which limit freedom of expression, including child pornography laws
support of all boys and men who voluntarily choose to participate in teenage hustling
opposition to all attempts by the state to interfere with consensual and non-coercive sexuality
replacement of existing age-of-consent laws with laws empowering children— including the right to alternative home environments (such as homes operated by children), self-education (i.e., the option not to attend), and the right to conduct their sexual lives with no more restriction than adults
See id. (emphasis in original).
NAMBLA proposes achieving these goals by: "(1) building a support network for such men and boys; (2) educating the public on the benevolent nature of man/boy love; (3) cooperating with the lesbian, gay, and other movements for sexual liberation; (4) supporting the liberation of persons of all ages from sexual prejudice and oppression." Id.
A Steering Committee governs NAMBLA between general meetings of its members. The Steering Committee is comprised of at least twenty NAMBLA members drawn from local chapters, and meets at least every two months. The responsibilities of the Steering Committee include, inter alia, setting membership fees, calling general membership meetings, expelling members for good cause, forming subcommittees for specific activities, voting on organizational matters between general membership meetings, directing the disbursement of funds, and appointing NAMBLA officers. NAMBLA officers include a treasurer, membership secretary, corresponding secretary, recording secretary and international secretary.
Melzer became a member of NAMBLA sometime in 1979 or 1980, and has served the organization in various capacities since that time. Melzer was a member of the group that facilitated drafting NAMBLA's position on child pornography. See Tr. at 4478-91.5 It states:
NAMBLA supports all voluntary, nonviolent sexual activity. The depiction of such activity is not harmful, so long as those involved agree. NAMBLA calls for the abolition of all laws which limit freedom of expression, including child pornography laws.
NAMBLA condemns those who exploit children and others for profit in pornography and demands just compensation and the full informed consent of those depicted in cases of the commercial distribution of erotica.
NAMBLA condemns pornography which further racial and sexual stereotypes and oppression.
Additionally, Melzer intermittently served as a member of the Steering Committee shortly after becoming a member, and as NAMBLA treasurer during the 1980's. See Tr. at 3809.6 As early as 1982, Melzer was also actively participating in the organization by serving on the editorial staff of the Bulletin, known as the Collective. The Bulletin is a newsletter published by NAMBLA ten times a year, containing various articles relating to NAMBLA's goals. The Collective is responsible for determining the content of the Bulletin, and includes all NAMBLA members working for the Bulletin. All members of the Collective are listed on the Bulletin masthead, and have a voice in choosing articles for publication. See Tr. at 3968-69. Melzer, on occasion, exercised his right to veto articles. See id. The Bulletin is made available to NAMBLA members by direct mail, and is offered for sale to the public at various magazine and book stores. NAMBLA does not investigate whether subscriptions are purchased by children or adults; it will distribute the Bulletin to anyone who pays for it. See Tr. at 4554.
In the March-April 1982 issue of the Bulletin, Melzer expressed "disillusionment and disappointment" with NAMBLA's priorities and leadership. DX E at 5. As a result, Melzer resigned from the Steering Committee and the Collective by authoring an article entitled "Taking a Leave of Absence." Id. The article concluded, Id.
However, by March 1983 Melzer again was appearing on the masthead as a member of the Bulletin Collective. In the December 1986 Bulletin,7 Melzer authored an article entitled "Police Infiltrator." DX G. The article commented on the activities of Kevin Healy ("Healy"), a detective with the Manhattan South Public Morals Division of the New York City Police Department, who posed as a NAMBLA ally. Healy was reported by Melzer to be responsible for a "web of lies and coercion" that led to the arrest of a NAMBLA Steering Committee member. Id. In a continuation of the police infiltrator story in the January-February 1987 issue of the Bulletin, Melzer wrote that Healy preyed on vulnerable members of the organization and caused one of them to mail a file of "my Bulletin articles to my employer." DX H. Melzer stated in the article that he had given testimony at the trial of the NAMBLA member who was arrested, and he encouraged people to contribute to that person's defense fund because he was an important member of the NAMBLA community and "fought tirelessly to get NAMBLA recognized." Id. Melzer does not believe that an individual who has sex with an under-aged youth should go to jail. See Tr. at 4667. Furthermore, he believes that the laws criminalizing sexual acts with children "are not humane and many laws are applied in an inhumane way." Tr. at 4502.
In the June 1987 Bulletin, a letter by Melzer to the Editor of the New York Post was reprinted, wherein Melzer wrote that "NAMBLA believes that the ability to experience sexual pleasure is a gift enjoyable by everyone regardless of age or sex and should be the right of everyone regardless...
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