Wednesday, September 4, 2013
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a tenured teacher in light of the following:
This appeal involves a second disciplinary proceeding brought against petitioner Theodore Smith. Petitioner, a tenured teacher, was terminated when the arbitrator in the instant proceeding found that respondent New York City Department of Education had sustained the charges stemming from the claim that petitioner had made death threats against the initial arbitrator in the prior disciplinary proceeding. The death threats took place during a telephone conversation between petitioner and the lawyer who represented him in the prior disciplinary proceeding.
When the arbitrator learned about the death threats, he recused himself and was replaced by a second arbitrator, who sustained the charges against petitioner based on, among other things, a failure to properly supervise students and excessive absences. As a result, petitioner was suspended without pay for one year. Thereafter, respondent investigated the alleged death threats, and instituted the instant proceeding. Upon finding the evidence supporting the alleged death threats credible, the arbitrator recommended a penalty of termination.
The attorney disclosed the communication:
We note that petitioner's former attorney only disclosed the threats because he believed that petitioner's increasingly erratic behavior rendered him genuinely dangerous.
The court held that "true threats" are not protected by the First Amendment. (Mike Frisch)