The Volokh Conspiracy
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From Appeal of Brockway, decided Dec. 13 by Commissioner Rosa of the New York State Education Department:
Petitioner [Andrew Brockway] appeals the extension of a resolution adopted by the Beekmantown Central School District ("respondent") banning him from district property and imposing conditions upon his speech. The appeal must be sustained in part.
Petitioner served as a member of the board from 2013-2019. The record reflects that he was a persistent critic of the superintendent and other colleagues on the board.
During a board meeting on January 8, 2019, petitioner cursed at, and physically intimidated, the superintendent. Petitioner also suggested that the superintendent had an affair with a district employee. Petitioner was thereafter arrested and charged with menacing and harassment in the Town of Beekmantown Justice Court. The court issued a temporary order of protection that directed petitioner to refrain from contacting the superintendent. The order of protection expired in July 2019 and the criminal charges were eventually dismissed.
On January 30, 2019, petitioner resigned from his board position. Respondent thereafter sought an order removing petitioner from office under Education Law § 306, which was denied as moot (Application of the Bd. of Educ. of the Beekmantown Cent. Sch. Dist., 59 Ed Dept Rep, Decision No. 17,718).
In a determination dated February 26, 2019, respondent concluded that petitioner's accusation of infidelity during the January 8, 2019 board meeting constituted harassment on the basis of sex. Specifically, respondent found that the comment "potentially created a hostile work environment" under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 ("Title IX decision"). As a remedy for this violation, respondent imposed two conditions.
First, petitioner was "directed not to have any further contact with [the] Superintendent" or the employee whom he accused of having an affair. In this respect, respondent observed that "it is the Board's position that there should be no reason for [petitioner] to have further contact with [these individuals] in their capacity as employees of the District." Second, respondent prohibited petitioner from accessing school property through June 30, 2021 absent prior written permission from the board president. Finally, the board forbade petitioner from "engag[ing] in any action that could be construed as retaliatory" against district employees.
Thereafter, petitioner made public statements, as further described below, that respondent characterizes as "retaliation" or violations of its Title IX decision. The superintendent alleges that petitioner:
- "distributed audio recordings" on social media in spring 2019 repeating the infidelity accusation;
- emailed the superintendent in a "harassing" manner in November 2019;
- "threaten[ed] [a] lawsuit … regarding the reopening of schools during COVID" in August 2020;
- published the superintendent's children's education status during a district event broadcast on social media; and
- "created Facebook posts designed to elicite [sic] public support for" his campaign for a board position and to articulate his view that tenure should be denied to the employee who was the target of his infidelity claim.
On June 22, 2021, respondent "extended [its] no-contact directive through June 30, 2023" based upon the above communications, which it characterized as "failure to comply with the directives contained" in the Title IX decision. This appeal ensued.
The Commissioner concluded that the conditions "must be annulled," because they "do not reasonably relate to any violation of Title VII or Title IX":
As indicated above, the actions that supported the February 2019 order banning petitioner from accessing district property were severe. Petitioner physically intimidated the superintendent, conduct that resulted in his arrest and the filing of criminal charges. This was a serious breach of his duties as a board member; had he not resigned, such conduct would likely have supported his removal from office.
However, there is insufficient evidence on this record that petitioner remains a threat to district employees or property such that further extension of the order is justified. While respondent alleges that petitioner has subsequently engaged in crude or insensitive speech via social media and email, it does not allege that he has continued to engage in physical or verbal harassment comparable to the acts that gave rise to the Title IX decision. Additionally, respondent has not explained one of the more serious allegations—that petitioner published information regarding the superintendent's children's education status—in any level of detail. Therefore, on this record, I cannot uphold an extension of the prohibition on petitioner's access to district property.
Similarly, respondent's "no-contact" order cannot be maintained at this juncture. In February 2019, petitioner was directed to refrain from communicating with the superintendent and the employee "in their capacit[ies] as employees of the [d]istrict." It further prohibited him from engaging in "retaliation"—the label respondent has attached to all petitioner's subsequent communications regardless of their form, intended audience, or content.
Respondent appears to be using the "no-contact" order to shield itself from petitioner's speech, even where such speech may be protected by the First Amendment. For example, petitioner's alleged complaints and threat to file a lawsuit regarding school reopening are likely protected by the First Amendment. Under these circumstances, I find that a total prohibition on communication with the superintendent—the chief executive officer of the school district and a school officer—to be inconsistent with the First Amendment. Thus, respondent's extension of the "no-contact" order must be annulled.
This decision should not be construed as license for petitioner to harass district officers or employees. Should petitioner engage in threatening or abusive conduct, respondent may take all measures necessary to protect its members, school officials, school employees, and the public. In that respect, respondent retains the ability to impose reasonable time, place, and manner restrictions on petitioner's communications and the conditions under which it permits public participation at board meetings.