The opinion of the court was delivered by: Block, District Judge.
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").*fn1
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.*fn2 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
I. Melzer's Teaching Career at BHSS
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.
II. Melzer's Involvement with NAMBLA
abolition of age-of-consent and all other laws which
prevent men and boys from freely enjoying their
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.*fn5 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
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.*fn6 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, "[w]ere I fulfilled as a
boy-lover, I would be much more at ease waiting for the millennium or
working in an inefficient environment. Right now, personal priorities
dictate that I get my own head together as a boy-lover. When and if that
occurs, I hope to come in again with renewed vigor." Id.
However, by March 1983 Melzer again was appearing on the masthead as a
member of the Bulletin Collective. In the December 1986 Bulletin,*fn7
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
of age or sex." DX I. Melzer further explained that although NAMBLA is
opposed to child abuse, NAMBLA "[does] not accept the view that erotic
young people are automatically abusive or exploitative." Id.
Sometime between August 1987 and October 1991, the Bulletin began
incorporating a statement of "Where We Stand" in every publication. See
DX K.*fn8 "Where We Stand" is a statement of NAMBLA's purpose,
proclaiming: "[w]e work to organize support for boys and men who have or
desire consensual sexual and emotional relationships and to educate
society on their positive nature. We speak out against the oppression
endured by men and boys who love one another and support the right of all
people to consensual intergenerational relationships." Id. Included in the
October 1991 issue was a guide to "Staying Safe and Happy as a Man/Boy
Lover." Id. The guidelines were "developed by NAMBLA activists." Id.
Included in the guidelines was advice on how to survive in a culture
hostile to NAMBLA. It explained, inter alia, how to deal with police,
where to store erotica, how to keep specific information about the
identity of your lover a secret; furthermore, it advised not to keep
photos where police might find them, and never to discuss "the specifics
of an illegal relationship with therapists or social workers." Id.
Melzer authored an article in the January-February 1992 Bulletin
entitled "Thanks — and stay generous." DX L. The article
acknowledged receipt of $1,000 in contributions, urged continued
donations, and boasted that membership "became 1,000 strong for the first
time in our history." Id. The March 1992 issue contained an article by
Melzer entitled "Keeping Up the Barricades." DX M. It commented on the
ability of some of NAMBLA's members to "present an image of strength to
the hostile hordes," solicited further contributions, and noted that "our
mission [is] steadfast. We are the good guys. We have prevailed for
[almost] fourteen years, and with your help we will continue to do so."
Id. A piece in the July-August 1992 Bulletin noted that Melzer was one of
three NAMBLA representatives to attend the "6th annual International
Pedophile and Youth Emancipation (IPCE) conference" in Amsterdam,
Holland. DX O. "Much of the three-day meeting [was] used to share
information about the situation for the boy-love/pedophile movement in
the various countries represented." Id.
In November 1992, Melzer reappeared on the Bulletin masthead as a
member of the Collective. Also included on the masthead, as in many other
issues, was a statement that the [Bulletin] content "is determined by the
Bulletin Collective, which includes all NAMBLA members working for the
Bulletin." DX P. In the "Letters" section of the following issue, which
again listed Melzer as a member of the Collective, an anonymous letter
addressed to NAMBLA entitled "Good Touches" appeared. DX Q at 8. "Good
Touches" explained how to "make that special boy feel good." Id. It made
suggestions regarding specific body parts and how best to "rub" them.
Id. It concluded that all the "suggestions are even better when done in a
warm shower." Id. In general, Melzer believes that the "Letters" section
of the Bulletin had "value." Tr. at 4351. With respect to this particular
letter, Melzer considered it "humorous," as "a take-off on some of the
. . . good touch, bad touch advice that . . . some professionals . . . go
around to schools . . . tell[ing] youngsters [about]." Tr. at 4344.
The June 1993 Bulletin, still listing Melzer as a member of the
Collective, contained a letter entitled "In Praise of Penises." DX V. The
letter celebrated oral sex with pre-adolescent boys. Melzer considered
the letter to be merely an "emotional safety valve," an "outlet" for
fantasies. Tr. at 4531. Melzer considered many of the articles published
in the Bulletin to be such "emotional safety valve[s]." Tr. at 4352; see
also Tr. at 4419.
III. Relationship Between Meizer's NAMBLA Activities and His Teaching
Melzer readily admits that he is a boy lover, and is attracted to boys
up to the age of about 16. See Tr. at 3911, 4102, 4499. Nonetheless, the
record does not contain any evidence that Melzer has ever engaged in a
sexual relationship with ...