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MELZER v. BOARD OF EDUC. OF CITY SCHOOL DIST.

February 26, 2002

PETER MELZER, PLAINTIFF,
V.
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, CAROL A. GRESSER, IRENE IMPELLIZZERI, VICTOR GOTHAUM, 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 WEST PAGE 230 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.



The opinion of the court was delivered by: Block, District Judge.

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").*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 complaint.*fn3

FACTUAL BACKGROUND

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

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.*fn4 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.*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 erotica.
NAMBLA condemns pornography which further racial and sexual stereotypes and oppression.

DX D at 6.

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 acts involving 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 Responsibilities

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 ...


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