Garcetti Applied To Classroom Instruction
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Panse v. Eastwood, ___F.3d___(2d Cir. Dec. 18, 2008)(n.o.r.), is a critically important First Amendment case. Amazingly, the 2nd chose not to officially publish it. After noting that there was a conflict in the circuits over whether Garcetti applies to classroom instruction and stating the court will not resolve that issue, the court nevertheless, goes ahead and applies Garcetti to classroom speech and dismisses the case.

The court held that a public school teacher's statements encouraging his students to participate in a for-profit course he was conducting outside of school was made pursuant to his official duties. Therefore, the speech was unprotected. The decision is not particularly well written, which may explain why it is unreported. The court's reasoning was as follows:

But we need not resolve the issue of whether Garcetti or some other standard applies here
because Panse does not raise this issue on appeal and his claim would fail regardless of the
standard. Panse argues only that the district court erred in granting defendants’ motion without discovery or findings of fact as to the official in-class duties of a high school art teacher employed by the Enlarged City School District of Middletown, New York. However, the district court did not err in concluding that it is clear from the complaint that Panse’s statements were made pursuant to his official job duties as a high school art teacher. Panse’s statements – encouraging his students to participate in a for-profit course he was considering teaching outside of school that would include the drawing and sketching of nude models – were made to his own students, at school, during class, concerning a topic that he alleges he believed to be of importance to their continuing art education. Panse does not argue that defendants’ alleged restrictions on his speech were not reasonably related to the legitimate pedagogical concerns of limiting commercial solicitation during class time and investigating potentially inappropriate discussion of material that could be construed as being of a sexual nature.

Mitchell H. Rubinstein

07-3325-cv
Panse v. Eastwood
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS
COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN
WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL
APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE
PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE
WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE
AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF
THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE
ORDER WAS ENTERED.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 19th day of December, two thousand and eight.

Present: PIERRE N. LEVAL,
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
Circuit Judges.
_____________________________________________________
PETER PANSE,
Plaintiff-Appellant,
-v- (07-3325-cv)
KENNETH W. EASTWOOD, INDIVIDUALLY, VINCENT CRESCENZO, INDIVIDUALLY,
RICHARD ZUCKERMAN, INDIVIDUALLY, ANN E. ANZINI, INDIVIDUALLY, ELYSE
ANZINI, INDIVIDUALLY, AND THE ENLARGED CITY SCHOOL DISTRICT OF
MIDDLETOWN, NEW YORK,
Defendants-Appellees.

Appearing for Appellant: Drita Nicaj (Jonathan Lovett, on the brief), Lovett &
Gould, LLP, White Plains, N.Y.

Appearing for Appellees Ann E. Anzini
and Enlarged City School District of
Middetown, New York: Peter J. Biging, Lewis Brisbois Bisgaard & Smith
LLP, New York, N.Y.

Appearing for Appellees Kenneth W.
Eastwood, Vincent Crescenzo and
Richard Zuckerman: Sharon N. Berlin (Scott M. Karson and Michael F.
Mullen, on the brief), Lamb & Barnosky, LLP,
Melville, N.Y.

Appearing for Appellee Elyse Anzini: Richard M. Franchi, Law Office of Richard Franchi,
New Haven, C.T.

Appeal from the United States District Court (Robinson, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Plaintiff-Appellant Peter Panse appeals the district court’s dismissal of his First
Amendment retaliation action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Panse v. Eastwood, No. 06 Civ. 6697, 2007 WL 2154192 (S.D.N.Y. July 20, 2007). We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

This Court reviews de novo a district court’s grant of a motion to dismiss, “construing the
complaint liberally, accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff’s favor. Dismissal is inappropriate unless it appears beyond
doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citations and quotation marks
omitted).

The district court analyzed Panse’s complaint under Garcetti v. Ceballos, which held that:

“when public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” 547 U.S. 410, 421 (2006). In Garcetti, the Court
did not decide whether its analysis “would apply in the same manner to a case involving speech
related to scholarship or teaching” because “(t)here is some argument that expression related to
academic scholarship or classroom instruction implicates additional constitutional interests that
are not fully accounted for by this Court’s customary employee-speech jurisprudence.” Id. at
425.

It is an open question in this Circuit whether Garcetti applies to classroom instruction.
Compare Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 478-79 (7th Cir. 2007) (relying on Garcetti to uphold the dismissal of a First Amendment claim brought by a public school teacher related to a statement made in a current-events class) with Lee v. York County Sch. Div., 484 F.3d 687, 695 n.11 (4th Cir. 2007) (declining to apply Garcetti to case involving speech related to teaching).

We have held that school administrators may limit the content of school-sponsored speech so long as the limitations are “‘reasonably related to legitimate pedagogical concerns.’” See Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 722 (2d Cir. 1994)
(quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988)). “Whether a school official’s action is reasonably related to a legitimate pedagogical concern ‘will depend on, among other things, the age and sophistication of the students, the relationship between teaching method and valid educational objective, and the context and manner of the presentation.’” Id. at 723-24 (quoting Ward v. Hickey, 996 F.2d 448, 453 (1st Cir. 1993)).

But we need not resolve the issue of whether Garcetti or some other standard applies here because Panse does not raise this issue on appeal and his claim would fail regardless of the standard.

Panse argues only that the district court erred in granting defendants’ motion without discovery or findings of fact as to the official in-class duties of a high school art teacher employed by the Enlarged City School District of Middletown, New York. However, the district court did not err in concluding that it is clear from the complaint that Panse’s statements were made pursuant to his official job duties as a high school art teacher. Panse’s statements – encouraging his students to participate in a for-profit course he was considering teaching outside of school that would include the drawing and sketching of nude models – were made to his own students, at school, during class, concerning a topic that he alleges he believed to be of importance to their continuing art education. Panse does not argue that defendants’ alleged
restrictions on his speech were not reasonably related to the legitimate pedagogical concerns of limiting commercial solicitation during class time and investigating potentially inappropriate discussion of material that could be construed as being of a sexual nature.

We have considered the other arguments raised by Panse on appeal and find them to be without merit. Accordingly, the judgment of the District Court hereby is AFFIRMED.
Defendants’ request for costs is DENIED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:_______________________________

The First Amendment to the United States Constitution is the part of the United States Bill of Rights that expressly prohibits the United States Congress from making laws "respecting an establishment of religion" or that prohibit the free exercise of religion, laws that infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably assemble, or limit the right to petition the government for a redress of grievances.

Although the First Amendment only explicitly applies to the Congress, the Supreme Court has interpreted it as applying to the executive and judicial branches. Additionally, in the 20th century the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the limitations of the First Amendment to each state, including any local government within a state