James J. Kilpatrick

Having recently botched one opportunity to clarify the free speech rights of public employees, the Supreme Court now is looking at a second chance. The pending case stems from a nasty incident at a high school in upstate New York. It potentially affects public employees everywhere.

The underlying facts in Averill Park v. Cioffi are not seriously in dispute. In the fall of 2001, as classes began at Averill Park High School near Albany, Kevin Earl was beginning his seventh year as football coach. Louis J. Cioffi was in his second year as director of physical education; earlier he had served for 18 years as a teacher of social studies and part-time athletic director.

As Judge Richard J. Cardamone would explain in the U.S. 2nd Circuit, the two instructors did not get along. Cioffi complained to the school board repeatedly about Earl's coaching methods. It was against that background of internecine animosity that in early October the mother of a 14-year-old freshman sent a disturbing letter to the president of the school board.

The gravamen of her complaint was that her son had been brutally hazed by older players. The sexual harassment in this case is known as "tea-bagging." It is ugly. As director of phys ed, Cioffi launched an investigation. Early in November, he wrote Superintendent Michael J. Johnson to renew his criticism of Coach Earl and to express his concern over the school district's handling of the affair. The story had burst into the Albany Times-Union.

In December, the abused youngster filed a criminal complaint. A number of students and teachers were arrested. The entire high school coaching staff was suspended. It was a serious embarrassment. On Jan. 22, 2002, the school board met privately and agreed to fire Cioffi as athletic director by abolishing his position. A week later Cioffi called a press conference and aired his side.

That did it. The board formally fired him from the athletic activities he had supervised in some degree for 20 years. He was permitted to stay on the faculty as a tenured teacher of social studies at a lower salary. Before long he sued the school district for violating his rights of free speech. He lost in U.S. District Court but won a reversal in the 2nd Circuit. From that judgment the school district now seeks Supreme Court review.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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