High school hit with free speech lawsuit

November 3, 2006
By

JOHN RUCH

STONYBROOK—The headmaster of English High School violated a substitute teacher’s freedom of speech by banning him from the school as retribution for speaking out against its military programs, according to a federal lawsuit filed by the teacher, the American Civil Liberties Union (ACLU) and the Boston Teachers Union (BTU).

“We’re suing the headmaster of Boston English High School for infringing [on] my First Amendment rights,” said the teacher, Jamaica Plain resident Jeffrey Herman, in a Gazette interview.

Herman spoke against funding for the school’s Junior Reserve Office Training Program (JROTC) at a March Boston City Council hearing.

On his next few assignments at the school after that hearing, Herman said, Headmaster José Duarte repeatedly shouted at him to leave the building, and later removed him from the substitute teacher call-up list.

Duarte eventually claimed the removal was for “incompetence,” Herman said, adding that he is not incompetent and was, in fact, a regular teacher at the school for five years before the incidents.

“Tell those people to get a life,” Duarte said of hearing attendees in a March Gazette interview, adding, “Just so you know my bias, I was in the military and it was the best experience of my life.” Those quotes are cited in the lawsuit.

When Duarte was contacted by the Gazette this week, an assistant speaking on his behalf said, “He has no comment.”

Herman said Duarte is being sued both personally and as an employee of Boston Public Schools (BPS). The suit also involves the BPS policy that allows headmasters and principals to decide which substitute teachers to place on the do-not-call list without any reason or standards.

“We feel that rule is unconstitutional if it allows [Duarte] to infringe my freedom of speech,” Herman said.

BPS has not reviewed the suit and has been told by its attorneys not to comment directly on its allegations, said spokesperson Jonathan Palumbo.

“We do give principals and headmasters the opportunity to set the principles and priorities on which substitute teachers they want to work with or don’t want to work with,” Palumbo said, adding that there are no rules governing such decisions.

“It works both ways,” he said, also acknowledging that substitutes are free to accept or reject calls from schools.

When asked if there have been previous complaints about the system involving personal disputes, Palumbo said, “I don’t think it happens that often.” He added that headmasters are also free to favor teachers by calling them up more frequently. “Headmaster” is a traditional BPS term for the principal of a high school.

“The union’s position is that teachers and public employees have a right to exercise their First Amendment rights of free speech,” said BTU spokesperson Steve Crawford. He said the union is providing legal assistance to Herman.

In a press statement, BTU attorney Matthew Dwyer called Duarte’s actions “plainly retailiation… No government official has the right to punish someone for expressing ideas outside of school simply because the official disagrees.”

ACLU attorney Sarah Wunsch, who is handling the case, did not return a Gazette phone call for this article. In a press statement, she noted that public employees have the right to speak out on public issues.

In the lawsuit, filed Oct. 17, Herman is seeking to be put back on English High’s call-up list.

“And I’m asking for a letter of apology from Duarte,” he said. “I think he needs to learn the First Amendment of the Bill of Rights and learn why we’re fighting for democracy and freedom instead of losing it at home.”

The lawsuit also seeks punitive damages, compensation for lost work (though Herman said he taught at other schools anyway) and court costs.

“The response of the administration at the high school is, I have 144 other schools I can go to,” Herman said, adding that’s like being told, “You can’t live in the United States, but there are 187 other countries you can live in.” As a JP resident, English High is the most convenient for him, he said.

The City Council hearing included unsubstantiated allegations that English High was making JROTC a graduation requirement. The allegations were apparently based on the school’s actual, and also controversial, practice of randomly assigning students to empty slots in the JROTC program.

Students and teachers from English High’s JROTC program also attended.

At the hearing, Herman complained about a military atmosphere at the school, including Duarte’s practice of playing reveille, the traditional military wake-up call, every morning.

Herman also reported that he had been reprimanded by Duarte for giving students the assignment of writing and sending letters to President George W. Bush, which reportedly turned out to be “100 percent critical of the president.” Herman told the Gazette the letters did not contain threats or anything illegal.

Herman is himself a former college ROTC student who became an anti-war activist. He is politically active in general, having worked for the United Nations and, as a Latino, as an immigrant liaison and disaster recovery manager.

“I never spoke degradingly to any student in JROTC,” Herman said. “I never spoke about the war in class.”

Prior to the letter-writing reprimand, he also had a good relationship with Duarte, he said. Duarte was once a witness for Herman in an assault case, and Herman once gave the headmaster a lift to a T station.

“He and I, I wouldn’t say we’re friends,” Herman said, adding, “We weren’t enemies.”

That changed after the council hearing, Herman said, adding that Duarte reportedly learned about Herman’s participation from a Gazette article. Four days later, he was called up to substitute at the school.

“I go into the school and Duarte sees me coming,” Herman said. “He shouts out, ‘Get out of here! We don’t want you here anymore!’”

After checking with the school official in charge of substitutes, he was allowed to stay and teach.

Two days later, the same thing happened, Herman said, with Duarte saying, “‘Didn’t you hear me? I don’t want you coming here anymore.’”

After a third repeat of the incident, Herman lodged an official union complaint and contacted elected officials. Meanwhile, Duarte was placing Herman on the do-not-call list.

However, for some reason, Herman got called up again anyway. That led to a fourth incident in which Duarte called Herman into a meeting room, Herman said. “He asks me, ‘What don’t you get about the word no? We don’t want you here anymore.’”

He said Duarte also told him not to hand out copies of a newspaper article about the hearing and not to discuss the controversy with “his children,” meaning the students.

Herman said he was once again allowed to stay, but that Duarte assigned him to answer phones in the office instead of teaching.

“I haven’t been called back since,” Herman said. He reportedly remains on the do-not-call list.

According to Herman, Duarte never said that the anti-JROTC comments or anti-war activism were involved in the ban. Instead, he was told, “I’m incompetent.”

“He didn’t find me incompetent before,” Herman said. Indeed, Duarte once hired Herman as a full-time history teacher at English High, a job he said he lost after budget cuts. Last year, Herman said, he taught 140 out of 172 school days at English High, and did such extra work as proctoring MCAS tests.

Herman said Duarte offered only two examples of “incompetence.” One was the letter-writing assignment. The other is Herman’s penchant for performing magic tricks for students in exchange for their completion of assignments. Herman is also a professional magician and said he has performed at student-teacher events as such.

Besides the issue of his freedom of speech, Herman said he remains concerned about the substance of his remarks, claiming that aggressive military recruitment continues at English High and other BPS schools.

He said that while he was teaching last year at Roslindale’s Washington Irving Middle School, a military helicopter landed on the playground before a required assembly of sixth- and seventh-graders.

“Two Guardsmen jumped out and said, ‘How would you like to do that?’ They gave a pitch for joining the service,” Herman said. “The co-pilot looked like Farrah Fawcett-Majors. She took off her helmet and all this beautiful blonde hair came spilling out.”

“I think it’s outrageous that the inner-city schools are used as a breeding ground for providing cannon fodder for the military that is fighting a war I vehemently oppose anyway,” Herman said.

Palumbo noted that JROTC programs are entirely optional and must be created and funded by individual schools, not by BPS. “We’re not coming down on either side of it,” he said.

He said he was not aware of the helicopter landing, but said the federal No Child Left Behind Act requires schools to be accessible to military recruiters. However, they can’t recruit in required assemblies or classes.

“We want to make sure students have the choice of whether or not they engage in the conversation,” Palumbo said.

Under those rules, some other activities Herman said he observed appear to be permissible, including military officers handing out pencils and Frisbees at a table in English High.

Asked about military recruitment in BPS, Crawford would comment only on Herman’s specific case.

“Again, he has a right to express himself,” Crawford said. “Teachers have a right to speak their minds.”

Since the controversy began, Herman said, he has been criticized by some fellow teachers, but supported by others. One teacher at another school had him speak to a class that was studying the Bill of Rights. “There was applause when I was finished,” Herman said.

“I’m looking forward to going back there,” Herman said of English High. “I’m looking forward to getting a letter from Jose Duarte, and I want it worded to make sure it’s clear that he’s apologizing.

“I’m going to stick this out and see it through.”

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