Did you know that in the Netherlands the Christmas tradition involves Sinterklaas (Santa Claus) accompanied not by elves but by “six to eight black men”? No? Me neither. At least not until I read Melnyk v. Teaneck Board of Education. Let me ‘splain.

This brouhaha started when a high school teacher of Literature and Creative Writing assigned her students to read an essay by David Sedaris entitled “Six to Eight Black Men.” This happened on December 6, 2013—St. Nicholas’ Day. The teacher, a woman of Dutch descent, probably enjoyed teaching the students about the customs in her family’s ancestral home. Those customs include people dressing up as Zwarte Piet, the traditional name for the “six to eight black men” who helped out Sinterklaas with the delivery of presents.

If you do a little Google research on Zwarte Piet you will quickly discover that ZP has become a lightning rod for controversy over racism vs. political correctness in the Netherlands. White people who dress up as black people may find it amusing to do so, but the evidence is pretty clear that many people, of all colors, find such customs to be offensive, insensitive and a cruel reminder of parts of our past we are not proud of. So there have been protests and lawsuits in the Netherlands over this and the custom seems to be evolving toward a more inclusive kind of ZP.

But back to our story. According to the court, Ms. Melnyk told her students that people in the Netherlands still dress up as ZP. Then she pulled out her cell phone to show the kids a picture of her relatives who still live in the old country: white folks in black face.

It did not go over well with at least one student, who promptly told the teacher that she found the picture to be racist and offensive. One can imagine the teacher’s defensive reaction to that—after all, these were not anonymous Dutch people on her cell phone. This was family. Thus she defended the practice as simply an illustration of cultural differences. The student still said the picture was offensive, and the teacher broadened the dispute by pointing out that “the Dutch had abolished slavery long before the United States.”

The student reported the incident to another teacher. From there, it went to an assistant principal, the superintendent, and then the district’s anti-bullying specialist, who conducted a formal investigation. That investigator concluded that Ms. Melnyk had violated the district’s HIB policy (Harassment, Intimidation and Bullying) by displaying a picture that was “reasonably perceived as motivated by race or color” and “created a hostile environment for [the student].” The administration issued a formal reprimand to the teacher.

Ms. Melnyk filed a grievance over this and won. Pursuant to the district’s collective bargaining agreement the matter ended up in front of an arbitrator who ordered the district to remove the reprimand from the personnel file. A New Jersey court affirmed that decision.

You would think that would be the end of our story but it’s not. Ms. Melnyk then filed suit, naming the district, the superintendent, the A.P. and the anti-bullying specialist. In the suit, she alleged that the district’s HIB Policy was an unconstitutional infringement of her rights to free speech.

She lost. The court held that the HIB Policy was carefully crafted so as not to infringe on the right of free speech. As to this particular incident, the court held that Ms. Melnyk’s decision to display that photo on her cell phone was not protected speech, mostly because it happened in the classroom. Key Quote:

Taking form and content into consideration, courts have found that in-classroom speech made by an educator pursuant as part of a curriculum is not speech on a matter of public concern.

Lawyers for the teacher cited cases involving university professors, where academic freedom is more robust, but the court held that those cases were not relevant. The court pointed out four key distinctions between public schools and higher education:

1. K-12 schools are involved in inculcating societal values; universities encourage broader explorations;
2. K-12 teachers and administrators act “in loco parentis”;
3. K-12 schools “face special needs of school discipline; and
4. K-12 schools must consider the maturity level of the students.

So there you have it. An interesting read for a Friday. The case of Melnyk v. Teaneck Board of Education was decided by the U.S. District Court for New Jersey on November 22, 2016.

DAWG BONE: TEACHERS DON’T HAVE MUCH “ACADEMIC FREEDOM” WHEN ON THE JOB AND IN THE CLASSROOM.

File this one under: FREE SPEECH