Justices Decline Appeals on Private School Zoning, Public-Sector Speech

By Mark Walsh — May 13, 2019 3 min read

The U.S. Supreme Court on Monday declined to hear the appeal of a private religious school in a zoning fight with an Ohio municipality.

Separately, the justices refused to take up a case about whether its key precedent evaluating First Amendment retaliation claims by public employees applies to a claim alleging retaliation based on an worker’s association with a public-sector union.

In the private school case, the justices declined without comment to hear the appeal of the Tree of Life Christian Schools, which says that the city of Upper Arlington, Ohio, has refused to approve zoning that would allow the school to use a building it purchased to consolidate several campuses.

The building was zoned for office and research in a district that welcomed daycare centers, outpatient surgery centers, and churches. The city sought to keep the building in use as a commercial office building.

Tree of Life sued under the federal Religious Land Use and Institutionalized Persons Act, which says that no government “shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”

Lower federal courts upheld the city’s zoning and rejection of the school’s proposed use of the building. The school appealed to the Supreme Court with the aid of Alliance Defending Freedom, a Scottsdale, Ariz.-based religious legal organization, along with multiple groups that filed friend-of-the-court briefs on its side. They urged the court to clarify the requirements of RLUIPA.

“Even when religious assemblies or institutions like Tree of Life definitively prove they receive worse zoning treatment than nonreligious assemblies or institutions, they still lose,” under existing appeals courts interpretations of the law, the school argued in its appeal in Tree of Life Christian Schools v. City of Upper Arlington, Ohio (Case No. 18-944).

The city, in a brief urging the justices not to take up the case, said, “The school seeks to use RLUIPA not to prevent discrimination, but to achieve a zoning change it could not achieve through the available legislative and administrative processes.”

Public-Employee Speech

In Township of Millburn v. Palardy (No. 18-830), the justices declined an invitation to try to clarify whether its jurisprudence on public-employee speech on matters of public concern covers alleged retaliation based on the employee’s association with a public-sector union.

The case involves Michael Palardy, a police officer in Millburn, N.J., who alleges that he faced retaliation for his activism with two local police unions. Palardy says in court papers that he was passed over for police chief in Millburn (and eventually took a job as a school district security coordinator) because of his involvement with contract negotiations and disciplinary proceedings as a union official.

The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled that Palardy’s retaliation claims were not blocked by the Supreme Court’s 1983 decision in Connick v. Myers, which set out a two-step framework for addressing First Amendment retaliation claims by public employees, including whether the employee was speaking on a matter of public concern.

The 3rd Circuit held that “mere membership in a public union is always a matter of public concern” under the Connick analysis.

The township appealed that ruling to the Supreme Court, joined by a friend-of-the-court brief that was signed by the National School Boards Association.

The 3rd Circuit’s decision “threatens to increase the misuse of constitutional litigation to end-run dispute-resolution mechanisms under state law and governing collective bargaining agreements,” the NSBA brief says.

But Palardy argued in a brief that the justices should not take up the township’s appeal, in part in light of the Supreme Court’s decision last term in Janus v. American Federation of State, County, and Municipal Employees Council 31, which upheld the First Amendment concerns of non-union members to avoid paying service fees.

“In the wake of Janus, it is difficult to see how a lower court could hold that union membership is not of public concern,” Palardy’s brief says. “If subsidizing a union inevitably entails expression on a matter of substantial public concern, then being a member of a union necessarily does so, as well.”

A version of this news article first appeared in The School Law Blog.


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