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Ousting Paladino will be tough task, legal experts say

No matter how repugnant Carl Paladino’s comments about President Obama and the first lady may have been, they are not enough to kick him off the Buffalo School Board, legal and educational experts say. He has protection for his offensive speech under the First Amendment.

The board – which will petition the state education commissioner for Paladino’s removal – may be able to make the case that his comments violated policy or code of conduct as a sworn member of the Buffalo Board of Education. But so far, there hasn’t been much to hang that on, the experts added.

Even if state Education Commissioner MaryEllen Elia decides to remove the board member – something commissioners hesitate to do – there is likely to be a court challenge that could drag on for years.

One thing is for sure: It’s highly unusual to seek removal of a board member for what he said in the political arena.

“I think we’re in unchartered territory,” said Jay Worona, general counsel for the New York State School Boards Association.

The News spoke with five educational and legal experts – none with connections to Paladino – who have been watching from afar during this most recent drama unfolding on the Buffalo Board of Education over the past two weeks.

They, too, were appalled by the inflammatory statements Paladino made in Artvoice on Dec. 23 that wished Obama die of mad cow disease and the first lady be sent to live with a gorilla. But they also acknowledged Paladino has that right under the First Amendment.

“The First Amendment doesn’t allow the government to censor speech because it’s disturbing or upsetting or controversial,” said Paul Cambria Jr., one of the area’s top criminal defense attorneys and a leading First Amendment lawyer. “If that was the rule, only government-approved speech would be allowed.

“In essence, what the School Board is doing is saying to the government, ‘We don’t like what he said and we want you to punish him for saying it,’ ” Cambria said. “That’s the exact thing the First Amendment protects us from, as long as you don’t break the law, incite a riot, yell ‘fire’ in a crowded theater – things like that.”

He suggested it probably would be quicker and cheaper for the school district to wait for Paladino’s term to expire in 2018 and take him on in the next election.

The School Board, nonetheless, is pressing ahead.

A majority of the School Board voted last week to retain Syracuse-based attorney Frank Miller to assist in petitioning the state education commissioner for Paladino’s ouster.

But even Miller – who is well-versed on free speech, having argued a First Amendment case before the U.S. Supreme Court on behalf of a small school district in upstate New York – acknowledged that trying to remove Paladino from the board won’t be easy.

“It’s not as simple as it might sound at first blush,” Miller said, “So we’re still digging into that, and it will be a little while before we form a specific strategy.”

Miller expects to know more this week.

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‘Willful misconduct’

State education law allows school districts to ask the commissioner to remove a board member for “willful misconduct or neglect of duty.”

Historically, state education commissioners have been reluctant to remove board members at all, said David Bloomfield, professor of educational leadership, law and policy at Brooklyn College.

In fact, the state’s education commissioner has removed only four Western New York school board members in nearly a quarter century, including one from Lackawanna in 1995, when he knocked another board member to the floor during a public meeting.

The situation in Buffalo doesn’t appear to meet those standards of “willful misconduct,” said Bloomfield, who has followed the Paladino uproar.

“But,” Worona argued, “ ‘neglect of duty’ is a little more obscure – and I think that’s what the district will be going for here.”

No one is questioning Paladino’s First Amendment rights, Worona said.

The question, he said, is whether Paladino’s exercising those rights has disrupted the education for Buffalo students, particularly since his comments have received such widespread attention and media coverage.

“The law doesn’t favor the board – but the politics do,” Bloomfield said. “It’s an easy way to for the commissioner to satisfy social values and respect for minorities.”

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Different strategies

Paladino’s enemies been desperate to get him off the School Board, and various legal strategies have been kicked around in recent days to help build a case.

School Board members have argued that Paladino’s comments violated the state’s Dignity for All Students Act, which went into effect in 2012 and requires districts to provide students with an environment free of discrimination, harassment and bullying.

But the problem with taking that approach is Paladino’s comments about the president weren’t made on school grounds and it’s unclear whether the law has been used to remove an elected official, the legal experts said.

School board members also have argued that Paladino’s latest comments underscore an ongoing pattern of bullying board members and administrators that interferes with board business.

But how does the commissioner decide where to draw the line? Bloomfield said.

And why now?

“At what point would such statements essentially make the commissioner into a rhetorical nanny?” Bloomfield said.

Another strategy has emerged only in recent days. Paladino’s critics claim he broke the rules in a subsequent Artvoice article about the new teachers contract by detailing private conversations made to board members during executive session.

But that was not part of the resolution that passed the school board.

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First Amendment standard

The School Board has to file its formal petition 30 days from Dec. 23 – when Paladino’s comments about the Obamas erupted into a community firestorm.

“As offensive as Mr. Paladino’s remarks might be to some people, you’re probably going to have to look at some regulation, some law or board policy that existed prior to his remarks being made to see if there has been any violation,” said Thomas Ramming, a clinical associate professor in the University at Buffalo’s Graduate School of Education.

“Then,” Ramming said, “the action the board is seeking may be doable.”

Cambria agreed.

“There is no higher standard than the First Amendment,” Cambria said.

“Unless,” Cambria added, “they can show that there is a specific rule of the board, or of the education law that Carl violated – and they haven’t pointed to one yet.”

Despite a growing chorus of calls for his resignation over the past couple weeks, Paladino has refused to step down.

And in the end, Cambria said, this is just an extension of the ongoing acrimony on the Buffalo Board of Education.

This latest round is going to be a costly fight because the school district will have to pay legal fees for both the board, as well as Paladino, Cambria said.

“If they really wanted to spend their dollars wisely, they’d use them on education,” Cambria said. “They would simply mount a campaign to defeat him next time. It would be quicker.

“If this goes into litigation,” Cambria said, “it would take years.”

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