By Charles Toutant, From New Jersey Law Journal

A teacher in Union Township in Union County, New Jersey, who faced tenure charges over her anti-gay postings on Facebook can proceed with her civil rights suit against the school district, a federal judge in Newark has ruled.

U.S. District Judge Kevin McNulty of the District of New Jersey granted the school district’s motion to dismiss three counts and part of a fourth, but denied the district’s motion to dismiss six other counts. The judge rejected the school district’s claim brought under the Younger v. Harris abstention doctrine, which requires federal courts to refrain from interfering with pending state-court proceedings, reasoning that the tenure charge brought by the district in state court was settled long ago.

The teacher, Jenye Viki Knox, made the comments in September 2011, in response to a bulletin board that was posted at Union High School recognizing October as Lesbian, Gay, Bisexual and Transgender History Month, according to court documents.

Court documents did not say what Knox wrote on Facebook that prompted the controversy. Garden State Equality, a statewide gay-rights group that sought Knox’s ouster, said she wrote on Facebook that she was “‘pitching a fit’” over the bulletin board. After her initial comments drew criticism from other posters, according to Garden State Equality, Knox issued a lengthy retort that said in part that homosexuality is a “‘perverted spirit,’” adding, “‘Why parade your unnatural, immoral behaviors before the rest of us?’” Her postings made clear that her views about homosexuality were based on her religious beliefs.

The school district initiated tenure charges against Knox for insubordination and conduct unbecoming in December 2011. In October 2012, the parties settled the tenure charges, with Knox agreeing to resign and to repay $5,854 in wages she received while on suspension. Administrative Law Judge JoAnn LaSala Candido approved the settlement in November 2012, and in December 2012, the commissioner of education issued a final decision dismissing the tenure case subject to compliance with the settlement. In October 2013, Knox sued the district, Superintendent Patrick Martin, board attorney James Damato and principal Edward Gibbons. The suit said Knox was an adviser to the school’s gospel choir and Bible study group and that her superiors knew she was an ordained minister.

The school district, in its motion to dismiss the complaint, cited the 1994 ruling from the U.S. Court of Appeals for the Third Circuit in O’Neill v. City of Philadelphia for the proposition that where a state administrative proceeding has become final due to a claimant’s failure to exhaust administrative remedies, the matter remains pending for Younger purposes. However, O’Neill did not involve a fully negotiated and administratively approved settlement, like the present case, McNulty said.

Knox “is not attempting an end-run federal appeal of a state judgment,” McNulty said. She does not seek to overturn the settlement, but asserts claims for damages based on alleged deprivations of constitutional rights, he said. While the school district criticizes Knox for settling, it “agreed to compromise the tenure charge in a way that rendered state-court review moot. When settling the tenure charge, the board could have attempted to obtain a more general release; it didn’t,” McNulty said.

McNulty granted the school district’s motion to dismiss Knox’s claims for constructive discharge, intentional infliction of emotional distress, civil rights violations under 42 U.S.C. Section 1981 and for racial discrimination under the equal protection clause. But the judge denied the district’s motion to dismiss counts for due process, free speech, free exercise, the establishment clause, breach of contract, the New Jersey free exercise and enjoyment of religion clauses and the religion portion of the equal protection clause.

Jonathan Cohen of Apruzzese, McDermott, Mastro & Murphy in Liberty Corner, New Jersey, who represented the school district defendants, issued a statement on behalf of the school district. It said, “We were very pleased with the court’s decision to dismiss four out of the 10 counts contained in plaintiff Knox’s complaint. Now the case will proceed to discovery, and after discovery is complete, the defendant Union Township Board of Education will be in a position to file a motion for summary judgment to dismiss the remaining counts of the complaint.”

Demetrios Stratis of Ruta Soulios & Stratis in Fair Lawn, New Jersey, representing Knox, said the counts that were not dismissed by the judge were “the thrust of our case.” He said as a teacher, Knox had “dual agency—she’s an agent of the state, even in the lunchroom, but she’s also an individual,” but added that the remarks were made at home, on her own time, and therefore she was “not acting as an agent of the state” when she made them.

“As an individual, she certainly is entitled to do that. Just because she became a teacher, it doesn’t mean she gives that up,” Stratis said.

IMAGE: US Federal District Judge Kevin McNulty, Martin Luther King Courthouse, Newark, NJ. Carmen Natale

For more on this story go to: http://www.njlawjournal.com/id=1202718788344/Suit-Over-Teachers-AntiGay-Facebook-Comments-Can-Proceed#ixzz3Sm4rY0Af