Problem

A professor at the United States Merchant Marine Academy in Kings Point, NY faces dismissal for joking about the Colorado movie theater shootings in front of his students, including one whose father was among the victims. The professor had just turned down the lights to show the documentary and was preparing to step out for a few minutes when he made the remark. According to reports, the professor said, “If someone with orange hair appears in the corner of the room, run for the exit."

The institution's academic dean, called the joke "notoriously disgraceful conduct" and recommended that Sullivan be fired. Sullivan was immediately placed on paid administrative leave after the administration learned of the incident. According to an internal document, Sullivan was informed on Aug. 10 that he had 10 days to contest his dismissal.The document also said Sullivan had been unaware that the father of one of his students was killed in the shootings. It said he immediately apologized to the student after being told of his loss. He also offered apologies to the entire class and the administration. But the document also said the professor should have been aware of the student's loss because the school had sent an email about it on July 25 and the student had been absent for a few days. It said Sullivan also had given two other students permission to miss class to attend a funeral in Colorado.

The Merchant Marine Academy is a civilian academy is run by the U.S. Transportation Department and has about 1,000 students who are trained for careers in the marine trade. Its faculty members are federal employees.


Relevant Standards:

12.04 Separation for Cause:

Separations for cause shall conform to the procedures required by law, rules, regulations, this order, and the negotiated provisions of the collective bargaining agreement. If a faculty member receives a proposal to remove him/her for cause, the faculty member may request a review before the Faculty Personnel Committee. (See section 5.04 of this order.) The faculty member must request such a review, in writing, not later than five calendar days after receipt of the removal proposal. The request must be made to the Assistant Superintendent for Academic Affairs. Use of this review procedure does not preclude the faculty member from following the procedures in statute or collective bargaining agreement for providing an answer to the removal proposal to the deciding official. Committee recommendations concerning removal shall be submitted in writing to the Assistant Superintendent for Academic Affairs within twelve working days of receipt of the faculty member's request for a review.

Section 13. Laws and Regulations Applicable to Faculty Members:

Section 1308(d) of the Merchant Marine Act of 1936, as amended, U.S.C. 1295g (d)) provides that faculty members shall be subject to laws of general applicability to civilian employees of the United States except as specifically authorized by section 1308(d) or other provisions of law. Therefore, faculty members are subject to the provisions of this order and to all other Maritime Administration and Department of Transportation orders pertaining to civilian employees unless specifically excluded from coverage. Thus, faculty members are subject to civil service provisions which pertain to such matters as veteran preference, performance ratings, annual and sick leave, health benefits, retirement, life insurance and incentive awards.

Section 14. Faculty Handbook:

There is hereby authorized to be established a Faculty Handbook in accordance with Maritline Administrative Order 200-1. The handbook may contain information relating to approved policies, procedures, and regulations applicable tq faculty members as defined in this order. In addition, rules for the conduct of faculty meetings may be included. However, the handbook shall be in accord with the provisions of this order and other applicable regulations and shall not be used as a means for establishing policy.












Parker v. Levy, 417 U.S. 733 (1974).

Levy was in the Army. He made a number of statements to other soldiers about the Vietnam War and suggested that soldiers refuse orders to go to Vietnam. He also referred to Special Forces soldiers as "liars and thieves," "killers of peasants," and "murderers of women and children. Levy was court-martialed and sentenced to 3 years in military prison. He appealed. Levy argued that he had a constitutional right to free speech under the First Amendment and that the Statutes he was convicted under (U.C.M.J. 90, 133, 134) were unconstitutional. Those three sections prohibit "willful disobedience a lawful command," "conduct unbecoming an officer and a gentleman," and "all disorders and neglects to the prejudice of good order and discipline in the armed forces" respectively. Levy also argued that the UCMJ provisions were too vague, and that was a violation of the Due Process Clause of the Fifth Amendment.

The US Supreme Court upheld the conviction. The Court found that the UCMJ provisions were not too vague as to be a violation of due process. The Court noted that while the words in the provisions were vague, they had been narrowed by the courts and many specific examples were available. Plus, Levy should have known that telling solders to disobey orders was a violation of military law. The Court found that the UCMJ provisions were not a violation of the First Amendment. The Court recognized that while soldiers "are not excluded from First Amendment protection, the fundamental necessity for obedience, and the consequent necessity for discipline, may render permissible within the military that which would be constitutionally impermissible outside it."