School Had Cause to Fire Porn-Viewing Teacher

5/5/2011 8:50:00 AM, Joe Celentino
     CHICAGO (CN) - A Wisconsin high school teacher who looked at porn for about a minute on a school computer failed to convince the 7th Circuit that he was fired over union activities.

     Robert Zellner worked as a biology teacher for nearly 11 years in the Cedarburg School District, and also served as union president of the Cedarburg Education Association.
     On Sunday in November 2005, while Zellner was at school working on a class plan, he disengaged the "safe search" filter on a Google image search and typed in "blonde." The search produced 20 pornographic thumbnails and links to more images. Zellner then viewed the next page of results, and after that clicked a link from a site that advertised "more of these," producing another 20 thumbnail images. Pornographic images remained on Zellner's screen for a total of 67 seconds.
     The school's technology director, who had been monitoring Zellner's computer activity since August, soon discovered the prurient search and informed her supervisor, Daryl Herrick.
     Confronted with the computer history, Zellner admitted to accessing the images and confirmed that he had performed similar searches five or six times over the past several years.
     The district's internet-usage policy, which Zellner had signed, prevents "accessing, sending or displaying offensive messages, pictures or child pornography" on school computers, but Zellner declined to resign and instead opted to face a public disciplinary hearing before the school board.
     At the hearing Zellner did not deny the charges or offer an excuse for his actions, though his complaint states that he ran the search to report to the IT department what students could access via school computers.
     The school board voted to fire Zellner and later refused to reinstate him based upon the ruling of an arbitrator who heard Zellner's grievance.
     After a Wisconsin state court then reversed the arbitrator's judgment, and an appeals court affirmed, Zellner filed suit in federal court, alleging violations of his First and Fourth Amendment rights.
     A Wisconsin federal judge granted summary judgment for the district, finding that the school board hearing had satisfied Zellner's right to due process. The 7th Circuit affirmed on Friday.
     A three-judge panel rejected Zellner's claim that "but for" his union activities, he would not have been fired.
     "It is undisputed that the search violated the District's Policy, that Zellner admitted that he performed the search, and that he knew he violated the Policy," Judge Terence Evans wrote for the court. "Accordingly, the School Board has a legitimate, non-discriminatory reason to terminate Zellner's employment."
     Zellner may appeal the case to the Supreme Court. Attachment