Will the termination of tenured teacher stand after an arbitrator found that he engaged in poor judgment exhibiting flirtatious behavior around his middle school female students?

No. An eighth grade physical education teacher was charged with various allegations concerning his conduct around female students and was summed up by the court as follows:

The evidence presented at the arbitration hearing establishes that petitioner, while an eighth-grade physical education teacher, initiated conversations with at least two of his female students asking them if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them,[1]and accepted the phone number of one student’s 23-year-old sister. Petitioner also told a student that her mother had called him “handsome” while passing him on the street. One student testified that petitioner’s conduct made her feel “uncomfortable,” and another said that his conduct “aggravated” her. Of the 12 specifications with which he was charged, the Hearing Officer dismissed five, including charges that he had engaged in similar behaviors in the 2010-2011 school year, that he actually contacted the sister whose telephone number he received, and that he told the students, “[M]y wife said I can look but I can’t touch.”

The arbitrator found his conduct to be in violation of his responsibilities as a teacher and ordered his dismissal. The Supreme Court agreed. However, on appeal to the Appellate Division, First Department, by a split decision, the Court found that the teacher”showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education.”

The Court went on to write that “Our decision today does not excuse petitioner’s behavior, but directs a less serious punishment. Should it continue, termination may well be in order in the future.”

The dissent found that the penalty of dismissal did not shock the conscience, the legal standard to overturn an arbitrator’s ruling and found that the teacher’s alleged “harmless banter” was the type of conduct specifically prohibited in Education Law 3020-a as conduct unbecoming a teacher.

IN RE TERRELL WILLIAMS, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents., 2016 NY Slip Op 06184.  899, 653954/13. Appellate Division of the Supreme Court of New York, First Department. Decided September 27, 2016.

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