Must a teacher, who was ordered to undergo a psychological assessment that he was free from addiction to internet pornography and not a danger to students, fully comply with the order before reinstatement?

Yes. Bruce Campbell was a 15 year, tenured teacher at Newtown High School the High School for Arts & Business. In September 2006, a school psychologist at Arts & Business High School, Simon Kopelnitsky, while searching for his documents on a computer shared by Arts & Business High School staff members in one of the guidance counseling offices noticed that “inappropriate” and “pornographic website links were listed under “recent documents,” indicating that the computer had been used to gain access to those internet sites.

He reported this finding to the assistant school principal, and in response the Office of Special Investigation began an investigation into whether there was pornographic material on the computer. OSI investigators removed the computer’s hard drive, and investigator/database programmer Giovanni Perez, after performing a forensic examination of it, found that there was inappropriate or pornographic material on it, which was “possibly downloaded under two user identifications, namely, Campbell’s, and that of school psychologist Stacy Epstein.

Under Campbell’s user id, Perez found that two pictures of a young Asian woman in a bikini bathing suit had been downloaded on June 1 and June 2, 2006. Under Epstein’s user id, more than 30 pictures of naked or partially clothed women, some engaged in sexual acts, were downloaded into temporary internet folders on March 24 and March 31, 2006.

OSI investigator Benjamin Francis interviewed Campbell in January 2007, and showed him the two pictures that Perez had located on the computer under his user id . Campbell acknowledged that he had seen those pictures and explained that he found them while doing research to find out whether, as he was informed by two male students at Newtown High School, two female students were advertising sexual services on a website.

He would not provide the names of the students to the investigator. After interviewing Campbell, and receiving statements from staff members present at the time that Kopelnitsky discovered the website links on the subject computer, Francis concluded that Campbell had violated the Board’s internet use policy “by accessing pornographic material” on the subject computer.

Following the OSI investigation, the Board commenced a disciplinary proceeding , pursuant to Education Law § 3020-a.

A hearing on the charges was held before Arbitrator James Darby.

After considering all the evidence, Darby found that the Board failed to demonstrate by a preponderance of the evidence that Campbell was guilty of the charges presented in Specifications 1 and 2, which included viewing and downloading pornographic photographs on March 24 and March 31, 2006.

In so finding, the hearing officer noted that the only evidence connecting Campbell to the allegations in Specifications 1 and 2 was that he was at the school on the dates in question. Evidence showed that the pictures had been accessed under Epstein’s id, and Campbell testified that he did not ever use her id and did not know what it was. Perez testified that those pictures were not downloaded, and possibly were pop-ups not intentionally viewed or accessed by the computer user. Evidence also showed that both March 24 and 31 were Fridays, when Campbell worked out of the principal’s office, and not in Room102B.

Darby then concluded that Campbell was guilty of the charges presented in Specifications 3 and 4, that is, viewing and downloading two “inappropriate” photographs onto the school computer on June 1 and 2, 2006. Campbell does not deny that he viewed and downloaded two pictures, and viewed hundreds of other similar pictures, as part of his own investigation into allegations that female students were selling sexual services on the internet. Although Campbell claimed that he was doing this to help students, the hearing officer found his explanation that he was conducting his own investigation unconvincing.

In determining what punishment was appropriate , the hearing officer considered, among other things, Campbell’s 15-year tenure without any prior discipline, that only two of the four charges were sustained, and the lack of information about the likelihood of a reoccurrence , and concluded that Campbell “shall be suspended without pay for the remainder of the 2008-2009 school year, or 90 days, whichever is longer;” that Campbell’s internet use shall be monitored by the Board during the 2009-2010 school year, and any substantiated allegations that he violated the Internet Use Policy will result in his termination, subject to his CPLR § 3020-a rights; and that Campbell’s return to work shall be conditioned upon his submitting to the Department’s Office of Legal Services a written assessment from a licensed therapist.

The assessment shall indicate that the therapist has read this Opinion and Award, has evaluated Campbell, and that he or she concludes that Campbell is not addicted to Internet pornography and that his viewing of Internet pornography, as described herein, will not adversely affect his ability to teach and will not place students at risk.

The DOE, seeking Campbell’s termination and not contesting Darby’s finding, appealed the 3020-a penalty and argued that it exceeded the arbitrator’s authority.

Justice Joan Madden disagreed and confirmed the award in April 2010.

Campbell attempted to comply with Darby’s order and sought reinstatement after he obtained a therapist’s evaluation. The DOE rejected the evaluation since, it claimed the evaluation only stated that in his report that he could not determine whether Campbell was addicted to pornography, characterizing such determination as “nearly impossible,” and that he was only able to state that there “is no evidence that Campbell has an internet addiction.” In addition, the therapist’s conclusion that viewing internet pornography would not put students at risk or affect his ability to teach appears to be based solely on Campbell’s lack of recorded history of prior inappropriate behavior (a fact that was known by Darby) and the “lack of information” indicating that Campbell has an impairment that would interfere with his ability to teach.

Campbell sought reinstatement from Court. Justice Madden, agreeing with the DOE’s interpretation of the therapist’s evaluation, denied Campbell’s application.

In the Matter of the Application of THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and JOEL KLEIN, as Chancellor of the Board of Education of the City of New York, Petitioners, -against – BRUCE CAMPBELL, Respondent. Index No. 400780/09, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 32018U; 2011 N.Y. Misc. LEXIS 3604, July 13, 2011, Decided July 19, 2011, Filed.

Observation: It appears that Campbell is caught in a classic bind. The order that he be determined not to be addicted to internet pornography and that he is not a danger to children is a tall order for a therapist to opine since the basis of any therapist’s opinion would be the self-reporting of the patient. While Madden has confirmed Campbell’s order denying his termination she has made reinstatement an extremely difficult hurdle.

Does an arbitrator’s ruling in a 3020-a which suspends a librarian for inappropriately touching students and taking an unauthorized trip “shock the conscience?”

Yes. Christopher Asch, an openly gay librarian at Stuyvesant High School was removed from his school after a student complained about inappropriate touching and whispering. The matter was well covered in the media.

Upon further investigation Asch was also accused of taking students to “Quiz Bowl” in Boston on an unauthorized trip.

At the arbitration hearing before David Hyland, students and faculty testified as to Asch’s exemplary work at Stuyvesant and that there was a conspiracy, brought upon by at least one student, to spread rumors and make false accusations. One of these rumors was that Asch was a member of NAMBLA, the North American Man Boy Love Association and that he inappropriately touched students arms and whispered into their ears. Asch explained the source of the rumors and testified that the touching and whispering were done to get students’ attention in a quiet place. A female librarian was not subject to such scrutiny despite the fact that she used the same practice.

Additionally the Quiz Show trip was an unofficial club trip which did not require permission slips. A student who lied to his parents and went to Boston on his own was not seen by Asch until 10 PM. Asch believed the student’s lies and had no reason to question his appearance as he was over 18 at the time.

Hyland found “Asch either did not understand or ignored appropriate boundaries as they relate to touching students, even to calm or quiet them when students become unruly or loud.” He suspended Asch for six months without pay and ordered that he attend training.

Justice Manuel Mendez held that the penalty “shocked the conscience of the Court” and lifted the suspension, ordered back pay and removed the training requirement imposed by Hyland.

Analysis:  There at least two problems in Mendez’s decision which might cause the DOE to appeal. The first has to do with a procedural matter. Appeals from 3020-a hearings to Supreme Court are brought by CPLR 7511 which has a ten period in which the petition must be filed and served. The DOE moved to dismiss the petition as untimely and the Court ruled that an extra day was allowed since the last day to file fell on a Sunday. While that does extend the time to file the DOE had made a motion to dismiss and did not fully answer Asch’s petition. The Court, nonetheless, took the DOE’s motion as its answer without giving the DOE an opportunity to respond to Asch’s allegation that the penalty shocked the conscience. Many arbitrators, even in the face of unsupported charges still make a finding. Perhaps this decision will send a message to other arbitrators to dismiss cases that should be dismissed.

In the Matter of Christopher Asche, Petitioner, against The New York City Board/ Department of Education, Respondents, 108528/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 21224; 2011 N.Y. Misc. LEXIS 3104, June 28, 2011, Decided

Can a 3020-a decision be reversed as too lenient?

Yes. Douglas Coleman, a 25 year tenured Social Studies teacher employed by the Dundee Central School District was charged with various specifications characterized as conduct unbecoming a teacher and insubordination. Dundee alleged that Coleman had given an exam in one of his classes which, among other things, “contain[ed] inappropriate and suggestive vocabulary words including “yu dick”, “grandma dick” and “Mrs. Dick” …. The second group of charges is that one of the students in the aforementioned class was a student with a disability of high-functioning Asperger’s Syndrome, and on her test, Coleman had captioned two cartoon figures of aliens, with the student’s name by one figure and her personal tutor’s name by the other . The third group of charges is that in September of 2007, Coleman attempted to bypass the established District procedure with respect to the utilization of movies within his class” when he showed the movie, “Attica.”

Coleman had been given counseling memos when these incidents occurred and the hearing officer, having found that these incidents were not repeated, dismissed the charges since the school district had already decided how to deal with these infractions. The hearing officer, based on other charges then decided to suspend Coleman for 6 months but required that the District continue to pay for his medical insurance. The District appealed to State Supreme Court.

Justice W. Patrick Falvey of Yates County Supreme Court ruled that the suspension with medical insurance was not valid under 3020-a since the statute contemplated suspensions with no payments. Additionally it was wrong for the hearing officer to dismiss the charges as the District did not waive its right to serve charges where counseling memos were previously utilized.

Justice Falvey remitted the matter back to the District to reconsider the dismissed charges and penalty.

Upon remand the hearing officer dismissed many of the charges again but this time found Coleman guilty of a few of the formally dismissed charges. He imposed the same penalty.

Justice Falvey found that ” the Hearing Officer’s decision regarding penalty lacks a rational basis, due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda, before he would consider Dundee’s request for a penalty.”

Coleman 1, In the Matter of the Application of the Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman Respondent, 2010-0248,  SUPREME COURT OF NEW YORK, YATES COUNTY, 2010 NY Slip Op 51684U; 29 Misc. 3d 1204A; 2010 N.Y. Misc. LEXIS 4689

 

Coleman II, Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman, Respondent, 2011-0011, SUPREME COURT OF NEW YORK, YATES COUNTY, 2011 NY Slip Op 21157; 2011 N.Y. Misc. LEXIS 1999,  April 29, 2011, Decided

Is a claim for hostile work environment cognizable when it is based on student to teacher hostility?

Yes. Eva Berger-Rothberg, a special education teacher with over 18 years’ experience, was assigned to MS 226Q in the 2005-2006 school year. Her class assignment can only be described as a “class from hell.”

From her complaint Berger-Rothberg was subjected to an escalating pattern of abuse from her students based on her gender and religion. Some students would refer to her as a “fucking Jew,” “Jew bastard,” and “white Jewish bitch.” Her pleas for help were generally ignored and after an incident in which one of her students rubbed his penis against her and another put his tongue in her ear she used her cell phone and called police. The principal put a letter in her file threatening her with termination if she continued to use her cell phone in class which was against school policy.

Berger-Rothberrg received a “U”-rating for the school year despite the fact that she had been only observed once. She reluctantly retired and file a discrimination suit.

Federal District Court Judge Roslynn R. Mauskopf, in rejecting the DOE’s attempt to dismiss Berger-Rothberg’s claims found sufficient evidence of workplace hostility to go forward to trial. While the Judge could find no specific case dealing with student to teacher hostility, the alleged refusal of MS 226Q administration officials to deal with the situation and indirectly enabling it made Berger-Rothberg’s claims ripe for a jury trial.

Judge Mauskopf found that “In order to establish a retaliatory hostile work environment, a plaintiff must satisfy the same standard used to evaluate conventional hostile work environment claims by showing that the incidents of harassment following complaints were sufficiently continuous and severe to have altered the conditions of employment.” Berger-Rothberg, at least at this stage, has established such a case.

EVA BERGER-ROTHBERG, Plaintiff, – against – CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants, 07-CV-1878, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, 2011 U.S. Dist. LEXIS 29922, March 22, 2011.