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.