Matter of Devany, Comm. of Education, Decision 14,747
Many public employers have adopted policies dealing with sexual harassment. The Devany case describes some administrative procedures that might be experienced in processing sexual harassment complaints under such an employer's policy. Here a parent challenged the content of classroom instruction by a teacher in accordance with administrative procedures established by the Massapequa Union Free School District Board of Education.
Eugene P. Devany alleging that his daughter Sara had suffered sexual harassment when the teacher encouraged to her students "to write and speak foul and vulgar terms and descriptions of illegal sexual activities" in the course of conducting a class in sex education.
School administrators investigated Devany's complaint, including interviewing the teacher, a teaching assistant who was present in the classroom when the discussion took place, various administrators and Devany. The superintendent concluded that the district's sexual harassment policy had not been violated. Devany appealed to the school board as provided by the policy.
After considering the results of the administrative investigation of Devany's allegations and "a thorough legal analysis of the district's sexual harassment policy and the applicable law," the school board concluded that the teacher's conduct did not constitute sexual harassment. In the words of the school board:
Although we disagree with the judgment exercised by the teacher - we find that no sexual harassment occurred - the acts in question, had an instructional purpose, were discussed in clinical terms, and this method of instruction was authorized by [the teacher's] supervisors.
The Board's decision also directed officials to "review the instructional techniques, and curriculum and make recommendations for such corrective measures as are necessary."
Devany appealed the Board's determination to the Commissioner of Education.
The Commissioner dismissed Devany's appeal on technical grounds: Devany had neglected to "join a necessary party" -- the teacher herself. However, said the Commissioner, even if he had not dismissed Devany's appeal on procedural grounds, he would have dismissed it on the merits. Why? Because, said the Commissioner, subdivisions 13 and 33 of Section 1709 of the Education Law gives a board of education broad powers concerning the superintendence, management, and control of a school district.
Accordingly, the Commissioner said that he would not substitute his judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable laws.
 Devany had also filed two complaints directly with the State Education Department's Teacher Discipline Unit, presumably seeking to have the teacher's license to teach suspended. The first such complaint concerned the underlying classroom incident; the second complained about the district's handling of the sexual harassment investigation and requested an investigation of the principal and the assistant superintendent. The Commissioner declined to consolidate these two complaints with Delaney's appeal, commenting that "an appeal before the Commissioner is not the proper forum to seek the suspension of a teacher's teaching certificate."