A tenured physical education educator [Petitioner] appealed certain actions by the Board of Education [Respondent] and its Superintendent [collectively “Respondents”] involving the Respondent’s Policy 4810, “Teaching About Controversial Issues”.*
In response to a formal complaint against Petitioner submitted by a student alleging Petitioner made derogatory remarks to students in violation of the Dignity for All Students Act (“Dignity Act”), Respondents commenced a Dignity Act investigation and placed Petitioner on paid administrative leave. Petitioner met with district representatives and responded to the allegations against him. Immediately following this meeting, Respondents:
1. Restored Petitioner from paid administrative leave; and
2. Issued a counseling memorandum to Petitioner advising him that "the investigation had concluded" and, “although a technical violation of [the Dignity Act] was not found' ... going forward, Petitioner should refrain from engaging in “‘debates’ and/or conversations about ‘controversial’ political and societal topics” that fell outside the scope of the physical education curriculum. The memorandum was added to Petitioner’s personnel file. Petitioner sent Respondents a “Letter of Counsel Rebuttal and Complaint” and ultimately appealed the Respondent's actions to the Commissioner of Education, alleging he "was wrongfully suspended and that the counseling memorandum constituted an impermissible reprimand imposed without the procedural protections of Education Law § 3020-a. Petitioner further alleged that Respondents discriminated against his religious beliefs in violation of Title VII of the Civil Rights Act of 1964 and that the restrictions imposed upon him by the counseling memorandum violate his First Amendment rights.
For relief, Petitioner sought the removal of the counseling memorandum and any mention of his suspension from his personnel file as well as a name-clearing hearing. Petitioner additionally sought unspecified relief “for neglect of duties in the form of remediation, training,” and prevention of any “future retaliation” against him.
After addressing several procedural issues, the Commissioner addressed the merits of Petitioner's appeal, holding:
1. Petitioner failed to prove that Respondent placed him on administrative leave for an unreasonable amount of time;
2. Citing Holt v Board of Educ., Webutuck Cent. Sch. Dist., et al.,* the Commissioner noted the Court of Appeals articulated a distinction between “admonitions to a teacher [that] are critical of performance” and “disciplinary determinations of a punitive nature.” The former, intended to address “relatively minor breach[es] of school policy,” may be imposed by management in its discretion while the latter may only be imposed following a hearing.
The Commissioner identified two primary factors to be considered in determining whether written criticism constitutes an impermissible reprimand:
(1) Whether the letter is directed towards an improvement in performance or a reprimand for prior misconduct; and
(2) The severity of the misconduct and the admonition/reprimand, citing Appeal of Rogers, 63 Ed Dept Rep, Decision No. 18,364 and Matter of Richardson, 24 id. 104, Decision No. 11,333.
The Commissioner found that the counseling memorandum constituted an administrative evaluation. The Commissioner further opined that the nature of the misconduct was relatively minor: Petitioner’s unnecessary interjection of his opinions—on topics including finances, politics, and government—into discussions that had no relationship to physical education class , noting that Respondents’ investigation indicated that these remarks did not rise to a violation of the Dignity Act.
Concluding that Respondents’ admonition to Petitioner, which was factual in nature, explained why Petitioner’s actions and statements were inconsistent with board policy and the district’s expectations, the Commissioner opined that "As such, there is no basis to expunge the counseling memorandum from [Petitioner’s] personnel file".
As to Petitioner's seeking a "name-clearing hearing", the Commissioner noted that Petitioner was not terminated and there is no evidence in the record that Respondents publicly made any defamatory or stigmatizing comments about Petitioner in connection with the matter.
Additionally, to the extent that Petitioner raised claims pursuant to the New York Freedom of Information Law and Open Meetings Law, the Commissioner explained that such allegations are outside the jurisdiction of the Commissioner in an Education Law §310 appeal.
* Policy 4810 provides that “[i]n the classroom, matters of a controversial nature shall be handled as they arise in the normal course of instruction and not introduced for their own sake. Such issues shall be neither sought nor avoided.” It further provides that “[w]hen presenting various positions on a controversial issue, the teacher shall take care to balance major views and to assure that as many sides of the issues as possible are presented in a fair manner, with no position being espoused by the teacher as the only one acceptable.”
** 52 NY2d 625.
Click HERE to access the Commissioner's decision posted on the Internet.