Suspension upheld for improper remarks, e-mails and texts to student |
On Board Online • September 6, 2010
By Patricia H. Gould
Associate Counsel
A state appellate court has upheld a three-month suspension of a high school teacher who posted her romantic feelings for a 15-year-old student in a blog and repeatedly exchanged late night e-mails with the student that contained inappropriately personal content. The teacher made similar comments both in person and by “texting” him.
The teacher’s blog, or online diary, described her “salacious” thoughts about an unnamed person who she thought of kissing and “moving beyond the realm of fantasy” and the conflict she was experiencing for wanting more from the relationship. The student and his friends were able to access her blog, and it was apparent that some of her blog writings were in response to what the student had written on his own blog.
The teacher did not cease contacting the student until he reported her behavior to school administrators, who investigated and later confronted the teacher.
In City School District of the City of New York v. McGraham, a section 3020-a hearing officer found that the teacher’s blog writings were not misconduct in and of themselves, but they could be considered to show the teacher’s state of mind when she made other, contemporaneous contacts with the student, because writing on a public website did not carry any expectation of privacy. The teacher argued that she merely had an “intellectual” attraction to the student and that there was never any physical contact between them. But when the blog entries (e.g.: “I wanted to just let myself go, lean backwards and sink into him.”) were considered along with her conversations, texts and e-mails to the student, the hearing officer found that the teacher had communicated her intimate feelings for the student to him, which made him so uncomfortable he stopped going to her class. The hearing officer concluded the teacher was remorseful, sought treatment, and would not do it again, and a 90-day suspension was a significant penalty for this misconduct.
The district appealed, and a state Supreme Court overturned the penalty on the basis that the record did not support the conclusion the teacher would not engage in such misconduct again. The court said it was significant that the teacher did not seek therapy until she was confronted by investigators, and there was no evidence in the record as to the extent or success of that therapy. As such, the lower court held that a three-month suspension did not address the overwhelming public policy that students must be protected from teachers who cannot exercise the judgment of mature adults.
On further appeal, the Appellate Division, First Department disagreed, and held that such a suspension was not always contrary to public policy. While acknowledging New York’s strong public policy in preventing student/teacher relationships that threaten students’ well-being, the court said such a public policy is not necessarily violated by allowing an arbitrator to determine the appropriate penalty. Further, the court said, the 3020-a hearing officer here had condemned the teacher’s behavior, and his conclusion that the teacher was not likely to repeat her actions was an assessment of the teacher’s credibility, and the hearing officer was in a better position to assess that than was the lower court.
In particular, the appellate court said, the teacher’s on-line blog comments were merely “musings which she posted under an alias on a public website without informing the student that she had done so” and at best, the entries confirmed her “romantic” feelings for the student. The court said that it was just speculation that the teacher desired to commence a physical relationship with the student, and there was a rational basis for the hearing officer to conclude that the teacher was not a sexual predator incapable of respecting the boundaries that must exist between educators and their charges.
One justice dissented because McGraham’s communications, while not outright vulgar or sexually explicit, did very subtly demonstrate her sexual interest in a minor entrusted to her, and she should not be protected because of her subtlety. According to the dissent, the evidence indicated that the teacher was not sufficiently rehabilitated to be trusted with the education of students and the penalty imposed failed to address the state’s public policy interests in protecting students.
Editor’s Note: News reports indicate the teacher resigned last year to become a professional poker player.