Federal Court Raps NYC Schools for Due Process Violation

U.S. District Judge Jack Weinstein has denied summary judgment to the New York City school system on a claim by a middle-school teacher that her constitutional rights were violated when she was suspended with pay from classroom teaching and suffered collateral consequences after parents complained to her principal that vulgar terminology was used in an HIV/AIDS education class that she conducted for middle school students. Judge Weinstein found in his May 20 ruling in Kramer v. New York City Board of Education, No. 09-CV-1167 (S.D.N.Y.), that no rule promulgated by the Board of Education had any clear application to the incident in question, that the rule initially cited against the teacher was clearly inapplicable on the facts, and that the rule subsequently cited in a letter to her by her principal also did not apply to the situation.

Perhaps most significantly, Judge Weinstein found that the most basic requirement of substantive due process, that a public employee not suffer adverse consequences under vague rules that would not inform a reasonably intelligent individual of what conduct is prohibited, had been violated in the teacher’s case. Furthermore, it appeared to the court that the lesson the teacher had presented was consistent with the school’s HIV/AIDS education curriculum, which actually encouraged teachers to "brainstorm" with students and to let students use vernacular language as part of the lesson to ensure that they understood the concepts necessary to appreciate which activities present risks of HIV transmission.

Weinstein noted that the language found to have been used during this lesson can also be found widely used in popular culture, by respected public figures, and in some cases even in books that are used in the school curriculum. He cited, ironically, a NY City Schools publication on recommended reading for middle school students that specifically listed some books containing the kind of language – even some of the disputed words – that were charged against the teacher in this case.

On the other hand, Weinstein granted the defendants’ summary judgment motion on all the other legal claims in the complaint, including First Amendment claims. The area of First Amendment protection for public school teacher classroom speech is in quite a bit of turmoil, especially since the Supreme Court’s decision in Garcetti v. Cebalos, taking the position that public employee speech within the scope of their employment duties is not protected by the 1^st Amendment because it is "official speech" subject to the control of the public employer. While the Supreme Court suggested in Garcetti that its analysis might not apply in the education context, due to academic freedom concerns, lower courts have been divided, both prior to and subsequent to Garcetti, about the degree of leeway that teachers in public institutions should have to speak in ways that their employers might not approve. While Weinstein found that traditionally public schools have been allowed to forbid speech that the authorities consider lewd or too sexually explicit, it was really not necessary to pursue the 1^st Amendment line since such a clear violation of due process was found in this case.

Actually, my reaction to the facts as recounted by Judge Weinstein is to condemn the school principal for failing to back up a senior tenured faculty member who had been conducting essentially the same HIV/AIDS education classes with her middle school students for many, many years. On this particular occasion, evidently, some students either mentioned the class to parents, or perhaps an inquisitive parent looked at his or her child’s notebook and saw the sexually explicit words written down. In any event, parents complained, and rather than making a reasonable inquiry and then backing up the teacher, the principal, perhaps afraid of a controversy among the parents or in the press, suspended the teacher from classroom work pending an investigation and, when the investigation showed that the words in question had been used, maintained the suspension for many months, affecting the teacher’s annual evaluation and eligibility for extra assignments that she had received in the past and that had become an important part of her income.

The principal made a knee-jerk reaction to avoid controversy, but in doing so trampled on the constitutional rights of a tenured public employee and has now earned the board of education a public shaming by Judge Weinstein and liability for damages to the teacher. Although the judge dismissed the teacher’s supplementary state law claim of negligent supervision for failing adequately to instruct the principal about respecting the due process rights of teachers for technical reasons of tort law, in the broader sense it seems clear to me from reading this opinion that the Education Department has inadequately trained at least this principal and possibly principals across the board in dealing with this sensitive issue.