| City School Dist. of the City of N.Y. v McGraham |
| 2010 NY Slip Op 06065 [75 AD3d 445] |
| July 13, 2010 |
| Appellate Division, First Department |
| City School District of the City of New York,Respondent, v Colleen McGraham, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Cheryl Payer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered January 13,2009, in a proceeding pursuant to Education Law § 3020-a (5) and CPLR 7511 to vacatean impartial hearing officer's determination, dated February 16, 2007, which found thatrespondent teacher was guilty of serious misconduct unbecoming a person in the position ofteacher, and imposing a penalty of 90 days suspension without pay and reassignment, grantingthe petition and remanding the matter for imposition of a new penalty, reversed, on the law,without costs, the award reinstated and the petition dismissed.
Respondent, a 36-year-old tenured high school teacher considered by the school's principalto be hard-working and conscientious, taught honors English to M.S., a 15-year-old boy who wasknown as one of the brightest and most talented students in the school. Respondent also servedas an advisor to a poetry club in which M.S. was active. In order to facilitate after-hourscommunication concerning the poetry group, respondent provided her personal e-mail address toM.S. and another student. Thereafter, respondent and M.S. embarked on a series of frequentelectronic communications, via e-mail and instant message, in which the two discussedliterature, writing and movies. Respondent lent movies to M.S. that she thought he would findinteresting, such as the documentary Fahrenheit 9/11. She also gave him a copy of the Catcher inthe Rye.
In early 2005, respondent agreed to serve as faculty advisor to a theater group formed byM.S. and several other students. The group met frequently and, consequently, respondent'scontact with M.S. increased substantially. They regularly communicated electronically afterschool hours, often after midnight. The on-line conversations included personal matters affectingM.S., including issues he was having with his mother. Respondent continued to lend M.S.movies she thought he might find interesting, including Harold and Maude, a 1972 filmdepicting a relationship between a teenage boy and an older woman.
In May 2005, respondent felt compelled to discuss with M.S. the nature of their relationship.She claims this was because of several incidents, which included M.S. posting on his personalblog: "you crazy woman you, look what you do to my heart?" She also became concerned thatonce, during theater rehearsal, M.S. called her "Colleen my darling" and that [*2]another time during rehearsal he was standing particularly close toher. Respondent claims that she told M.S. during the discussion that their relationship had to bebetter defined. M.S. recalls respondent telling him that the lines in their relationship werebecoming blurred and that she was "confused."
One month later, respondent and M.S. engaged in an instant message chat in which,according to M.S., respondent asked him whether he thought it was "crazy" or inappropriate forher to "think that there was something between us." Respondent, on the other hand, claims thatafter M.S. stated he was joking in the blog postings which alluded to feelings he had for her, shemerely suggested that she must be "crazy" for thinking that M.S. was being sincere. This was thelast electronic conversation between respondent and M.S., who ignored further entreaties byrespondent to communicate.
On the last day of school in 2005, M.S. told another teacher about his communications withrespondent. The teacher encouraged M.S. to file a report with the school's principal, which hedid. The principal referred the matter to the Office of the Special Commissioner of Investigation,which opened an investigation. That night, respondent, unaware of the investigation, sent ane-mail to M.S., in which she stated that:
"I am not sure how we got to this place where we are not talking to each other. I thinkvarious feelings of hurt, fear, loss, anger etc. Powerful emotions that can make people act crazyeven when they don't intend to . . .
"I want you to know I tried so hard to handle things in the right way, and feel I failedmiserably. Constantly telling myself one thing, and at moments being overridden by emotion.
"Maybe you can understand, take pity and forgive. I know I haven't dealt very well with thissituation, due to several reasons. One is, in one way I never in a million years would havethought I would have found myself in this situation, and I did not know how to deal with what Ifelt. In another way it is a situation I haven't dealt with in 10 years, so maybe I am rusty orsomething. But obviously the particulars make this unique and complex, certainly for me. I hopethis is not too cryptic.
"I hope at some point we will be able to talk and understand each other better. You havemeant too much to me for this to end 'in silence and tears,' as the Byron poem says. But if youdon't want to talk to me, I will do my best to understand. Know that my intention was never tohurt you, and I am sure that you as well did not intend the reverse. I don't know how people canget so far away from what they intend, maybe partly lack of communication and the mix ofemotions. But I hope you know I am truly sorry."
In response to this e-mail, M.S.'s mother and the assigned investigator composed and sent[*3]an e-mail to respondent, purporting to be from M.S., whichstated that M.S. was "confused" and suggested that he had similar emotions as respondentconcerning their relationship. Respondent replied later that day by e-mail, stating that:
"I definitely relate to the chaotic mess in the head. I haven't meant to confuse the hell out ofyou. I just think the situation makes it incredibly confusing. I think we have both been afraid ofbeing embarrassed. I think we have both been afraid of a lot of things. I feel like we have beendoing this dance around each other since practically the beginning of the year.
"Because we have both been confused I have wanted us to talk. But that seems to createproblems for both of us. When I have tried to talk to you, you seem to run a bit in the oppositedirection. And my nervousness leads me to maybe not be entirely forthright. There is so much Iwould like to tell you, to discuss with you. But even now writing this, there is fear. You, I amsure, understand the risks involved for me. But you have no idea how happy it makes me to hearfrom you. And as far as where I am standing, there is only one place I would like to be standing.God, help me! So, I guess we should try to talk. I have often thought of the idea of talking overtea or coffee or the beach or something, I don't know how. I just didn't know how insane the ideawas." The next day, respondent sent two additional e-mails to M.S. imploring him to talk so theycould sort out their feelings.
The investigator confronted respondent with her various e-mails and instant messages onJune 30, 2005. During the interview, respondent admitted to the communications andacknowledged the inappropriateness of her actions, which she attributed to an "intellectualattraction" to M.S. that never resulted in physical contact. Shortly thereafter, respondent begantherapy.
In early July 2005, M.S. discovered postings made by respondent to an on-line journal,under an alias. The entries for May and June 2005 consistently discussed respondent's strongfeelings for an unidentified male. One entry described respondent and the person "standing. . . so close [to each other] I could feel the heat from his body radiate to me. Iwanted to just let myself go, lean backwards and sink into him." Another talked about her desireto be "kissing him." Yet another stated that her thoughts regarding the person that day "were of asalacious nature." The vast majority of the postings, however, described the deep emotional painrespondent was experiencing from the person's decision to cease communicating with her.
In December 2005, after the investigation was concluded with a recommendation thatrespondent be terminated, petitioner filed charges against respondent, supported by fivespecifications. The first specification cited to each of the entries posted by respondent in theon-line diary. The second referred to respondent's statement to M.S. in May 2005 that the lines intheir relationship were becoming blurred and the third specification was based on respondent'sasking M.S. in June 2005 whether he thought it was "crazy" or inappropriate for her to "thinkthat there was something between us." The fourth and fifth specifications concerned the e-mails[*4]sent by respondent to M.S. on June 23 and June 24, 2005,respectively, in which she implored him to get together for a talk about their feelings towardseach other. The hearing officer granted respondent's motion to strike the first charge, stating thatthe on-line journal was not intended for M.S.'s consumption; however, the ruling expresslyprovided that the entries could be used for the limited purpose of illuminating respondent's stateof mind when making the communications that supported the remaining charges.
Respondent was found guilty of specifications three, four and five, the hearing officer havingfound that by making each communication respondent had placed M.S. in an uncomfortableposition and had acted in a fashion unbecoming of a person in her position. The secondspecification was dismissed based on the fact that M.S. continued to communicate withrespondent after she told him that their relationship had become "blurred." Describingrespondent's behavior as "serious" and the type that "tends to destroy the teacher/studentrelationship," the hearing officer stated that it called for a "significant" penalty. In fashioning thepenalty, he took note of respondent's remorse when confronted by the investigator and that sheceased all communications with M.S. at that time and shut down her on-line diary. The hearingofficer credited respondent's testimony that she gained a valuable lesson regarding theimportance of appropriate student-teacher relationships and that she had sought therapy to dealwith the emotional issues underlying her behavior. Based on his belief that respondent would notallow such a situation to occur again, he opted not to terminate her, but rather to suspend herwithout pay for 90 days, and to have her reassigned to a different school.
Petitioner commenced this proceeding, seeking an order vacating or modifying thearbitration award. Petitioner alleged that the dismissal of the second specification was "illogicaland irrational" because the communication alleged therein was inappropriate, whether or not itmade M.S. feel uncomfortable. It further contended that the penalty was inconsistent with thestate's strong public policy interest in maintaining a safe environment in the schools. Petitionerasserted that the hearing officer's conclusion that respondent would not repeat her behavior wasirrational.
Supreme Court granted the petition. The court acknowledged that the standard of reviewmandated by Education Law § 3020-a is that of CPLR article 75, which provides that anarbitration award may only be vacated on a showing of "misconduct, bias, excess of power orprocedural defects" (Austin v Board of Educ. of City School Dist. of City of N.Y., 280AD2d 365, 365 [2001]; see CPLR 7511 [b] [1]). However, following recent precedentfrom this Department, the court applied a "hybrid" standard which incorporated the arbitrary andcapricious test embodied in CPLR article 78. Utilizing this standard, the court concluded that"the penalty imposed by the arbitrator of a mere 90 day suspension violates a strong publicpolicy to protect children and is accordingly without a rational basis." The court further statedthat "[t]he arbitrator's observation regarding the inappropriateness of placing a child in a positionof a consenting adult is at the heart of why the penalty of a three month suspension is not rationaland does not serve the public policy of protecting children. The arbitrator seems to have beenimpressed by the fact that the child had gone to college and had 'moved on with his life. . .' as well as that there had not been any physical contact between Ms. McGrahamand her student and that the teacher had not actually asked MS out on a date. But as was notedby Justice Acosta in City School Dist. of City of N.Y. v Hershkowitz (7 Misc 3d 1012[A] [2005]) . . . it is irrational to use a student's resolve in the face of a teacher'simproper and persistent advances, to minimize the teacher's improper conduct. Furthermore, inHershkowitz, as is the case here, the arbitrator has 'failed to appreciate the harm thatrespondent's behavior may have on a child, both presently and in the future, by [respondent's]inappropriate conduct, even if [respondent] did not 'cross the line' and have physical contact with[the student]. (id.)"
Respondent does not question that Supreme Court applied the correct standard. Indeed,while CPLR 7511 is dictated by Education Law § 3020-a to be the proper standard ofreview, this Court has held that "where the parties have submitted to compulsory arbitration,judicial scrutiny is stricter than that for a determination rendered where the parties havesubmitted to voluntary arbitration" (Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d563, 567 [2008]). Because the arbitration at issue was compulsory, "[t]he determinationmust be in accord with due process and supported by adequate evidence, and must also berational and satisfy the arbitrary and capricious standards of CPLR article 78" (id.).
Applying this standard, we discern no basis upon which the court should have disturbed thehearing officer's determination. Under the circumstances of this case, we may not vacate on theground that it is contrary to public policy. It is beyond question that, in the broadest sense of theterm, there is a strong public policy in preventing student/teacher relationships that, whether of asexual nature or not, threaten students' well-being. In upsetting an arbitral award on public policygrounds, however, more than a general societal concern must be at issue. Rather, the publicpolicy exception applies only in " 'cases in which public policy considerations, embodied instatute or decisional law, prohibit, in an absolute sense, particular matters being decidedor certain relief being granted by an arbitrator' " (Matter of New York City Tr. Auth. vTransport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 7 [2002], quotingMatter of Sprinzen [Nomberg], 46 NY2d 623, 631 [1979]). Moreover, "courts must beable to examine an arbitration . . . award on its face, without engaging in extendedfactfinding or legal analysis, and conclude that public policy precludes its enforcement"(Sprinzen, 46 NY2d at 631).
Transport Workers
involved two arbitral decisions arising out of separate accidents, onecaused by the negligence of a train operator, another by the negligence of a bus operator whichresulted in a pedestrian being injured. In both cases, the arbitrator declined to dismiss thetransportation workers, instead demoting one worker for six months and docking him six weeks'pay, and docking the other over four months' pay and effectively placing him on probation. Thepublic authority in each case challenged the awards, relying on Public Authorities Law §1204 (15), which grants to the authorities at issue the power "[t]o exercise all requisite andnecessary authority to manage, control and direct the maintenance and operation of transitfacilities . . . for the convenience and safety of the public." The Court of Appealsrejected this position, finding that "[t]he legislative authority to 'manage, control and direct' theoperation of New York City's public transportation system for the 'convenience and safety of thepublic' does not translate into a statutory prohibition against some relinquishment to arbitratorsof the final say in safety matters when they arise in the context of employee discipline" (99NY2d at 9). Nor [*5]did the Court find that such authority, "inany direct, let alone absolute, sense set forth requirements or standards for thedisciplining of employees violating safety rules" (99 NY2d at 12).Here, in claiming that the award violates public policy, petitioner points to article 10 of theFamily Court Act and Social Services Law § 384-a. These are both statutory schemeswhich expressly recognize the paramount importance of the safety and welfare of children.However, they do not in any way govern school disciplinary proceedings, much less mandate thetype of penalty which is appropriate in such proceedings. Indeed, the public policy at issue hereis no different than the equally important public policy of protecting the physical safety of theriders of public transportation which was at issue in Transport Workers, and which wasrejected by the Court of Appeals as forming the basis for the overturning of the arbitrator'sawards in that case. We recognize that this conclusion appears to be directly at odds with theThird Department's decision in Matterof Binghamton City School Dist. (Peacock) (33 AD3d 1074 [2006], appealdismissed 8 NY3d 840 [2007]) and the Second Department's decision in Matter of Boardof Educ. of E. Hampton Union Free School Dist. v Yusko (269 AD2d 445 [2000]).However, for the reasons set forth by the dissent in Matter of Binghamton, we think thatTransport Workers compels a different result from the ones reached in those cases.Further, the award in this case recognizes the seriousness of the allegations and imposes apenalty which we do not think is disproportionate to the charges (see Transport Workers,99 NY2d at 11 [finding that "although the awards directed reinstatement of the employees, theyclearly did not disregard safety concerns and the seriousness of the breaches of safety rules.Instead, they imposed serious financial sanctions in both cases"]).
Moreover, we find the penalty imposed here not to be so lenient as to have been arbitrary orcapricious. Preliminarily, Supreme Court is incorrect that the hearing officer found the absenceof physical contact and the fact that M.S. seemed to have "moved on with his life" to bemitigating factors. While the award discusses these facts, there is no evidence that the finaldisposition relied on them. To the contrary, the hearing officer condemned respondent's behaviorin no uncertain terms, and the only mitigating factors he found revolved around respondent'sremorse and the actions she took to prevent the problem from recurring. The hearing officer'sconclusion that respondent was not likely to repeat her actions was necessarily a determinationbased on respondent's credibility, and he was in a far superior position than Supreme Court tomake that determination (see Whitten vMartinez, 24 AD3d 285, 286 [2005]). Moreover, the determination was based onspecific actions taken by respondent such as her decision to seek treatment and her cessation ofcontact with M.S. Under those circumstances, the sanction was appropriate.
This case contrasts sharply with Matter of Binghamton, cited by Supreme Court andthe dissent. There, the Court, in affirming the vacatur of a one-year suspension that SupremeCourt had found "shockingly lenient" (33 AD3d at 1076) noted that the teacher "showed noremorse for the conduct proven by petitioners, disobeyed administrative direction to cease hisrelationship with the student and not transport her in his car, and continued to contact her evenafter disciplinary charges were brought against him" (33 AD3d at 1077). This case is alsodistinguishable from Lackow vDepartment of Educ. (or "Board") of City of N.Y. (51 AD3d 563 [2008], supra),upholding the sanction of dismissal, where the teacher had been warned three times about theinappropriateness of his behavior, yet allowed it to continue. To be sure, we do not disagree withthe dissent that respondent's behavior was highly inappropriate. We simply [*6]disagree that the evidence demonstrates that respondent isunrepentant and likely to pursue inappropriate relationships with students in the future. Thedissent places too much emphasis on the on-line diary. The entries were not, as the dissentdescribes them, "communications," but rather respondent's musings which she posted under analias on a public website without informing the student that she had done so. Moreover, thehearing officer found that, at best, the entries confirmed that respondent had "romantic" feelingstoward M.S. To the extent, however, that they express a desire to commence a physicalrelationship with M.S., we can only speculate that respondent planned to actually pursue such acourse. Again, we do not condone respondent's communicated desire to even talk to the studentabout her feelings toward him, but the question before us is only whether there was a rationalbasis for the hearing officer to conclude that respondent is not a sexual predator who is unable torespect the boundaries that must exist between educators and their charges.
Finally, we do not view this case as being analogous to City School Dist. of City of N.Y.v Hershkowitz (7 Misc 3d 1012[A], 2005 NY Slip Op 50569[U] [2005]), in which ourdissenting colleague found a one-year suspension to be inadequate where a teacher pursued arelationship with a student. First, the behavior in that case was far more egregious. The teachersent sexually explicit e-mails to the student in which he directly invited her to have sex with him.Second, the teacher acted deceptively by instructing the student on how to keep his behaviorhidden from her mother. Third, when the student's mother did find out, the teacher contacted themother and discouraged her from making "a big deal" out of his conduct. Finally, it does notappear from the Hershkowitz decision that, as here, the teacher showed remorse and tookaffirmative steps to reform himself such as seeking therapy. In fact, Justice Acosta rejected outof hand the teacher's claim that he was capable of rehabilitation. The sole basis for thatcontention was the teacher's attorney's statement that his client had not engaged in anymisconduct for the six years that he had been on administrative duty while the charges werepending, an assertion which Justice Acosta called "speculative and unsustainable" and"unworthy of credence" (2005 NY Slip Op 50569[U], *7). Here, the hearing officer had a strongbasis for concluding that respondent could be trusted once again to teach students. Accordingly,his decision to suspend respondent, but not terminate her, was supported by the evidence and notarbitrary and capricious. Concur—Mazzarelli, J.P., Moskowitz and Renwick, JJ.
Saxe and Acosta, JJ., dissent in a memorandum by Acosta, J., as follows: Because I believethat the 90 day penalty imposed is irrational and disconnected from the strong public policy ofprotecting children from improper conduct by those entrusted to educate and guard them, Irespectfully dissent.
Respondent is a tenured high school teacher employed by petitioner. In December 2005,respondent was charged with inappropriate intimate conduct with one of her students.
Pursuant to New York Education Law § 3020-a, an arbitration hearing on the chargeswas held before an arbitrator, who sustained three out of the five charges against respondent.[*7]The Department of Education (DOE) presented evidence tosupport the charges and specifications, which included e-mail and instant messagecommunications between respondent and her student, M.S., and respondent's personal blogrelating her feelings toward her student. Respondent argued that she believed M.S. hadinappropriate feelings for her, and that her blog entries were an attempt to clarify theirrelationship.[FN1]Some of these communications include the following:
"May 02, 2005—Why do the tears always come? My feelings for him are so strong,and I can't say or do anything—I love being close to him, talking to him, being aroundhim, but it is just so filled with pain at times also. Today at one point he was standing behind meso close I could feel the heat from his body radiate to me. I wanted to just let myself go, leanbackwards and sink into him . . .
"May 05, 2005—Do I enjoy insanity? I know I enjoy feeling strong emotions. I knowI just like being with him, talking with him. And what that is wrong?
"May 23, 2005—In my heart I just feel I don't care about anything else but having thechance of being with him. Talking with him, kissing him. When he gets back I hope Ican do what I want. I want to tell him that I think we should go out for coffee or tea and talk.Maybe go to the Muddy Cup . . . I want to talk to him about everything. Cleareverything up. Ultimately I would love to tell him how I feel about him. And to know how hefeels.
"May 28, 2005—All I have thought about is it moving beyond the realm offantasy. I want it to be more. But it is scary, for oh so many reasons. I've just been thinkingabout him so much. Today my thoughts were of a salacious nature. I can't wait to seehim, but I also feel nervous" (emphasis added).
From May 2, 2005 to July 1, 2005, the record shows that respondent wrote 20 such blogentries. On or about June 23, 2005, respondent wrote to M.S. among other things, the following:"There is so much I would like to tell you, to discuss with you. But even now writing this, thereis fear. You, I am sure, understand the risks involved for me. But you have no idea howhappy it makes me to hear from you. And as far as where I am standing, there is only one place Iwould like to be standing. God, help me so! So, I guess we should try to talk. I have oftenthought of the idea of talking over tea or coffee or the beach or something, I don't know. I justdidn't know how insane the idea was" (emphasis added).
Based on the blog entries and communications between respondent and M.S., the arbitratoragreed with DOE that respondent had allowed an inappropriate relationship to [*8]develop, had attempted to communicate her feelings, and ultimatelyattempted to blame the student for having feelings for her. The arbitrator imposed a penalty ofsuspension without pay for 90 days, to be followed by reassignment to another school.
Thereafter, petitioner commenced this proceeding to vacate, or in the alternative, modify thepenalty imposed by the arbitrator. In a detailed 17 page decision, Supreme Court granted thepetition, vacated the arbitrator's decision and remanded the matter for the imposition of a newpenalty. I believe Supreme Court properly vacated the arbitrator's award as being irrational andviolative of New York State's public policy to protect children from harmful conduct of adults inloco parentis.
Initially, and significantly, the issue in this case is not limited to whether the 90-daysuspension is appropriate under the circumstances. Rather, the issue is whether the suspension isrational absent a specific finding that respondent, who was placed in a position of authority overchildren and who betrayed that trust and her responsibility, does not pose a danger to thosestudents. Given the facts of this case, I do not believe the 90-day penalty is rational or that itdeals appropriately with the public policy interest of protecting children against futuremisconduct by returning respondent to a different school following her suspension. This belief isnot based on the length of the penalty, but rather on its failure to adequately ensure against futuresimilar misconduct. The record is devoid of any evidence that once respondent is placed back inan environment with adolescent students, she will not continue her improper conduct.
The penalty imposed by the Arbitrator was based in part on the arbitrator's conclusion thatrespondent's "remorsefulness and subsequent actions and prior record" demonstrated thatrespondent would not engage in this type of conduct in the future. This was an irrationalconclusion. Respondent did express belated remorse for the situation she was in, but neverthelesscontinued to pursue a romantic relationship with her student. A pointed example isrespondent's June 26, 2005 blog entry: "This is just so difficult. Because of course with in therealm of the way things are 'supposed' to be, obviously it is crazy. But life is all about things thatdon't happen like the norm. Many crazier things have happened and been okay"; respondentcontinues to write, "Damn the consequences." It could not be any clearer that whatever hesitationrespondent may have had about her pursuit of her student, she determined the consequences wereworth it, including shattering the sacred student-teacher relationship.
The arbitrator's reliance on respondent's "subsequent actions" is likewise irrational. Aninvestigation of respondent's conduct was commenced on or about June 15, 2005. During theinterim, respondent continued her pursuit of M.S.,[FN2]and was subsequently called in for an interview on June 30, 2005 by the Office of the SpecialCommissioner of Investigation. It was only after this interview that respondent claims that shesought therapy. Prior to this, while respondent had acknowledged the impropriety of her feelings,she refused to correct them or to seek therapy until responsible adults intervened. Once theinvestigation commenced, respondent was forced to avoid contact with M.S. It was not by herown volition. I disagree with the majority that this forced cessation of contact with the studentmay be considered as an act of [*9]remorse.
Nor does the lack of any physical contact between respondent and the student justify the 90day suspension. New York State has an "explicit and compelling public policy to protectchildren from harmful conduct of adults" (Matter of Binghamton City School Dist. [Peacock], 33 AD3d1074, 1076 [2006], appeal dismissed 8 NY3d 840 [2007]). This public policyoverrides the absence of physical contact in this case. In Binghamton, the ThirdDepartment correctly noted, I believe, that a court's authority to overturn an arbitration awardbased on public policy grounds includes the state's compelling interest in protecting our children.The Second Department has likewise recognized that an arbitration award that does notsufficiently protect the children of the state can be vacated on public policy grounds (Matterof Board of Educ. of E. Hampton Union Free School Dist. v Yusko, 269 AD2d 445 [2000]).Indeed, placing emphasis on physical contact alone misses the point. Respondent's conduct wasin fact harmful to her teenage student, and it is conduct that New York guards against.
To be sure, the lack of physical contact here is of no benefit to respondent inasmuch as itresulted from the child alerting adults and not from respondent's lack of effort. Indeed, the recordclearly demonstrates that it was the student's maturity and resistance to respondent that preventedany carnal interaction, to the dismay of respondent. Again, some of respondent's blog entries aretelling. On May 2, 2005, respondent wrote, "Today at one point he was standing behind me soclose I could feel the heat from his body radiate to me. I wanted to just let myself go, leanbackwards and sink into him." On May 23, 2005, respondent wrote that she just cared aboutbeing with her student and "kissing him." A few days later, respondent began thinking about"moving beyond the realm of fantasy," and her thoughts "were of a salacious nature."
These examples, combined with respondent's relentless pursuit of her pupil, undoubtedlyshow that given the opportunity respondent would have moved "beyond the realm of fantasy."For example, respondent expressed her frustration of unrequited love on June 11, 2005, when shedeclared "I ha[t]e you: For not being honest with me. For making it seem so easy to let go, whenall I want to do is hold on. For playing with my heart. For being what you are. For not holdingme in your arms and telling me it will all be okay. For entering my life. Yet, still I want nothingmore than to be with you."
An educator must be in control of her emotions and respect the boundaries required by herprivileged position. The record is replete with examples of respondent allowing her emotions andimproper thoughts to get the best of her. On May 5, 2005, respondent confidently asserted that "Iknow I enjoy feeling strong emotions." On June 14, 2005, respondent expressed hurt and angertoward a minor avoiding her romantic advances: "I had to leave, went down to the beach to letout the racking sobs. If I can't let this go, I don't know what is going to happen to me. It hurts somuch. I am so angry at him. Yet, my heart refuses to let go." Respondent's June 27, 2005 blogmakes it crystal clear that she had no control of her emotions and thoughts, and the line ofteacher and student was completely gone in her mind: "I cry, and cry, and cry, to what end. . . I don't know why him, I don't know how, I don't know anything anymore. Idon't know what I am doing, or how I will go on. I have never faced anything this difficult in mylife . . . Why did he bother to contact me if he didn't want us to talk? That's whatkills me."
The arbitrator's penalty does not address the state's interest in protecting children from aperson who is unable to control such "strong emotions," and what steps respondent would take[*10]during the suspension period to keep her emotions undercontrol. It is evident that the last thing on respondent's mind was to do her job, namely to educateher student. And that is precisely what the penalty must address; it must not only punish theteacher's misconduct, but fully protect students and guarantee that all efforts have been made tokeep them from such a dangerous environment. Contrary to the majority's position, it isspeculative to conclude that respondent has been rehabilitated. The majority points to noevidence to buttress its position that respondent, after serving a completely arbitrary temporalpenalty, is fit to teach male teenage students. As noted, respondent self-servingly claims that shesought therapy after getting caught responding to the Special Commissioner of Investigation'se-mail; yet respondent does not identify what therapy she underwent, the time period, and herprogress, if any. I believe it is dangerous to the students of this state to allow teachers who haveallowed themselves to be "attracted" to their students, whether "intellectually" or physically, tomerely state, without more, that they are fit to teach after serving a specified suspension period.
Finally, respondent argues that Supreme Court improperly likened this case to that ofCity School Dist. of City of N.Y. v Hershkowitz (7 Misc 3d 1012[A], 2005 NY Slip Op50569[U] [2005]). I disagree. While the facts in Hershkowitz are different andrespondent's overt actions therein were far more egregious, I believe there is a parallel. Forexample, in both instances, the teachers who were entrusted to educate and protect the childrenin their care attempted to engage them in a sexual manner. Unlike the respondent inHershkowitz, respondent here was careful to cloak her intentions and thoughts in a morediscrete and "romantic" way. Her communications were not outright vulgar or sexually explicitin nature as they were in Hershkowitz; the communications, nevertheless, very subtlydemonstrated her sexual interest in a minor entrusted to her, just as the respondent inHershkowitz. I, however, do not believe that respondent here should be protectedbecause of her subtlety. In both Hershkowitz and here, the evidence indicated that theteachers were insufficiently rehabilitated to be trusted with the education of their students, andthe penalty imposed failed to address the state's public policy interests in protecting students.
For these reasons, I would affirm Supreme Court's order to vacate the arbitration award andremand the matter for imposition of a new penalty.
Footnote 1: Respondent's contention thather Xanga blog entries were not intended to communicate to internet users, including herstudent, is belied by respondent unwittingly conceding that on certain occasions she posted herblogs in specific response to blog entries by her student.
Footnote 2: On June 30, 2005 respondentwrote "the connection between us is so incredible and special that we will be together in thefuture."