“Teachers did not deserve firing after sex, panel finds”

So reads the headline to a New York Law Journal article about yesterday’s New York appellate court decision in Matter of Brito v. Wolcott (N.Y. Super. Ct. App. Div. Mar. 20, 2014). Here’s an excerpt from that decision; the same result was reached in the case involving the other teacher:

Petitioner [Alini Brito] taught Spanish at James Madison High School (JMHS) from 2003 until November 20, 2009. On Friday, November 20, 2009, she ate dinner with colleagues and returned to the school later that evening to watch a musical competition in the first floor auditorium, although she was not required to do so. During the performance, petitioner was allegedly observed in an upstairs classroom “partially undressed["] … and “engaging in what appeared to be sexually inappropriate behavior with a colleague” …. These actions allegedly “caused widespread negative publicity, ridicule and notoriety to [JMHS] and the New York City Department of Education (DOE) when [petitioner's] misconduct was reported in New York area news reports and papers” ….

Multiple witnesses gave interlocking and closely corroborating testimony indicating that petitioner engaged in sexual conduct with an adult colleague [Cindy Mauro] in a darkened and empty third-floor classroom on November 20, 2009 at about 9:00 p.m., while a student musical performance was under way in an auditorium on the main floor….

[But] the penalty of termination of employment is shockingly disproportionate to petitioner’s misconduct …. “[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved[.]”

Petitioner was present at the school as an audience member and not in any official capacity. The incident involved a consenting adult colleague and was not observed by any student. Before the incident, petitioner, a tenured teacher who had made many positive contributions to the school, had an unblemished disciplinary record, and, moreover, was described by her supervisor as one of the best teachers she had ever worked with.

While petitioner’s behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake. Of critical significance is that, unlike matters involving some form of romantic involvement or other inappropriate conduct with a student, petitioner’s engaging in what appeared to be consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper. Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship or engaged in inappropriate behavior with a student (compare City School Dist. of the City of N.Y. v McGraham, 75 AD3d 445 [1st Dept 2010] [penalty of 90-day suspension without pay and reassignment rather than termination reinstated in light of overall circumstances demonstrating the improbability of teacher engaging in similar inappropriate behavior in the future], affd 7 NY3d 917 [2011]; Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415 [1st Dept 2013] [six-month suspension and mandatory counseling constituted an appropriate penalty for a librarian with 20 years of service who over a three-year period had engaged in inappropriate touching of high school students that the hearing officer found was not sexual misconduct]; Nreu v New York City Dept. of Educ., 25 Misc 3d 1209[A] [Sup Ct, NY County 2009] [where petitioner, who had unblemished record, was found guilty of repeated inappropriate communications with student, one-year suspension without pay did not shock one's sense of fairness]).

Nor is there is any indication in the record that petitioner’s conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination (see Matter of Ellis v Ambach, 124 AD2d 854 [3d Dept 1986] [two-year suspension for driver education teacher who had been convicted of criminally negligent homicide in connection with a hit-and-run accident that had been widely reported in the press], lv denied 69 NY2d 606 [1987]).

Seemed like an interesting case, so I thought I’d pass it along. Note that the case rested on the New York civil service law, not on some broad constitutional principles — the court doesn’t deny that, if a state wanted to leave schools with the discretion to fire teachers for such behavior, it could; the court’s position is simply that New York law limits schools’ discretion on this point.

The record is silent on which songs drove the teachers into their ungovernable passion. For local coverage of the incident, see this New York Post article.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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