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.