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Disciplinary charges allege use of inappropriate language

Disciplinary charges allege use of inappropriate language
Bernstein v Norwich City School District, 282 A.D.2d 70, leave to appeal denied, 96 N.Y.2d 937

In May 1998 Richard C. Bernstein, a tenured English teacher in the Norwich High School was charged with conduct unbecoming a teacher, insubordination, neglect of duty and incompetence for using what the district regarded as inappropriate verbiage in the course of teaching a lesson.

Bernstein's performance evaluation, which was introduced at the disciplinary hearing, indicated that High School Principal James Walters believed that Bernstein gave undue emphasis upon sexual imagery in his selected readings, classroom discussions and writing assignments.

Also noted in the evaluation was the fact that students had complained that Bernstein had a "tendency to compare them to characters from the books that they were reading in class whose sexual proclivities he had discussed." The evaluation concluded with a directive to "de-emphasize sexual aspects of the literary works that you deal with in your classroom." It also noted that "[t]his concern has been voiced loud and clear during the course of the 1994-95 school year by parents and students. I will anticipate a different focus in your discussions during the 1995-96 school year."

In the course of the May 1998 disciplinary action students from Bernstein's eleventh grade English honors class testified that Bernstein used the words "penis" and "clitoris" when explaining a literary technique. During a meeting with Principal James Walters Bernstein conceded he used these words in a discussion when introducing the topic of "phallogocentrism", a theory of feminist literary criticism involving phallic symbolism, as a background to understanding and interpreting literature.

The Hearing Officer concluded that while the evidence and testimony did not support a finding of guilt on each of the specifications charged, a preponderance of the credible evidence did support the charge of conduct unbecoming a teacher and insubordination.

As to charges of insubordination, the Hearing Officer noted that Bernstein had been warned both orally and in writing by Walters that he should de-emphasize the sexual aspects of literary works and be cautious about classroom discussions that have sexual overtones. The hearing officer indicated that while Bernstein's use these two words in a vacuum may well not have intended to lead to a discussion of sexual matters, he concluded that their use by Bernstein constituted poor judgment in light of his employment history. The hearing officer imposed a penalty of $3,000 fine and a letter of reprimand.

Bernstein appealed. A Supreme Court justice confirmed the hearing officer's determination as to guilt but found that it was error to impose both a letter of reprimand and a fine. A rehearing limited to the issue of penalty was ordered.

Bernstein then appealed to the Appellate Division solely on substantive findings of the hearing officer related to the disciplinary charges sustained by the lower court.

The Appellate Division said that "the cumulative testimony" given at the disciplinary hearing provided the requisite quantum of evidence to support the charges sustained by the hearing officers. Further, said the court, the fact that Bernstein was found guilty of fewer than all of the specifications alleged "is of no merit in challenging the determination rendered."

Bernstein also argued that "his academic freedom must be protected because the information that he was presenting has material educational value." The Appellate Division was not persuaded by this argument.

The court noted that in O'Connor v Sobol, 173 AD2d 74 [appeal dismissed, 80 NY2d 897], it had concluded that notwithstanding teachers' rights to choose methodology under principles of academic freedom, school officials must be permitted "to establish and apply their curriculum in such a way as to transmit community values" providing their discretion is "exercised in a manner that comports with the transcendent imperatives of the First Amendment."

Noting that Bernstein had been previously warned of Walters' concern regarding the sexual content and age appropriateness of the material that he was presenting and was also aware that his prior choice of materials offended community values, the Appellate Division said that "we can find no basis upon which we would disturb the determination rendered."

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If you are interested in learning more about disciplinary actions involving public officers and employees in New York State, please click here: http://thedisciplinebook.blogspot.com/2009/03/discipline-book.html

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Full post as published by New York Public Personnel Law on April 08, 2010 (boomark / email).