O'Connor v. Sobol

• Decision Date: 31 December 1991
• Citation: 173 A.D.2d 74,577 N.Y.S.2d 716
• Parties: , 71 Ed. Law Rep. 1081 In the Matter of Thomas F. O'CONNOR, Appellant, v. Thomas SOBOL, as Commissioner of Education, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 716

577 N.Y.S.2d 716

173 A.D.2d 74, 71 Ed. Law Rep. 1081

In the Matter of Thomas F. O'CONNOR, Appellant, v. Thomas SOBOL, as Commissioner of Education, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Dec. 31, 1991.

Mitchell Gittin, Hauppauge, for appellant.

Lizette A. Cantres (Kathy A. Ahearn, of counsel), Albany, for Thomas Sobol, respondent.

Bernard T. Callan, Bay Shore, for Brentwood Union Free School District, respondent.

Katherine A. Levine, New York City, for New York State United Teachers, amicus curiae.

Cynthia P. Fletcher, Albany, for New York State School Boards Ass'n, amicus curiae.

Before MAHONEY, P.J., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

MERCURE, Justice.

Appeal from a judgment of the Supreme Court (Cobb, J.), entered September 18, 1990 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Education finding, inter alia, that certain directives issued to petitioner by respondent Brentwood Union Free School District are enforceable.

Petitioner, a tenured high school social studies teacher employed by respondent Brentwood Union Free School District (hereinafter Brentwood), taught a 12th grade "Participation in Government" class. As part of a classroom debate on censorship in school libraries, petitioner distributed to the entire class a sexually explicit article entitled "Better Orgasms". One of the students had given petitioner the article, found in a magazine in the library of the Brentwood North Junior High School, as evidence to support the pro-censorship argument. Following a meeting to discuss the reasons for the article's dissemination, attended by petitioner, his attorney, union representatives and school administrators, Associate Principal Gary Mintz placed in petitioner's personnel file a letter commenting on petitioner's "poor judgment" in distributing the article and directing petitioner, inter alia, "to notify [his] Department Head * * * of the dissemination of any material likely to be considered controversial by staff, class, or community".

Petitioner appealed to respondent Commissioner of Education pursuant to Education Law § 310, claiming a violation of his 1st Amendment rights and requesting that the letter be removed from his file. The Commissioner ruled that the letter (1) did not violate petitioner's 1st Amendment rights, (2) does not trigger the hearing procedure of Education Law § 3020-a, and (3) need not be removed from petitioner's file and that petitioner has no standing to assert the 1st Amendment rights of his students. Petitioner then instituted this CPLR article 78 proceeding seeking to annul the Commissioner's determination. Supreme Court found that the Commissioner's determination was not arbitrary or capricious and dismissed the petition. This appeal followed.

Initially, it is well settled that when a determination of the Commissioner is appealed to the courts in an article 78 proceeding, the scope of judicial review is limited to whether his determination is arbitrary and capricious or lacks a rational basis (Matter of De Bellis v. Commissioner of Educ. of State of N.Y., 95 A.D.2d 907, 464 N.Y.S.2d 259; Matter of Conley v. Ambach, 93 A.D.2d 902, 903, 461 N.Y.S.2d 929, mod. 61 N.Y.2d 685, 472 N.Y.S.2d 598, 460 N.E.2d 1083). Nor is the standard of review any different in cases where constitutional issues are inextricably linked with matters of educational policy (see, Matter of Board of Educ. of City of N.Y. v. Allen, 6 N.Y.2d 127, 136, 188 N.Y.S.2d 515, 160 N.E.2d 60). With this rule as our guide, we turn to a consideration of the questions presented.

Petitioner claims that Education Law § 3020-a was violated. Contrary to petitioner's assertion, the written communication in issue here amounted to nothing more than an "administrative evaluation" and was properly included in petitioner's personnel file without resort to the formal procedures set forth in Education Law § 3020-a (see, Holt v. Board of Educ. of Webutuck Cent. School Dist., 52 N.Y.2d 625, 631-632, 439 N.Y.S.2d 839, 422 N.E.2d 499). The letter did not impose a punishment, but merely reminded petitioner of rules applicable to all Brentwood teachers. As such, it fell "far short of the sort of formal reprimand contemplated by the statute" (id., at 633, 439 N.Y.S.2d 839, 422 N.E.2d 499; see, TeBordo v. Cold Spring Harbor Cent. School Dist., 126 A.D.2d 542, 543, 510 N.Y.S.2d 665, lv. denied 70 N.Y.2d 605, 519 N.Y.S.2d 1028, 513 N.E.2d 1308).

Next, we reject petitioner's contention that he has standing to assert the 1st Amendment rights of his students. First, applying administrative principles, in order to confer standing this court must find that the students' interests are within the zone of interest sought to be protected by Education Law § 310, that the Commissioner's determination has a harmful effect on the students, and that there is no clear legislative intent negating this court's review (see, Matter of City of New York v. City Civ. Serv. Commn., 60 N.Y.2d 436, 443, 470 N.Y.S.2d 113, 458 N.E.2d 354; see also, Matter of Blue Cross of W.N.Y. v. Cooper, 164 A.D.2d 578, 580-581, 564 N.Y.S.2d 866). In the case at bar, although students are within the zone of protection of Education Law § 310, there has been no demonstration that placing the letter in petitioner's personnel file has had a harmful effect on their 1st Amendment free speech rights. No evidence has been presented that students are aware of the letter and that student speech has been chilled thereby. Applying constitutional principles, petitioner has failed to meet his heavy burden of showing " 'a realistic danger that the [letter] itself will significantly compromise recognized First Amendment protections' " of petitioner's students and is, thus, " 'substantially' overbroad" (New York State Club Assn. v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1, quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772).

We now turn to petitioner's principal claim that the letter violates his 1st Amendment free speech rights because it is vague, overbroad and infringes on his ability to engage his students in discussion and debate. First, the letter does not forbid distribution of controversial material or discussion of controversial ideas, but merely requests that petitioner advise the administration of certain material before it is disseminated in the classroom. Thus, it is not vulnerable to an overbreadth attack (cf., Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093). Nor does the directive fail for vagueness. Measured in the context in which the...