Lackow v. Department of Education (or "Board") of the City of New York
| Decision Date | 27 May 2008 |
| Docket Number | 3168. |
| Citation | 859 N.Y.S.2d 52,51 A.D.3d 563,2008 NY Slip Op 04744 |
| Parties | DOUGLAS LACKOW, Respondent, v. DEPARTMENT OF EDUCATION (OR "BOARD") OF THE CITY OF NEW YORK et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
At issue in this matter, brought pursuant to CPLR 7511 and 7803 and Education Law § 3020-a (5), are Supreme Court's vacatur of findings of guilt on several specifications filed against the petitioner, Douglas Lackow, by respondent Department of Education of the City of New York (DOE) and its remand to the hearing officer for reconsideration of the penalty to be imposed by the DOE.
On December 3, 2004, petitioner, then employed by DOE as a tenured biology teacher, became the subject of an investigation of the Special Commissioner's Office for Investigation based on an incident in which a student reported to the assistant principal that she had yelled out "Lackow sucks," and petitioner responded, "No, you suck, well that's what it says in the boys' bathroom."
In response to this reported incident, a DOE Special Investigator interviewed the principal, assistant principal, seven students, a teacher and a teaching assistant. The investigation unearthed a number of complaints about petitioner's use of sexual innuendo in high school classes he taught, and the First Deputy Commissioner prepared a report concluding that the claims were substantiated and that termination was proper. In or about February 2005, petitioner was removed from the classroom and reassigned to a DOE facility in Staten Island.
On or about April 19, 2005, DOE preferred disciplinary charges, pursuant to Education Law § 3020-a, consisting of 16 specifications. DOE alleged that petitioner had "engaged in insubordination, sexual harassment, used inappropriate language and engaged in conduct unbecoming a teacher." A compulsory arbitration hearing was held pursuant to Education Law § 3020-a. Five of the specifications were withdrawn before the hearing and two were dismissed by the hearing officer in a decision dated February 24, 2006. The remaining nine specifications were sustained, and a penalty of discharge was imposed.
Petitioner commenced this proceeding seeking vacatur of the hearing officer's findings or, in the alternative, a penalty short of termination. DOE cross-moved to dismiss the proceeding and to confirm the arbitration determination. Supreme Court vacated six of the specifications, sustained three others, and remanded the matter to the hearing officer to reconsider the penalty because it found the penalty of dismissal so disproportionate to petitioner's conduct as to shock the court's sense of fairness and constitute an abuse of discretion. We reverse, reinstate the hearing officer's findings and recommended penalty, and grant the cross motion to dismiss the petition and confirm the determination.
Initially, as noted, three of the specifications sustained by the hearing officer were not vacated by the court. The first was specification I (a), which alleged that petitioner had made a comment about the color of a student's underwear. In specification II, petitioner was charged with saying, in response to a female student's comment that "[petitioner sucks]," "No, you suck, well that's what it says in the boys' bathroom." The third charge, specification III (a), alleged that, while teaching with a model of female reproductive organs, petitioner said to a male student words to the effect "that [the student] would never see one, so enjoy it, referring to a woman's vagina." Although the court did not disturb those findings, it concluded that, within the context in which each of these comments was made, the language, while inappropriate, did not justify the penalty of dismissal, which the court found to be disproportionate to the offenses and shocking to its sense of fairness.
The six other specifications that the hearing officer sustained, but which the court vacated, reflect a similar pattern of inappropriate comments. In specification III (c), petitioner was charged with saying to a student words to the effect "I don't want to hear stories of you with your legs up in the air." The court found that the comment was made in the context of a reprimand to a female student who was describing to a fellow student how "[a] boy put my legs in the air like this" and, then, for dramatic effect, actually lifted her legs up over her desk and then into the air. The court concluded that under the circumstances the comment did not constitute language or behavior unbecoming a teacher without explaining why the language used by petitioner was appropriate, especially when he was admonishing a teenage girl.
In specification III (d), petitioner was charged with saying, in the course of a conversation about masturbation, words to the effect "that there are some people in this class that would never leave their rooms." The court found that the comment did not constitute language unbecoming a teacher since it was made during a classroom discussion of safe sex, and observed that petitioner testified that he had actually said, "there are people who will misunderstand this information and they may not leave the house." The court's acceptance of petitioner's explanation that this was a harmless joke is inconsistent with the repetitive pattern of petitioner's sexually-laced comments to a gathering of impressionable adolescents.
Specification III (g) charged petitioner with talking to students about how many times he ejaculates. In vacating the finding of guilt with regard to this specification, the court found that there was no evidentiary support for the hearing examiner's conclusion, despite the testimony of a paraprofessional that she heard petitioner discuss the number of times he ejaculated while masturbating.
In specification III (j), petitioner was charged with talking to the students about having sex with animals. Petitioner testified that, in a class on human sexual reproduction, one of the students asked if sex between an animal and a human being would result in a "half animal, half human." As a result, petitioner testified, he entered into a discussion of bestiality, "a sexual disorder in which people want to have sex with animals." He claimed that the exchange was limited...
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