N.Y. Appellate Panel Finds Discharge is Disproportionate Penalty for Teachers Accused of Having Lesbian Sex in a Classroom

In a pair of decisions issued on March 24, the New York Appellate Division, First Department, found that the New York City Education Department should not have discharged two female teachers who were alleged to have been engaging in sexual activity in a darkened, otherwise empty classroom one evening while a musical program was taking place elsewhere in the building. However, the court found that the teachers had engaged in conduct that merited punishment, and sent the case back to the Education Department for imposition of “a lesser penalty.” The court’s opinion made nothing of the gender of the teachers. A spokesperson for the Education Department expressed disappointment with the decision, and there were reports that the Department might seek review from the state’s highest bench, the Court of Appeals.

Alini Brito was a Spanish teacher and Cindy Mauro was a French teacher, both assigned to James Madison High School in Brooklyn. On November 20, 2009, they joined with other colleagues to have dinner and then return to the school to watch a music competition in the auditorium. Brito and Mauro slipped out during the performance and were later allegedly observed by a school employee in an upstairs classroom “partially undressed and engaging in what appeared to be sexually inappropriate behavior” with each other. The women contended that they were not engaged in sex and that the observer misconstrued what he saw. However, the Education Department claimed that their conduct “caused widespread negative publicity, ridicule and notoriety” to the school and the Department when somebody, who knew they had a juice story, talked to the newspapers, leading to widespread print and electronic media reporting about the incident.

The Education Department sought to discharge both teachers, and the union pursued grievances on their behalf to arbitration. The discharges were upheld in arbitration by the hearing officers, and the teachers appealed to New York Supreme Court, the trial court with jurisdiction over the case. The two trial court judges who heard the appeals came to differing conclusions. In Brito’s case, Justice Alice Schlesinger vacated the termination and the finding of misconduct and sent the case back to arbitration for a new hearing. However, in Mauro’s case, Justice Robert Torres enforced the arbitrator’s award, upholding the discharge. Both decisions were appealed, and an Appellate Division panel considered both cases together.

The panel found that Justice Schlesinger should not have substituted her judgment for the hearing officer about what the evidence showed. “Here, Supreme Court erred in substituting its judgment for that of the hearing officer. The hearing officer’s findings of misconduct . . . are supported by adequate evidence,” wrote the court. “Multiple witnesses gave interlocking and closely corroborating testimony indicating that petitioner engaged in sexual conduct with an adult colleague 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 first floor. There is no basis for disturbing the hearing officer’s credibility determinations.” This finding also confirmed Justice Torres’s conclusion in Mauro’s case that the teacher had engaged in misconduct.

But, said the court, “the penalty of termination of employment is shockingly disproportionate to petitioner’s misconduct.” The court observed that the teachers were present at the school as audience members, not in their official capacity as teachers, and that the incident “involved a consenting adult colleague and was not observed by any student.” Both teachers enjoyed academic tenure and had unblemished disciplinary records. Brito’s supervisor described her as “one of the best teachers she had ever worked with,” and the court noted that Mauro had “consistently satisfactory teaching ratings.”

In identical paragraphs in the two opinions, the court explained, “While petitioner’s behavior demonstrated a lapse in judgment, there is no evidence that the incident was anything but a one-time mistake. Of critical significance is that, unlike matters involving some sort of romantic involvement or other inappropriate conduct with a student, petitioner’s engaging in 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 with or engaged in inappropriate behavior with a student. Nor is there 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.”

This opinion is an extraordinary example of how drastically things have changed over the last several decades. There was a time when the mere hint that a teacher was lesbian or gay would result in a discharge, back when all gay sex was condemned as criminal. New York’s highest court voided the state “sodomy” law’s application to private, consensual adult conduct in 1980, however, and in 1986 the City Council passed an ordinance forbidding sexual orientation discrimination. These actions were amplified when the state legislature repealed the sodomy law and passed the Sexual Orientation Non-Discrimination Act early in this century, and of course in 2003 the U.S. Supreme Court ruled that private adult consensual homosexual sex came within the sphere of liberty protected under the 14th Amendment. What could have been seen as criminal and scandalous decades ago became the object of ridicule by some elements of the media in 2009, and now a state appellate court says that the teachers deserve some punishment for this lapse in judgment for engaging in this conduct in an unlocked classroom while an evening event was happening at their school auditorium, but not discharge.

The teachers were both represented by Michael Valentine and Aaron Altman of the firm Altman Schochet. The judges on the unanimous appellate panel were Angela Mazzarelli, Richard Andrias, Leland DeGrasse, Helen Freedman and Judith Gische. The unsigned opinions were the collective work of the panel, not attributed to any individual justice.

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