715 F.Supp.2d 335
Faith KRAMER, Plaintiff,
v.
NEW YORK CITY BOARD OF EDUCATION, Defendant.
No. 09-CV-1167.
United States District Court,E.D. New York.
May 20, 2010.
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Duane C. Felton, Staten Island, NY, for Plaintiff.
Corporation Counsel of the City of New York, by Blanche Greenfield, New York, NY, for Defendant.
+-----------------+ ¦Table of Contents¦ +-----------------¦ +-----------------+
+----------------------+ ¦I. ¦Introduction ¦341¦ +----+-------------+---¦ +----+-------------+---¦ ¦II. ¦Facts ¦342¦ +----+-------------+---¦ +----+-------------+---¦ ¦III.¦Law ¦351¦ +----------------------+
+-------------------------+ ¦¦A.¦Summary Judgment ¦351¦ ++--+-----------------+---¦ ¦¦B.¦First Amendment ¦351¦ +-------------------------+
+--------------------------------------------+ ¦¦¦1.¦Official Speech of Public Employees¦352¦ +++--+-----------------------------------+---¦ ¦¦¦2.¦Student Speech ¦353¦ +++--+-----------------------------------+---¦ ¦¦¦3.¦Teachers' Classroom Speech ¦353¦ +--------------------------------------------+
+--------------------+ ¦¦C.¦Due Process ¦354¦ +--------------------+
+--------------------------------+ ¦¦¦1.¦Procedural Due Process ¦354¦ +++--+-----------------------+---¦ ¦¦¦2.¦Notice and Vagueness ¦355¦ +--------------------------------+
+---------------------------+ ¦¦D.¦New York State Law ¦356¦ +---------------------------+
+-------------------------------+ ¦¦¦1.¦Breach of Contract ¦356¦ +++--+----------------------+---¦ ¦¦¦2.¦Negligent Supervision ¦357¦ +-------------------------------+
+-----------------------------------+ +---+---------------------------+---¦ ¦IV.¦Application of Law to Facts¦357¦ +-----------------------------------+
+------------------------+ ¦¦A.¦First Amendment ¦357¦ +------------------------+
+----------------------------------------+ ¦¦¦1.¦Public Employee Speech Standard¦357¦ +++--+-------------------------------+---¦ ¦¦¦2.¦Student Speech Standard ¦357¦ +----------------------------------------+
+--------------------+ ¦¦B.¦Due Process ¦358¦ +--------------------+
+-------------------------------------+ ¦¦¦1.¦Procedural Due Process ¦358¦ +++--+----------------------------+---¦ ¦¦¦2.¦Lack of Notice and Vagueness¦359¦ +-------------------------------------+
+-----------------------------------------------------------------------------+ ¦¦¦¦a.¦The Plain Terms of Chancellor's Regulation A-421 and Reasonable ¦360¦ ¦¦¦¦ ¦Opportunity to Know What Is Prohibited ¦ ¦ ++++--+-------------------------------------------------------------------+---¦ ¦¦¦¦b.¦Reasonableness of Plaintiff's Conduct ¦361¦ +-----------------------------------------------------------------------------+
+------------------------------------------------------------------------+ ¦¦¦¦¦i. ¦Nature of the Sexually Explicit Terms Used ¦362¦ +++++----+-----------------------------------------------------------+---¦ ¦¦¦¦¦ii. ¦Publicized Uses of Sexually Explicit Terms ¦363¦ +++++----+-----------------------------------------------------------+---¦ ¦¦¦¦¦iii.¦Sexually Explicit Terms in Fiction Assigned in Schools ¦364¦ +++++----+-----------------------------------------------------------+---¦ ¦¦¦¦¦iv. ¦Sexually Explicit Terms in Sexuality and HIV/AIDS Education¦366¦ +------------------------------------------------------------------------+
+----------------------------------------------------+ ¦¦¦¦c.¦Explicit Standards for Application ¦370¦ ++++--+------------------------------------------+---¦ ¦¦¦¦d.¦Regulation A-421 Was Applied to Ms. Kramer¦371¦ +----------------------------------------------------+
+-------------------------+ ¦¦C.¦State-Law Claims ¦372¦ +-------------------------+
+-------------------------------+ ¦¦¦1.¦Breach of Contract ¦372¦ +++--+----------------------+---¦ ¦¦¦2.¦Negligent Supervision ¦373¦ +-------------------------------+
+------------------+ +--+-----------+---¦ ¦V.¦Conclusion ¦373¦ +------------------+
+-------------------------------------------------+ +---------------------------------------------+---¦ ¦Appendix A: Glossary of Relevant Sexual Terms¦373¦ +---------------------------------------------+---¦ +---------------------------------------------+---¦ ¦Appendix B: Student Notebook Pages ¦375¦ +-------------------------------------------------+
I. Introduction
To a senior judge, father, and grandfather, educated in the New York City public schools, there appears to be no more daunting undertaking than discussing sex and HIV/AIDS with a class of female and male thirteen- and fourteen-year-old eighth grade students. Executing such a task would require great sensitivity, skill, commitment, and not a little courage. This mission was given to plaintiff Faith Kramer, a veteran city school teacher of twenty-six years, holder of bachelor's and master's degrees in education from Brooklyn College and a 6th year certificate from Staten Island College, with no blemish in her outstanding record as a teacher of young adolescents.
Ms. Kramer was provided with a syllabus that directed that students be encouraged to use terms they understood. In the classroom discussion students uttered the somewhat vulgar words they knew. Because her charges departed from the nomenclature of polite discussion, Ms. Kramer was removed from the classroom, kept in non-teaching detention for eight months, investigated, provisionally determined by her principal to have committed a serious violation of a school regulation, denied a satisfactory rating for the school year, and deprived of the extra income she had previously been earning from extra “per session” assignments. Ultimately, the charge of violating school regulations was not pursued, and plaintiff was never brought up on formal disciplinary charges. She has been reinstated to her classroom duties.
She sues defendant, the New York City Board of Education (the “Board”), alleging that she was improperly removed from the classroom, investigated, and deprived of per session work. Claimed are violations of her constitutional rights under the First and Fifth Amendments, breach of contract, and negligent supervision. Plaintiff's reliance on the Fifth Amendment is construed
as an invocation of the Fourteenth Amendment, because the latter applies to due process violations or takings by state rather than federal actors. Constitutional claims are brought under sections 1983 and 1988 of title 42 of the United States Code. Expungement of adverse records, monetary damages, attorney's fees, and costs are sought.
By motion for summary judgment the Board seeks dismissal of the suit. Its motion is denied with respect to Ms. Kramer's claim that the school regulation invoked by the Board was inapt and unconstitutionally vague as applied. The Board's motion is granted with respect to her other claims.
The regulation relied upon by the Board did not prohibit Ms. Kramer's conduct. It appears to have been selected post hoc, long after her suspension, to justify the measures that had been taken in response to parents' complaints. Based on the regulation, this teacher ought never to have been removed from the classroom. If she had not been kept from the classroom, she was likely to have received a satisfactory rating for the 2007-2008 school year, and would have continued to obtain additional income from per session assignments. Her requests for compensation, expungement, fees, and costs survive.
The State of New York requires some sex education as essential for this pubescent student age-group, in view of the serious public health consequences resulting from lack of knowledge of HIV/AIDS and its modes of transmission. The issue posed by this case is not whether language deemed more appropriate to the setting would be desirable; this is a matter for the Board, not the court, to determine through its regulations, curricula, and teaching guides. See Bartels v. Iowa, 262 U.S. 404, 412, 43 S.Ct. 628, 67 L.Ed. 1047 (1923) (Holms, J., dissenting) (“No one would doubt that a teacher might be forbidden to teach many things[.]”).
If the Board of Education wants its teachers to instruct adolescents about HIV using Latinism of the academy, excluding vulgarism of the street, it should tell them so, plainly. Instructors in the position of plaintiff are entitled to know what the rules are before they are sanctioned for going beyond unmarked boundaries they reasonably believed did not exist. The substantial weight of pedagogical literature and other authorities, as well as the broad discretion granted by the Board, support the bona fides of this teacher's approach under these circumstances.
II. Facts
Ms. Kramer is a forty-eight-year-old, tenured, state-licensed, twenty-six-year veteran teacher in the New York City public schools. See May 6, 2010 Hr'g Tr. at 22 (“Hr'g Tr.”); Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (“Pl. Mem.”) at 3; Pl.'s Supplemental Aff. in Opp'n to Mot. for Summ. J. (“Pl. Supp. Aff.”) ¶ 2. She grew up and attended New York City public schools in Brooklyn. Hr'g Tr. 22. Her two sons, now nineteen and twenty-two, both attended New York City public schools in Staten Island. Hr'g Tr. 22-23. She graduated from Brooklyn College with bachelor of science and master's degrees in physical education specializing in secondary education, received a 6th year administrative certificate from the College of Staten Island, and completed advanced coursework in physical and health education at Brooklyn College. Pl. Supp. Aff. ¶¶ 3-5. The school system provided specific training in sex education, which she completed. Hr'g Tr. 23.
Prior to the incident that is the subject of this litigation, Ms. Kramer had received a satisfactory rating (“S”)-the highest possible-in...
