Sexual conduct between teachers on school premises insufficient to support termination

The New York Appellate Division has concluded that the termination of two teachers accused of engaging in sexual activity on school premises, upheld by two arbitrators, was "shockingly disproportionate" to the misconduct.

The two teachers had returned to the school after dinner to attend a school musical competition. While the performance was underway, the two were discovered in an upstairs classroom. The school asserted that they were partially undressed and engaging in what appeared to be sexual behavior. The teachers denied any sexual impropriety and claimed that one had been rendering medical assistance to the other.

Arbitrators upheld the dismissal of both teachers, and the matter was appealed to the courts. In both cases, the Appellate Division found that termination of employment was too severe. Essentially accepting the arbitrators' findings that the two had engaged in the conduct alleged, the court nevertheless concluded that termination was unwarranted.  In both cases, the Court observed:

While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake ... Of critical significance is that, unlike matters involving some form of romantic involvement or other inappropriate conduct with a student, petitioner's engaging in what appeared to be 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 or engaged in inappropriate behavior with a student ...

Nor did the Court find that the extensive publicity the incident engendered justify termination, noting:

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

Accordingly the court vacated the penalty of termination and remanded the cases for imposition of a lesser penalty.

The Court's opinions can be found here and here.