A Manhattan judge had no legal basis to overturn an arbitrator’s 90-day suspension of a Staten Island teacher who had conveyed romantic thoughts to one of her students in instant messages and e-mails, a sharply divided panel of the Appellate Division, First Department ruled yesterday.

The decision by then-Supreme Court Justice Sheila Abdus-Salaam to upset the sanction had cleared the way for the city Department of Education to renew its request in an administrative proceeding to fire the teacher, Colleen McGraham. Justice Abdus-Salaam now sits on the First Department bench (See Profile).

A 90-day suspension without pay was “appropriate,” the majority ruled in light of the fact that Ms. McGraham had sought therapy and ceased contact with the student.

In dissent, Justice Rolando T. Acosta (See Profile) would have sustained Justice Salaam’s ruling because the 90-day penalty is “irrational and disconnected from the strong public policy of protecting children from improper conduct by those entrusted to educate and guard them.” Justice David B. Saxe (See Profile) joined the dissent.

The three judges in the unsigned majority in City School District of the City of New York v. McGraham, 401407/07, were Justices Angela M. Mazzarelli (See Profile), Karla Moskowitz (See Profile) and Dianne T. Renwick (See Profile).

The First Department decision appears on page 45 of the print edition of today’s Law Journal.

Ms. McGraham has let her teacher’s license lapse said her lawyer, Maria Elena Gonzalez, an attorney with the New York State United Teachers.

The events that led to the disciplinary hearing occurred during the 2004-2005 school year at New Dorp High School on Staten Island.

Ms. McGraham, then 36, taught an honors English class for juniors in which the 15-year-old, identified in the opinion as M.S., was a student.

During the school year, Ms. McGraham and the teen became friends through the school’s poetry and theatre clubs. M.S. was a member of both groups and Ms. McGraham served as teacher-advisor for each.

Ms. McGraham gave M.S. her personal e-mail address, and they were in frequent communication after school hours, often until midnight, discussing topics such as literature, writing and movies. At one point, Ms. McGraham lent M.S. the movie “Harold and Maude,” a 1972 movie about a relationship between a teenage boy and an older woman, according to the opinion.

On the last day of the school year, Ms. McGraham wrote in an e-mail to M.S., “I want you to know I tried so hard to handle things the right way, and I feel I failed miserably. Constantly telling myself one thing, and at moments being overridden by emotion.”

In the e-mail Ms. McGraham alluded to the fact that the two were not speaking to each other, and unbeknownst to her the Department of Education had commenced an investigation of her earlier in the day after M.S. had told a teacher about the nature of her communications with him.

An education department investigator and M.S.’s mother responded to Ms. McGraham’s e-mail with one of their own which purported to be from the teen. The e-mail suggested that M.S. had strong feelings for the teacher.

Ms. McGraham then responded, “You, I am sure understand the risks involved for me. But you have no idea how happy it makes me to hear from you.”

Meanwhile, Ms. McGraham had revealed the true intensity of her feelings in a blog she created under a pseudonym. In one posting she wrote that her thoughts were “moving beyond the realm of fantasy” and “were of a salacious nature.” In another she stated, “today at one point he was standing so close that I could feel the heat from his body radiate me.”

An arbitrator dismissed two counts related to the blog posts because they had not been intended for M.S. He also found that Ms. McGraham had never asked M.S. out, and the two had not had sex. He then ordered the 90-day suspension without pay.

The city then brought an action before Justice Abdul-Salaam to overturn the suspension, which she granted.

But the appellate majority found there was “no basis” for overturning the arbitrator’s determination that a 90-day suspension was sufficient.

“To be sure,” the majority wrote, “we do not disagree with the dissent that [Ms. McGraham's] behavior was highly inappropriate.”

Even so, the majority concluded the reason for “the strong public policy” against student/teacher relationships whether sexual or not is a general societal concern, and more than that is needed to overturn the arbitrator’s determination as to sanction.

Instead, there must be a statute or court precedent that embodies a public policy concern which “in an absolute sense” prohibits an arbitrator from rendering certain relief (quoting from Matter of New York City Transportation Authority v. TWU, 99 NY2d 1 (2002)).

In dissent, Justice Acosta wrote that the suspension was “irrational” because it failed to protect future students from similar misconduct by Ms. McGraham.

In one of her blog entries, Justice Acosta noted, Ms. McGraham wrote, “Life is all about things that don’t happen like the norm. Many crazier things have happened and been okay.” She continued, “damn the consequences.”

“It could not be any clearer,” Justice Acosta wrote, that “whatever hesitation [Ms. McGraham] may have had about her pursuit of her student, she determined the consequences were worth it, including shattering the sacred student-teacher relationship.”

Stephen McGrath, a deputy chief in the Corporation Counsel’s Office who represented the Department of Education, said “we are disappointed with the decision and are considering our legal options.”