An openly gay high school librarian’s six-month suspension for non-sexual but inappropriate touching of male students has been reinstated by a Manhattan appeals court.
"The record is completely devoid of any indicia that either the charges or the penalty imposed were motivated in whole or in part by petitioner’s sexual orientation," a unanimous panel of the Appellate Division, First Department, ruled yesterday in Asch v. New York City Board/Department of Education, 8655. "As a result, the motion court improperly substituted its judgment for that of the hearing officer and thus erroneously applied the narrow public policy exception to invalidate the hearing officers’ determination."
The unsigned opinion reinstates an arbitrator’s six-month suspension without pay of Christopher Asch.
Manhattan Supreme Court Justice Manuel Mendez had thrown out the penalty in June 2011, observing that the sanctions, "while lesser than termination, are shocking to this Court’s sense of fairness" (NYLJ, June 30, 2011).
Justices Angela Mazzarelli (See Profile) , John Sweeny Jr. (See Profile), Karla Moskowitz (See Profile), Dianne Renwick (See Profile) and Helen Freedman (See Profile) sat on the panel, which heard arguments on Nov. 8, 2012.
Asch, a tenured librarian/media specialist at Stuyvesant High School, had worked more than 20 years in the city school system.
He had an "unblemished" disciplinary record until the Department of Education filed charges against him in 2008 because of two separate investigations.
One related to Asch’s purported failure to get adequate school or parental permission before taking students on a field trip to Boston.
The second pertained to the alleged inappropriate touching of several students.
Asch faced nine charges, two of which stemmed from the field trip. Seven related to alleged conduct such as rubbing students’ shoulders, backs and spines; whispering in a student’s ear; and hitting two students on the buttocks with a rolled up newspaper.
Asch also allegedly ran his fingers through a student’s hair, squeezed a student’s stomach though being told not to; and lifted and rubbed a student’s leg while saying, "Insert foot! Open mouth."
An arbitrator heard 12 days of testimony over a number of months from students, school administrators, Asch’s two fellow librarians and Asch himself.
Asch said that with the library’s set-up, standing behind a student was often the only way to catch his attention. To get through to noisy students, Asch said he would try things like standing behind them, speaking softly to them, or tapping their shoulders. If the tapping did not work, Asch said he would "give them a little squeeze on the shoulder."
Another tactic, Asch testified, was "run[ning] my finger a little down their" necks.
Asch denied touching students’ hair, squeezing a student’s stomach or hitting anyone with a newspaper.
Asch called another librarian, Delisa Brown-Guc, who said she would sometimes put her hand on a student’s forearm and speak quietly to deal with a noisy student. But Brown-Guc also said she never did things like squeeze a student’s shoulder or run fingers down a student’s spine. Moreover, if she saw such conduct, she said she would report it to her superiors.
The Department of Education pressed for termination, but the arbitrator dismissed a number of charges and instead ordered six-month suspension without pay. He also ordered Asch to attend counseling on appropriate teacher-student physical boundaries.
Asch appealed the determination, arguing that the arbitrator did not sufficiently consider how false rumors had been spread about him among students prior to the investigation. Moreover, he said the punishment could have a "chilling effect" on homosexual and transgender individuals working for city schools.
Mendez vacated the determination, calling it "clearly disproportionate." The judge added that Asch’s protections under state anti-discrimination laws were violated because Asch was punished for "inappropriate touching when his actions, i.e., touching, whispering and standing silently next to the students, were the same as the heterosexual female librarian" who was not disciplined.
Contrary to Record
But the First Department panel found Mendez’s reasoning "flaw[ed]" and unsupported by the record.
It acknowledged the three testifying librarians used "similar techniques" to deal with noisy students. But, the panel continued, "the female librarians categorically denied ever squeezing a student’s shoulder, touching a student’s hair, or running their finger down a student’s spine."
Furthermore, the panel noted how Brown-Guc said "unequivocally that such conduct is not only inappropriate but would be something she would immediately report to school administrators."
Despite Asch’s arguments to the contrary, the panel said the record was "devoid of any anti-gay animus" from the city’s witnesses.
The panel noted allegations that one of the students purportedly used an anti-gay slur. But it pointed to the testimony of an administrator who said he did not think the student showed a "vindictive motive" in reporting the incidents.
The panel also affirmed the arbitrator’s penalty, saying the officer "carefully" weighed the charges’ seriousness, Asch’s otherwise unblemished record and the likelihood he would correct his behavior.
The arbitrator, said the panel, was in a "far superior position" than the lower court to decide correct sanctions.
"Thus, it cannot be said that, under all of the circumstances here, the penalty imposed is either shocking to the conscience or arbitrary and capricious as petitioner contends," wrote the panel.
The Department of Education was represented by Scott Shorr, senior counsel in the city Law Department’s Appeals Division.
"Despite the general rule of judicial deference to arbitral awards, the trial court vacated the award on factually unsupported grounds. Especially given the importance of maintaining appropriate boundaries between school personnel and students, we are pleased the Appellate Division has reinstated the arbitration decision," Shorr said in a statement.
Asch was represented by Frederic Aaron of Plainview.
"We are deeply disappointed in the decision," he said. "The record in the arbitration shows that Mr. Asch was discriminated against as a gay man. While he is now retired from his position as a school librarian, this case had nothing to do with the money but rather with Mr. Asch’s good name and reputation as someone who had an excellent, unblemished record of over 20 years of service to the Department of Education, which was now sullied by these baseless allegations. We have not yet decided whether to appeal but are keeping all of our options open."
According to the Education Department, Asch retired effective July 1, 2012.
@|Andrew Keshner can be contacted at email@example.com.