A fifth-grade teacher who posted on Facebook that her students are "all the devils [sic] spawns" and that she wished they would drown cannot be fired, a unanimous New York state appellate panel ruled Tuesday, affirming a lower court judge.

The Appellate Division, First Department, held in Rubino v. City of New York that firing Christine Rubino for her comments was "shocking to one’s sense of fairness" given "the lack of a prior disciplinary history during petitioner’s 15-year career, and her expression that she would never do something like this again."

The two-page decision affirmed a February 2, 2012, order by Manhattan Supreme Court Justice Barbara Jaffe.

Rubino, a teacher at P.S. 203 in the Flatlands section of Brooklyn, N.Y., posted the offending comments June 23, 2010, the day after a student at a different public school drowned on a field trip to the beach.

Rubino first posted, "After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are all the devils spawns!"

In response, one of Rubino’s Facebook friends posted, "oh you would let little Kwame float away!"

Rubino replied, "Yes, I wld not throw a life jacket for a million!!"

One of Rubino’s colleagues saw the post and brought it to the attention of the school’s administrators. The school’s principal contacted the New York City School District’s special commissioner of investigation. In November 2010, the investigator assigned to the case recommended that Rubino be fired.

When the recommendation was presented to Rubino, she initially claimed she didn’t write the posts and said a friend had access to her Facebook account.

Three weeks later, the investigator interviewed Rubino’s friend, who initially said that she, not Rubino, wrote the posts. However, when the investigator warned her that she could be incarcerated for perjury, she admitted that Rubino had asked her to take responsibility so she would not lose her job. The investigator again recommended that Rubino be fired.

At a series of hearings in the spring of 2011, Rubino said she regretted the posts. She also claimed that, when first confronted about them, she did not remember whether she had posted them, and only remembered that she had, in fact, posted them some time later. She said that she did not ask her friend to lie.

Rubino’s friend also testified, saying she took credit for the posts of her own accord to help Rubino, that Rubino never asked her to lie, and that the friend had only told the investigator that Rubino asked her to lie because the friend was nervous.

The hearing officer presiding over the hearing did not credit these stories and found that Rubino had in fact schemed with her friend to deceive the investigator. Rubino has not contested that finding.

The hearing officer again recommended that Rubino be terminated.

Rubino then brought an Article 78 petition against the city.

Jaffe vacated Rubino’s termination and remanded the matter, finding that termination was excessive because her disciplinary record was "unblemished," there was no evidence that her students were harmed by the posts and the posts were made outside of school on her own time.

"While her reference to a child’s death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance," Jaffe said.

The judge also said that Rubino’s termination would be "inconsistent with the spirit of the First Amendment," though she did not make a definitive ruling on whether it actually violated Rubino’s First Amendment rights.

On remand, Rubino was suspended without pay for two years and is serving out that suspension.

The city appealed, and the case was argued before the First Department on March 26.

In its appellate brief, the city reiterated that Rubino should be fired for her "grossly insensitive remarks" and "extreme antipathy toward her own students."

The city stressed that Rubino apparently colluded with her friend throughout the probe to deceive the investigator and administrators. It also said that she was not remorseful, given that she never apologized to administrators until the hearing. Even at the hearing, the city said, Rubino said that she "picked the wrong forum to vent" and was "sorry that people took it as offensive," showing that she was not truly remorseful.

The city also said that the penalty was not inconsistent with the spirit of the First Amendment because the First Amendment only protects public employees from termination when the speech in question is about a matter of public concern.

Rubino, in her brief, argued that the Facebook posts did not warrant termination because they were "cries of frustration, not declarations of war on students or the Department of Education."

It also argued that Rubino’s scheme with her friend was not grounds for termination.

"While any dishonesty is morally blameworthy, Ms. Rubino was found to have enlisted in the scheme only her best friend, not any student or corruptible adult," the brief said. "No money was offered or exchanged for perjury. This was an ineffectual scheme between best friends."

The brief also stressed Rubino’s clear record, and said she was unlikely to engage in similar conduct again after "the agony of the past two years."

The First Department’s unsigned opinion largely accepted Rubino’s arguments.

"Although the comments were clearly inappropriate, it is apparent that petitioner’s purpose was to vent her frustration only to her online friends after a difficult day with her own students," the panel wrote Tuesday. "None of her students or their parents were part of her network of friends and, thus, the comments were not published to them, nor to the public at large, and petitioner deleted the comments three days later."

The panel added, "Despite petitioner’s initial denials when confronted about the incident several months later, she admitted to making the comments at the disciplinary hearing, acknowledged that they were inappropriate and offensive, and repeatedly expressed remorse. Although the hearing officer found that petitioner engaged in a plan with her friend to mislead investigators right after the allegations surfaced, the court reasonably concluded that petitioner’s actions were taken out of fear of losing her livelihood, rather than as part of a premeditated plan."

The panel included Justices Angela Mazzarelli, Leland DeGrasse, Sallie Manzanet-Daniels and Darcel Clark.

Rubino is represented by Bryan Glass, a partner at Glass Krakower, who could not be reached for comment.

The city was represented by Deborah Brenner, senior counsel in the city Law Department’s Appeals Division.

In a statement, Brenner said, "This is the latest in a series of cases where the Department of Education has had to fight to uphold an arbitrator’s decision to discharge a teacher who engaged in serious misconduct. Arbitrators do not lightly decide that teachers should never be returned to a classroom. The Court of Appeals’ long-standing ruling is that disciplinary penalties should not be overturned unless they are shocking to the conscience, which is not the case here. Ms. Rubino has been ordered reinstated, despite her callous remarks about the death of a fourth-grader and demeaning statements about her own students. … Ms. Rubino compounded her misconduct when she enlisted a friend to falsely take the blame. We are planning to seek leave to appeal to the Court of Appeals."

Brendan Pierson is a reporter for the New York Law Journal, a Legal affiliate. •