Sex Education, Dirty Words, and the Due Process Clause

From Kramer v. New York City Bd. of Ed., 2010 WL 2010462 (E.D.N.Y. May 20) (Weinstein, J.):

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 [and Ms. Kramer then wrote them on the board and "associated each word with its more socially acceptable equivalent" -EV]. 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….

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.

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.

The court ultimately concludes that the Board’s applying the regulation to Ms. Kramer violated the Due Process Clause, because Kramer couldn’t have known that the regulation — which bars “‘verbal abuse of students’ through discipline by use of, among other things, ‘language that tends to cause … mental distress’” — would be interpreted as covering her behavior. For a list of the words involved, see Appendix A; there were a couple that were new to me.