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Decision No. 13,341

Appeal of SHARON SKRAMSTAD from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a by the Board of Education of the Fallsburg Central School District.

Decision No. 13,341

(January 24, 1995)

John Ferrara, Esq., attorney for petitioner

Roemer and Featherstonhaugh, P.C., attorneys for respondent, Michael P. Mullen, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the decision of a hearing panel convened pursuant to Education Law '3020-a which found her guilty of misconduct and recommended dismissal. The appeal must be dismissed.

Petitioner, a tenured special education teacher, has been employed by respondent since 1989. On October 6, 1993, respondent found probable cause to prefer a charge of misconduct against petitioner:

CHARGE I: Misconduct:

You committed misconduct when you shook, slapped and threatened a student.

SPECIFICATION I:

On Friday, September 24, 1993 in the Resource Room at Benjamin Cosor Elementary School, you shook student D.M. by the shoulders and slapped him in the face for failing to correctly answer a question. Moreover, you threatened to bring in your "horse whip." You committed these acts in front of other students.

A hearing was held on March 16, 1994. On or about August 29, 1994, the panel found petitioner guilty and recommended her dismissal. This appeal followed.

Petitioner states that although she does not agree with the findings of the panel, she does not challenge those findings. Instead, petitioner focuses on the penalty recommended by the panel which, she contends, is too severe. Respondent maintains that the penalty is appropriate.

In determining whether to substitute my judgment on penalty for that of the hearing panel, the question is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, aff'd 56 NY2d 687; Shurgin v. Ambach, 83 AD 665, aff'd 56 NY2d 700). To warrant dismissal, charges must be both substantial and substantiated (Appeal of Bd. of Trustees of Community School District No. 6, 29 Ed Dept Rep 33; Matter of Bd. of Educ., North Syracuse CSD, 23 id. 1; Matter of Mockler, supra). Also pertinent is a teacher's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of Bd. of Educ., Pleasantville UFSD, 31 Ed Dept Rep 262).

Petitioner first contends that her employment should not be terminated because she did not intentionally injure the student in question. The absence of intent, however, is not determinative. While intentional behavior that injures a student may result in the dismissal of a teacher (SeeAppeal of Newman, 33 Ed Dept Rep 613), lack of intent on the teacher's part does not necessarily preclude dismissal. For example, a teacher who is incompetent certainly does not "intend" to provide inadequate instruction. However, the result is the same: students are not properly instructed. Depending upon the specific facts of the case, the teacher's incompetence may be a basis for dismissal. Moreover, petitioner's argument is belied by the facts. The record shows that petitioner clearly intended to strike the student, and did so for very specific reasons. Accordingly, her argument about intent is specious.

Petitioner also maintains that her employment should not be terminated because she did not seriously injure the student. While a student's physical injuries may help prove guilt where a teacher denies that a physical altercation took place, such is not the case here. Because petitioner does not dispute her guilt, her argument instead amounts to nothing more than an excuse for corporal punishment -- as long as the student in question was not hurt too severely. However, this argument ignores the fact that, as noted by the panel, the student could easily have sustained serious injury as a result of petitioner's actions. Moreover, the use of physical force in the classroom desensitizes impressionable children to violence. Certainly, physical force and threats of physical force, such as petitioner's threat to use a whip in the future, cannot be tolerated in the schools (SeeAppeal of Elmira CSD, 30 Ed Dept Rep 68).

Petitioner further contends that her employment should not be terminated because she has no history of inflicting corporal punishment. That contention is also rejected. The central issue here is not whether petitioner has been guilty of a pattern of misconduct, but whether petitioner's actions are serious enough to merit dismissal, regardless of the absence of similar prior incidents (Appeal of Bd. of Educ., Longwood CSD, 33 Ed Dept Rep 455). The record indicates that petitioner threatened, shook and slapped a student without provocation. She concedes that the student was not misbehaving. Petitioner's only explanation is that she overreacted and was frustrated that she was unable to convey a concept to a student. As noted by the panel:

While it is never acceptable for a teacher to lash out at a student because she is frustrated, her conduct is particularly deplorable in this case. The students in Ms. Skramstad's resource room are there because they need special help with academic work, and Ms. Skramstad received training and is certified to meet the special needs of her students. It is essential that a special education teacher exercise patience with students who may require additional time to master a concept.

I also note that while petitioner does not contest the finding of guilt by the panel, she has not been forthright in admitting the charges. In fact, she still maintains that she never hit or slapped the student. Moreover, the panel found that petitioner failed to express sincere remorse for her actions. While the evidence in the record is equivocal on this point, there is sufficient support to uphold the panel's finding that petitioner was not remorseful.

I have reviewed petitioner's remaining contentions and find them without merit. Based on the record before me, I find that the decision of the hearing panel is not arbitrary, capricious or unreasonable. Accordingly, the panel's decision is sustained.

THE APPEAL IS DISMISSED.

END OF FILE