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Decision No. 14,343

Appeal of CATHERINE CLOUSTON, on behalf of her daughter ABIGAIL KELLAM, from action of the Board of Education of the Hancock Central School District regarding school suspension.

Decision No. 14,343

(April 25, 2000)

Hinman, Howard & Kattell, LLP, attorneys for petitioner, James S. Gleason, Esq., of counsel

Hogan & Sarzynski, LLP, attorneys for respondent, Michael G. Surowka, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals her daughter’s suspension from school for three days in February 1996. The appeal must be dismissed.

In May 1995, Abigail Kellam was a ninth grade student at Hancock High School, and was enrolled in German I. On May 9, 1995, Abigail made a complaint to the high school principal, George Wacker, about the manner in which the German class was conducted, claiming that the teacher, Peter Nelson, allowed the boys in the class to create an atmosphere of sexual harassment, and indeed encouraged them. The following day, Abigail and the other three girls in the class went to Mr. Wacker’s office to discuss the girls’ complaints concerning gender bias and hostile environment sexual harassment in the class. The girls’ comments were tape recorded, with their knowledge. The tapes were later transcribed, although not in verbatim form, and each girl signed a copy of these summaries on May 12.

From May 10, the girls did not return to the German I class, but instead reported each day to the high school guidance office. They did not receive classroom instruction in German for the remainder of the school year, but were given assignments and quizzes, and petitioner’s daughter ultimately passed the course.

After the girls’ statements were signed, the materials were turned over to an attorney representing the district, who conducted further interviews, including interviews with some of the male students in the class, during May and June 1995. On September 25, 1995, the attorney reported his findings to the superintendent. He outlined the investigative procedures, and noted that the teacher, Peter Nelson, was no longer employed by the district. He further concluded that the four girls’ statement were "falsehoods," and recommended disciplinary proceedings.

On February 7, 1996, approximately four and one-half months later, petitioner’s daughter was suspended and was advised that a disciplinary hearing had been scheduled for February 13. Petitioner retained counsel, and her daughter was returned to school after missing three days of instruction. On February 13, an amended notice of charges was drawn, and hearings were held on February 21 and 22, and March 5, 1996. On January 9, 1997, ten months later, the hearing officer issued his report, finding petitioner's daughter guilty of several charges, and not guilty of several others. On March 14, 1997, a further hearing was held as to the appropriate penalty to be imposed for the charges sustained. On April 3, the hearing officer recommended:

Reviewing the entire record in this matter, including but not limited to the transcript of the proceedings of March 14, 1997, I find no reason why an additional disciplinary penalty should be imposed on Abigail. Accordingly, I hereby recommend to the Superintendent of Schools that the three-day suspension previously served by Abigail Kellam constitutes the appropriate disciplinary penalty in this matter and that no additional disciplinary sanction should be imposed.

On May 1, 1997, the superintendent issued his determination, accepting the findings of fact and recommendations of the hearing officer, both as to guilt and penalty. The determination was appealed to respondent, which heard the matter on June 9, 1997. By a letter dated June 10, 1997, the clerk of respondent board advised petitioner’s attorney that respondent affirmed the findings and assessments of punishment by the superintendent. This appeal ensued.

One of the other girls in the German I class was also the subject of disciplinary proceedings resulting in a suspension of four days, which she, likewise, served in February 1996. An appeal to the Commissioner was commenced on her behalf on August 26, 1997, and, in addition, an action was commenced on her behalf in the United States District Court for the Northern District of New York. During the course of a series of inquiries to counsel in both appeals, my Office of Counsel learned in January of this year that the federal action had been settled, and that the parallel appeal was to be withdrawn with the consent of respondent’s counsel. In the process of seeking further information from counsel in both this appeal and the withdrawn appeal, my Office of Counsel learned that no court proceedings had been brought by the petitioner in this appeal, and by letter dated March 6, 2000, learned that this petitioner had not been involved in any settlement similar to that reached in the action brought on behalf of the other girl.

Petitioner claims that the record does not support any findings of guilt on the part of her daughter, and does not provide the basis for her suspension. She further argues that, in effect, her daughter was suspended from German I from May 10, 1995, to the end of the school year, and that the disciplinary proceeding commenced on February 7, 1996, was a second punishment based upon the same facts. Finally, petitioner claims that the filing of a complaint by her daughter and the other girls was a protected activity pursuant to 20 USC "1681, et seq., and cases decided thereunder.

Respondent denies petitioner’s claims, and argues that the disciplinary proceeding was properly conducted and justified, and that the discipline imposed was in all respects proper.

The appeal must be dismissed as moot. Abigail’s punishment in this matter, a suspension of three days, was served in February 1996, approximately 17 months before the commencement of this appeal. Abigail graduated from respondent’s high school in June 1998, and has been employed full-time since then, in addition to attending college since August 1999. She now has no relationship with respondent. The Commissioner of Education only decides matters in actual controversy, and will not render a decision on a state of facts that no longer exists or which subsequent events have laid to rest (Appeal of Morenus, 39 Ed Dept Rep 33, Decision No. 14,165; Appeal of McConnon, 37 id. 691, Decision No. 13,959; Appeal of Junger, 37 id. 519, Decision No. 13,916).

Although I am constrained to dismiss the appeal, I must comment on the manner in which this matter was handled by respondent. It is clear from the discussions the four complaining female students had with the principal on May 10, 1995 (as summarized in the summaries they signed on May 12) and from the principal’s memorandum of May 11, 1995, to the superintendent, that the administrators knew that the girls were complaining that their teacher, Mr. Nelson, had allowed an "atmosphere" in the class that allowed male students to conduct sexually explicit discussions, and that Mr. Nelson at times joined in those discussions, to the embarrassment and discomfort of the four female students.

Thereafter, an attorney representing the district interviewed three of the four girls who had signed summaries on May 12, seven male students from the class, the dean of students, the school guidance counselor, and Mr. Nelson. Prior to the time that Mr. Nelson resigned and took another job, the investigation was directed toward whether or not prohibited sexual discrimination was occurring in the form of a hostile classroom environment.

It appears that once Mr. Nelson left, the focus, at least with respect to Abigail, changed to whether or not five particular statements that Abigail attributed to Mr. Nelson were actually made by him. Whether this change of direction was made out of loyalty to Mr. Nelson, out of a desire to protect his reputation, or out of a desire to protect the reputation of a female teacher about whom Mr. Nelson allegedly made remarks of a sexual nature, is impossible to say. Ultimately the hearing officer decided that Mr. Nelson made one of the remarks that Abigail attributed to him, that he did not make three other remarks, and that Abigail did not actually attribute the fifth remark to him.

Title 20 USC "1681(a) provides, with certain exceptions not relevant here, that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. Section 1682 provides that each federal department and agency which can extend federal financial assistance to any education program or activity is authorized and directed to effectuate "1681. To that end, the United States Department of Education adopted the procedural regulations found in 34 CFR, Part 106, Subpart F, for the handling of claims of sexual discrimination. Included in this procedure is "106.71, which adopts 34 CFR ""100.6–100.11, and 34 CFR, Part 101, the procedural rules governing employment discrimination claims based on sex. Among the sections adopted is 34 CFR "100.7(e), which states that no recipient of a complaint of sexual discrimination in education shall intimidate, threaten, coerce or discriminate against any individual to interfere with any right or privilege secured by statute. By incorporating "100.7(e) from the employment discrimination area into the procedural rules for sexual discrimination in education claims, it appears that the Secretary of Education has forbidden retaliatory action against persons who complain of non-employment sexual discrimination on the same basis as employment-related claims.

A number of courts have also concluded that persons making non-employment claims of sexual discrimination in the education environment pursuant to 20 USC "1681 have a right to be free from retaliation, and, under certain circumstances, have recognized a private right of action on the part of the person against whom retaliation is directed. See, e.g., Lowrey v. Texas A & M University System, 117 F.3d 242 (5th Cir. 1997); Murray v. New York University College of Dentistry, 57 F.3d 243 (2nd Cir. 1995); Clay v. Board of Trustees of Neosho County Community College, 905 F.Supp. 1488 (D. Kan. 1995); Clemes v. Del Norte County Unified School District, 843 F.Supp. 583 (N.D. Cal. 1994).

Petitioner raised the issue of retaliation with respect to Abigail's Title IX complaint, but the hearing officer declined to rule on it. The superintendent determined that Title IX was not a bar to the disciplinary proceeding; respondent's decision does not mention the issue, but simply affirms the "findings and assessments of punishment" by the superintendent.

In view of the disposition herein, I decline to rule on the retaliation issue. However, as I noted above, district administrators knew at the outset that the girls were making complaints about improper sexual discrimination in the classroom. As stated in the principal's May 11, 1995, memo to the superintendent:

In my office, Abigail began to tell more and more about things which had occurred in the class including references made to various parts of the female anatomy. These things, according to Abigail, were heard by Mr. Nelson and in some cases he even participated in the commenting. None of these comments seemed to be directed at the girls in the class specifically, more like "locker room" humor. I told Abigail that these were serious allegations and that I would begin investigating. Miss Berry was present during the office discussion.

The following day, Wednesday, May 10, Abigail and the other three girls refused to attend class. I had Miss Berry speak to the girls about why they were not attending, and that they would either have to go back to class or file formal complaints. They chose to file complaints.

Miss Berry and I spoke with each of the four girls individually. Although their complaints were not identical, they were similar enough in detail that I made a report to the superintendent. . . .

There[sic] complaints are:

-Mr. Nelson allows an atmosphere in the class which allows the boys in the class to make sexually explicit and embarrassing remarks in front of and to the girls in the class.

-Mr. Nelson has participated in some discussions with male students which concerned sexually suggestive topics. The girls were able to hear these conversations.

-Mr. Nelson does not really teach them because he allows the boys in the class to distract him from the day’s lessons. This includes occasionally having students who are not in the class come in and converse with him.

-Mr. Nelson engaged in a conversations[sic] with a student, . . ., indicating that he (Mr. Nelson) had been drinking with a female teacher and had done "the little tango" with her. When one of the girls asked if he meant that he danced with her, Mr. Nelson shook his head and . . . said the girl should be able to figure out that Mr. Nelson meant they had sex. Mr. Nelson then indicated to the girls that this was true by telling them about a tattoo on a private part of the female teacher’s anatomy.

Following each interview, each girl was cautioned about discussing this information with other students. They said it wouldn’t matter because Mr. Nelson had said similar things in other classes.

Since these reports could have disastrous affects on the careers of two teachers, I reported to the superintendent so that we could speak with our legal counsel and decide where to proceed next.

I disagree with respondent's action of focusing only on five particular statements that Abigail allegedly attributed to Mr. Nelson, while apparently ignoring the broader scope of the pervasive hostile sexual environment that she and the other girls described.

In the future, should similar complaints recur, I strongly urge the district to review the case law cited above, and to be guided accordingly. I note particularly the statement made by the court in Nelson v. University of Maine System, 925 F.Supp. 275 (D.Me. 1996), at p.284:

To satisfy the first prong of a prima facie case for retaliation, the conduct opposed need not necessarily violate Title IX; rather, the plaintiff need only have a good faith belief that a Title IX violation was occurring. Petitti, 909 F.2d at 33 (1st Cir. 1990)(quoting Jennings v. Tinley Park Community Consol. School Dist., 796 F.2d 962, 967 (7th Cir. 1986), cert.denied, 481 U.S. 1017, 107 S.Ct. 1895, 95 L.Ed.2d 502 (1987)); Love v. RE/MAX of America, 738 F.2d 383, 385 (10th Cir. 1984); Muehlhausen v. Bath Iron Works, 811 F.Supp. 15, 18 n. 7 (D.Me. 1993).