Case Notes

Teacher's Firing Found 'Disproportionate' to Failures

Firing a New York City school teacher who had an unblemished work record for 18 years before he was assigned a class of special education students is a punishment “manifestly disproportionate” to his classroom failures, a divided appeals panel ruled.

The Appellate Division, First Department judges decided 3-2 that teacher Anthony Russo should be reinstated and a lesser penalty be imposed for his performance during the three school years he had the 12 students at PS/IS 377 in Brooklyn. From 2008 to 2011, Russo was given the same group of what started out as fourth-, fifth- and sixth-graders. The students, according to the ruling, were functioning two or three years below their grade levels.

Russo, a licensed special education teacher, was fired by the city in 2011 after being found incompetent by a hearing officer under the arbitration process. The hearing officer found that Russo failed to: protect the health of the students; manage his classroom, which students were entering and leaving without permission; have basic instructional equipment in the classroom, such as bulletin boards; properly execute lesson plans; and implement the corrective measures recommended by Russo's supervisors.

The majority of the court in Russo v. New York City Department of Education, 10300/12, did not dispute the highly critical conclusions about Russo's job performance, but said, “We find that under the circumstances presented here the penalty of termination shocks our sense of fairness.”

The judges questioned whether Russo's successful record as a teacher prior to his experience at PS/IS 377 was adequately considered by the hearing officer. In an unsigned decision, the majority said, “It is troubling to see respondent's apparent determination to terminate petitioner, a 21-year veteran with 18 years of satisfactory ratings, because of his difficulty with one class in which he was kept for three years.”

The majority said some of the classroom problems were not solely Russo's fault. For instance, they said the charge that students were caught viewing pornography in his classroom indicated a failure of the school's computer system to block access to adult materials. In addition, the judges noted that school officials rejected Russo's reassignment request after it became clear that he was having trouble managing the 12 students. Officials also turned down his request for a classroom aide to help him, the court noted. The majority said the assistance that Russo's superiors gave him to help improve his performance was not always useful and at times was contradictory.

“In one instance, petitioner sought help designing a lesson from one assistant principal, but when a different assistant principal observed the lesson that the first assistant principal had prepared with petitioner, the second one rated it as unsatisfactory because the lesson failed to follow a specific structure established by written guidelines,” the decision said.

Justices David Friedman, David Saxe and Helen Freedman were in the majority in the July 3 ruling. Justices John Sweeny Jr. and Peter Tom dissented. Russo appeared pro se.

“I certainly should not have been fired,” Russo said. “This to me was very obvious. I truly believe that I should have won and I am a little surprised, frankly, that it was even close. I knew I was on the right side of this.”

Russo, 61, said he is eager to resume teaching but does not want to work at PS/IS 377 again. A spokesman for the corporation counsel's office said it was considering its options. ' Joel Stashenko, New York Law Journal

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Teacher's Firing Found 'Disproportionate' to Failures

Firing a New York City school teacher who had an unblemished work record for 18 years before he was assigned a class of special education students is a punishment “manifestly disproportionate” to his classroom failures, a divided appeals panel ruled.

The Appellate Division, First Department judges decided 3-2 that teacher Anthony Russo should be reinstated and a lesser penalty be imposed for his performance during the three school years he had the 12 students at PS/IS 377 in Brooklyn. From 2008 to 2011, Russo was given the same group of what started out as fourth-, fifth- and sixth-graders. The students, according to the ruling, were functioning two or three years below their grade levels.

Russo, a licensed special education teacher, was fired by the city in 2011 after being found incompetent by a hearing officer under the arbitration process. The hearing officer found that Russo failed to: protect the health of the students; manage his classroom, which students were entering and leaving without permission; have basic instructional equipment in the classroom, such as bulletin boards; properly execute lesson plans; and implement the corrective measures recommended by Russo's supervisors.

The majority of the court in Russo v. New York City Department of Education, 10300/12, did not dispute the highly critical conclusions about Russo's job performance, but said, “We find that under the circumstances presented here the penalty of termination shocks our sense of fairness.”

The judges questioned whether Russo's successful record as a teacher prior to his experience at PS/IS 377 was adequately considered by the hearing officer. In an unsigned decision, the majority said, “It is troubling to see respondent's apparent determination to terminate petitioner, a 21-year veteran with 18 years of satisfactory ratings, because of his difficulty with one class in which he was kept for three years.”

The majority said some of the classroom problems were not solely Russo's fault. For instance, they said the charge that students were caught viewing pornography in his classroom indicated a failure of the school's computer system to block access to adult materials. In addition, the judges noted that school officials rejected Russo's reassignment request after it became clear that he was having trouble managing the 12 students. Officials also turned down his request for a classroom aide to help him, the court noted. The majority said the assistance that Russo's superiors gave him to help improve his performance was not always useful and at times was contradictory.

“In one instance, petitioner sought help designing a lesson from one assistant principal, but when a different assistant principal observed the lesson that the first assistant principal had prepared with petitioner, the second one rated it as unsatisfactory because the lesson failed to follow a specific structure established by written guidelines,” the decision said.

Justices David Friedman, David Saxe and Helen Freedman were in the majority in the July 3 ruling. Justices John Sweeny Jr. and Peter Tom dissented. Russo appeared pro se.

“I certainly should not have been fired,” Russo said. “This to me was very obvious. I truly believe that I should have won and I am a little surprised, frankly, that it was even close. I knew I was on the right side of this.”

Russo, 61, said he is eager to resume teaching but does not want to work at PS/IS 377 again. A spokesman for the corporation counsel's office said it was considering its options. ' Joel Stashenko, New York Law Journal

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