In the Matter of Richard Santer, Respondent,v.Board of Education of East Meadow Union Free School District, Appellant.

Brief

N.Y.February 19, 2014

To Be Argued By: GEORGE B. PAUTA Time Requested: 20 Minutes Nassau County Clerk’s Index No. 001997/10 Appellate Division—Second Department Docket No. 2010-11006 APL-2013-00032 Court of Appeals STATE OF NEW YORK RICHARD SANTER, Petitioner-Respondent, —against— BOARD OF EDUCATION OF THE EAST MEADOW UNION FREE SCHOOL DISTRICT, Respondent-Appellant. REPLY BRIEF FOR RESPONDENT-APPELLANT d CRAIG R. BENSON, ESQ. GEORGE B. PAUTA, ESQ. ETHAN D. BALSAM, ESQ. LITTLER MENDELSON, P.C. 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant September 19, 2013 COUNTER-STATEMENT OF RELATED LITIGATION Pursuant to 22 NYCRR 500.13(a), Respondent-Appellant Board of Education of the East Meadow Union Free School District, by and through its undersigned counsel, Littler Mendelson, P.C., provides the following counter- statement of related litigation. As the District identified in its Statement of Related Litigation, six teachers (including Petitioner-Respondent Richard Santer) were issued disciplinary charges, pursuant to Education Law § 3020-a, for their involvement in the same hazardous parking activity in front of Woodland Middle School. All of the teachers charged with misconduct were found culpable by a hearing officer presiding over their respective disciplinary proceedings. To the extent that any of those teachers have subsequently attempted to have their misconduct findings vacated, up until August 14, 2013, only Petitioner-Respondent had been successful. By Decision and Order, dated August 14, 2013, the Appellate Division, Second Department, rendered a decision in the related case Matter of Lucia v. Board of Education of the East Meadow Union Free School District, Docket No. 2011-08260. Matter of Lucia v. Board of Educ. of E. Meadow Union Free Sch. Dist., __A.D.3d__, 2013 N.Y. Slip Op. 5633 (2013). Just as it did in Matter of Santer, the Appellate Division held that “the evidence at the hearing provided a rational basis for the arbitrator’s decision, and the award was not arbitrary and - 2 - capricious.” (citing Matter of Santer v. Board of Educ. of E. Meadow Union Free Sch. Dist., 101 A.D.3d 1026, 1027 (2012)). Nonetheless, the Appellate Division reversed the lower court, concluding that “for the same reasons as those stated in Matter of Santer ... [t]he petitioner’s expressive activity regarding collective bargaining issues indisputably addressed matters of public concern, and the District failed to meet its burden of demonstrating that the petitioner’s exercise of her First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline.” (internal citations omitted). Notably, Associate Justice Sheri S. Roman, while concurring in the result on constraint of Matter of Santer, opined as follows: In this case, the teachers picketed by parking their cars in a manner which blocked the sidewalk in front of the school and caused children to be dropped off in the middle of the road, requiring them to cross traffic lanes in order to reach the school, and resulted in teachers reporting late to work, leaving students without classroom supervision. The mandate of the school district to provide for the safety of the children and to ensure the proper functioning of the school is paramount, and overrides any manifestation of First Amendment rights that were embodied in this protest by teachers. (see Grayned v. City of Rockford, 408 US 104; Lewis v. Cowen, 165 F 3d 154, 161-163, cert denied 528 US 823). Thus, while I concur in the result reached herein, I do so only on constraint of this Court’s precedent. - 3 - In light of the Appellate Division’s decision, on August 28, 2013, the District timely appealed as a matter of right to this Court for the same reasons as those pending now before the Court in Matter of Santer. Thereafter, on September 4, 2013, the Court accepted the District’s appeal as a matter of right and ordered that Matter of Lucia proceed in the normal course of briefing and argument. Date: September 20, 2013 New York, New York /s/ George B. Pauta Craig R. Benson George B. Pauta Ethan D. Balsam LITTLER MENDELSON A Professional Corporation 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant Board of Education of the East Meadow Union Free School District TABLE OF CONTENTS PAGE i. PRELIMINARY STATEMENT .............................................................................. 1 ARGUMENT ............................................................................................................ 4 POINT I SANTER’S ARGUMENTS CONCERNING HIS INTENT UNDERLYING THE MARCH 2, 2007 PARKING ACTIVITY AND WHETHER THAT ACTIVITY CREATED A HEALTH AND SAFETY HAZARD ARE SETTLED AND NOT BEFORE THIS COURT ON APPEAL ............................................................... 4 POINT II THE MARCH 2, 2007 PARKING ACTIVITY WAS NOT PROTECTED SPEECH BECAUSE OF THE MANNER IN WHICH IT WAS CONDUCTED ...................... 6 POINT III THE DISTRICT HAS DEMONSTRATED ACTUAL DISRUPTION TO ITS OPERATIONS, RESULTING IN THE PICKERING BALANCING TEST TO WEIGH IN ITS FAVOR ............................................................................... 8 POINT IV THE PUBLIC EMPLOYMENT RELATIONS BOARD INDEPENDENTLY CONCLUDED THAT THE MARCH 2ND PARKING ACTIVITY WAS DISRUPTIVE AND ENTANGLED STUDENTS IN A LABOR DISPUTE SO AS TO CAUSE SANTER’S ACTIONS TO LOSE ANY PROTECTED STATUS ............. 13 CONCLUSION ....................................................................................................... 14 ii TABLE OF AUTHORITIES Page(s) CASES Cuff v. Valley Cent. Sch. Dist., 677 F.3d 109 (2d Cir. 2012) ................................................................................. 9 East Meadow Teachers Ass’n v. East Meadow Union Free Sch. Dist., 43 PERB ¶4530 (ALJ Maier, Apr. 20, 2010) ............................................... 13, 14 Gilchrist v. Citty, 173 Fed. App’x. 675 (10th Cir. Apr. 4, 2006) .................................................... 11 Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765 (2012) ........................................................................................... 6 Hara v. Pa. Dep’t of Educ., 492 Fed. App’x. 266 (3rd Cir. Jul. 13, 2012) ..................................................... 10 Hecht v. City of New York, 60 N.Y.2d 57 (1983) ............................................................................................. 4 James v. Mellen, 305 Fed. App’x. 192 (5th Cir. Dec. 15, 2008) .................................................... 10 Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995) ....................................................................................... 9 Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185 (2d Cir. 2003) ........................................................................... 9, 11 NLRB v. Teamsters Local 182, 314 F.2d 53 (2d Cir. 1963) ............................................................................... 7, 8 United States v. Nat’l Treasury Employees Union, 513 U.S. 454 (1995) ............................................................................................ 11 STATUTES CPLR 5515 ................................................................................................................. 4 PRELIMINARY STATEMENT As set forth more fully in the District’s opening brief, the issue before this Court is whether the March 2, 2007 parking activity constituted protected speech under the First Amendment of the United States Constitution. If so, then the second issue before this Court is whether the interests of the District – to ensure the safe arrival of its student population and the timely arrival of its teachers to supervise and educate those students – outweigh those of Petitioner-Respondent Richard Santer (“Santer”) – to participate in a parking protest with the intent to create a health and safety hazard for adolescent students. In his brief, Santer spends countless pages arguing that the March 2nd parking activity was not hazardous and that he did not intentionally create a health and safety risk by purposely situating his car alongside the curb of Wenwood Drive. In so arguing, Santer is attempting to relitigate issues not before this Court on appeal and which have already been resolved by the decision of the Hearing Officer who presided over the Education Law § 3020-a hearing in this matter and which the Appellate Division appropriately concluded had a rational basis and was not arbitrary and capricious. Because Santer has not cross-appealed from that part of the Appellate Division’s Decision and Order the focus of the Court’s analysis is limited to whether the District was justified in its imposition of discipline against Santer in the context of the First Amendment. - 2 - On this issue, Santer incorrectly argues that proper application of the Pickering balancing test to the undisputed record evidence establishes that the District violated Santer’s First Amendment rights when it commenced disciplinary proceedings against him. For example, Santer first argues that the parking activity warrants First Amendment protection because (1) its purpose was to inform the public of the ongoing labor dispute; (2) it was the functional equivalent to picketing along a sidewalk; and (3) there is no evidentiary basis that it was undertaken to create a danger to the public. Santer’s argument is entirely misguided. Indeed, even if the message conveyed during the March 2nd parking activity addressed the ongoing labor dispute, any protection afforded to that activity was lost due to the manner in which it was conducted. Significantly, unlike walking a picket line from the safety of a sidewalk, Santer (and his colleagues) assembled a total of sixteen cars along both sides of Wenwood Drive and, by doing so, created a hazardous situation. The notion that the First Amendment protects this type of activity is inherently wrong, especially where multiple other safer mediums of expression – like walking a picket line – were available to the teachers. Lastly, Santer argues that the District cannot demonstrate that its interests in preventing disruption to its operations outweighed those of Santer’s free speech interests. This is plainly untrue and entirely unsupported by the record evidence. - 3 - As set forth below, Santer’s (and the other teachers) deliberate act of blocking access to the curb along the entirety of Wenwood Drive forced parents to drop off their children in the middle of the street, which significantly impeded traffic. And while not referenced anywhere in Santer’s opposition, the March 2nd parking activity caused 16 teachers to report after school began, leaving homerooms without proper teacher supervision. On this record, the District’s interest in protecting the health, safety and welfare of its student population outweighs Santer’s minimal interest in participating in a discrete parking activity that has been adjudged to have been hazardous and disruptive. Therefore, as set forth below, and more fully in the District’s opening brief, the Appellate Division’s Decision and Order providing that the District violated Santer’s free speech rights by preferring disciplinary charges against him for his adjudged misconduct should be reversed. - 4 - ARGUMENT POINT I SANTER’S ARGUMENTS CONCERNING HIS INTENT UNDERLYING THE MARCH 2, 2007 PARKING ACTIVITY AND WHETHER THAT ACTIVITY CREATED A HEALTH AND SAFETY HAZARD ARE SETTLED AND NOT BEFORE THIS COURT ON APPEAL. In his opposition, Santer goes lengths to try to convince this Court that his intent on March 2nd was solely to apprise the public about the ongoing labor dispute and that the parking activity did not create a health and safety hazard.1 These issues, however, are not properly before this Court on appeal. It is well-settled that “an appellate court’s scope of review ... is generally limited to those parts of the judgment that have been appealed and that aggrieve the appealing party.” Hecht v. City of New York, 60 N.Y.2d 57, 61 (1983); see also CPLR 5515 (“A notice [of appeal] shall designate ... the judgment or order or specific part of the judgment or order appealed from.”) (emphasis added). Here, the Appellate Division decided two separate and distinct issues, viz., (1) whether the Hearing Officer’s award was rational and not arbitrary and capricious; and (2) whether the Education Law 3020-a proceeding commenced against Santer violated his free speech rights under the First Amendment. (R. xi-xiii). With respect to the 1 Petitioner-Respondent’s Brief in Opposition (“Opp. Brief.”), dated August 23, 2013, pp. 7, 8, 21-22, 32-33. - 5 - first issue, the Appellate Division concluded that there existed a rational basis for the Hearing Officer’s determination and, therefore, the award was not arbitrary and capricious. (R. xii). Concerning the second issue, the Appellate Division inexplicably concluded that, even though there existed a rational basis for the Hearing Officer’s findings that Santer intended to create a hazardous situation for students and did in fact create one, the District violated Santer’s First Amendment rights by preferring the disciplinary charges against him. (R. xii). The District has only appealed the second issue. Importantly, in its Notice of Appeal, dated January 30, 2013, the District clearly and unequivocally stated that it was appealing from only: that part of the Decision and Order of the Appellate Division ... which held that Respondent-Appellant Board of Education of the East Meadow Union Free School District violated Petitioner-Respondent Richard Santer’s right to free speech under the First Amendment of the United States Constitution when it commenced disciplinary proceedings against him pursuant to Education Law Section 3020-a. (R. viii) (emphasis added). Therefore, Santer’s attempt to relitigate whether the Hearing Officer had a rational basis to find him guilty of the charged misconduct is - 6 - beyond the scope of the instant appeal.2 See Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765, 770 (2012) (“Because Hahn did not cross-appeal, the Appellate Division’s dismissal of the second through fourth claims ... is not before us.”). POINT II THE MARCH 2, 2007 PARKING ACTIVITY WAS NOT PROTECTED SPEECH BECAUSE OF THE MANNER IN WHICH IT WAS CONDUCTED. In its opening brief, the District argued that the Appellate Division should not have provided First Amendment protection to participants of an activity where the trier of fact concluded that the intent of those participants was to create a hazardous situation, and they, in fact, created such a situation. The District, citing the Supreme Court’s decision in Schenck v. United States, posited that “[i]f falsely shouting fire in a crowded movie theater does not warrant the protections of the First Amendment, neither should the teachers participation in the March 2nd parking activity. As explained in the District’s opening brief, “[t]he intent in both examples is the same – to create a dangerous situation for others.” 2 To the extent the Court were to entertain Santer’s arguments concerning his intent and the hazardous nature of the March 2nd parking activity, Santer concedes that the Appellate Division – unlike the lower court – “applied the correct standard of judicial review when it examined the instant matter.” (Opp. Brief, p. 37). Accordingly, deference should be accorded to the Hearing Officer’s findings of fact based on the record as a whole, which the Appellate Division found to be rational and not arbitrary and capricious. - 7 - Nevertheless, in his opposition, Santer argues that “there is no evidentiary basis for Appellant’s assertion that Santer’s March 2nd activities were undertaken to create a danger to the public.” (Opp Brief, p. 21). As stated above, this issue is settled and, in any event, is demonstrably untrue. Indeed, the Hearing Officer found that Santer’s actions and the circumstances surrounding those actions established such intent. (R. 25-26). The Hearing Officer noted that, despite the fact that Santer knew the area in front of Woodland was used as a student drop-off area, he parked his vehicle there on the morning of March 2, 2007 and knew other teachers parked there as well. (R. 25-26). Santer, therefore, knew that by parking there with numerous other teachers, the parking activity would create a hazardous condition for students. (R. 26). In fact, the record evidence is clear that Santer even stated so at a building union meeting prior to the parking activity. (R. 841- 42). Considering, as this Court must, the content, form, motive and context of Santer’s “speech”, as revealed by the whole record, the only sensible conclusion is that the parking activity is not protected. In a last ditch effort to portray the parking activity as a peaceful demonstration and thus, not hazardous, Santer claims that “parked-car picketing,” similar to that of March 2nd, has already been held to be protected by the First Amendment. (Opp. Brief, p. 30) (citing NLRB v. Teamsters Local 182, 314 F.2d 53 (2d Cir. 1963)). Santer’s claim that the Second Circuit held that “First - 8 - Amendment protection extended to picketers seated in a car while their cars were in a snow bank” is, however, not accurate. (Opp. Brief, p. 30). Indeed, the issue of First Amendment protection was not even before the Second Circuit. Teamsters Local 182, 314 F.2d at 57-58. Rather, that case dealt exclusively with whether or not a union violated Section §8 of the National Labor Relations Act. Id. at 57. In any event, that case is factually distinguishable from the instant matter. Importantly, unlike in this case where sixteen teachers used their vehicles to block a known student drop-off area in front of the middle school during peak morning hours, with the intention to create a health and safety hazard for children, in Teamsters Local 182, the parking activity was not hazardous. Id. Indeed, in Teamsters Local 182, representatives from a union stationed themselves in vehicles parked on the shoulder of a highway adjacent to an automobile dealership and planted two signs in a snowbank abutting the entrance. Id. On these facts, Santer’s contention that picketing described in Teamsters Local 182 is similar to that of March 2nd is off the mark. POINT III THE DISTRICT HAS DEMONSTRATED ACTUAL DISRUPTION TO ITS OPERATIONS, RESULTING IN THE PICKERING BALANCING TEST TO WEIGH IN ITS FAVOR. Contrary to Santer’s argument, the record evidence establishes that the March 2nd parking activity triggered a series of events that caused actual - 9 - disruption to the District’s operations.3 Here, the District experienced actual disruption to its operations and, therefore, it has sufficiently demonstrated that the discipline imposed on Santer was justified. First, the student drop off process became hazardous and disorderly. Indeed, parents could not pull over to the curb to safely drop off their children like they regularly had, and instead had to stop in the middle of the street to drop them off. (R. 467-69, 605). As a result, traffic in front of Woodland became significantly congested in both directions – more so than normal for that time of day – and students were dropped off in the midst of the traffic congestion. (R. 469-70, 485- 86, 605-06, 654). Second, teachers reported late to work. Significantly, at approximately 8:05 a.m., Lethbridge checked the teacher sign-in sheet and discovered that 19 teachers had not yet signed in. (R. 291-98, 494). After interviewing these teachers regarding the reason for their tardiness, Lethbridge concluded that 16 teachers failed to report to work by 8:05 a.m. (which is 10 minutes beyond their required reporting time) as a direct result of the parking 3 The District’s burden is to show “a likely interference” and not an “actual disruption.” Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995) (citing Waters v. Churchill, 511 U.S. 661, 674 (1994)); see also Cuff v. Valley Cent. Sch. Dist., 677 F.3d 109, 113 (2d Cir. 2012) (“This test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable. Rather, the question is ‘whether school officials might reasonably portend disruption from the student expression at issue.’”) (quoting Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008)). “Any actual disruption that has already occurred is of course a persuasive argument for the government that it has met its burden.” Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185, 197 (2d Cir. 2003). - 10 - activity. (R. 281, 459, 503). Third, students went unsupervised. Indeed, the record evidence establishes that as a direct result of teachers reporting late due to the parking activity, students went unsupervised in their homerooms. (R. 395, 400, 487). Thus, the parking activity, having caused a hazardous situation and teachers reporting late to work leaving students unsupervised, undeniably “jeopardize[ed] the official running of the building that particular school day.” (R. 503-04, 508). While the record evidence establishes that the District faced actual disruption to its operations on the morning of March 2nd, the Appellate Division (as does Santer in his opposition) relies on facts that are irrelevant to the question of whether the District’s interests outweigh those of Santer. (R. xiii). Initially, the fact that Santer did not violate any law or school policy has absolutely no bearing on whether actual disruption resulted from the parking activity. There are certainly situations where public employees engage in an activity that, while not unlawful, presents actual or, the potential for, disruption. See Hara v. Pa. Dep’t of Educ., 492 Fed. App’x. 266 (3rd Cir. Jul. 13, 2012) (finding that the superintendent’s article published in the Scranton Times Tribune, which criticized the Department of Education, had the potential to interfere with the regular operation of the Department of Education); James v. Mellen, 305 Fed. App’x. 192 (5th Cir. Dec. 15, 2008) (finding that the district attorney’s decision to terminate an employee because he announced his candidacy for sheriff against the long-time incumbent - 11 - “did not violate a ‘clearly established’ constitutional right because it was done to avoid potential disruptions in the operations of the district attorney’s office.”); Gilchrist v. Citty, 173 Fed. App’x. 675 (10th Cir. Apr. 4, 2006) (finding that a police department chemist’s courtroom testimony caused actual disruption to the functioning of the police department’s forensic laboratory and, therefore, the police department’s interests outweighed those of the chemist). Melzer, supra. (finding that, while the plaintiff’s freedom to associate with and advocate for the North American Man/Boy Love Association (“NAMBLA”) was protected by the First Amendment, the Board of Education sufficiently demonstrated that plaintiff’s degree of involvement in NAMBLA caused disruption to the school’s mission and operations justifying the Board of Education’s action terminating him.). A finding that Santer’s interests outweighed those of the District because no law or policy was violated misapplies the law. Next, it is well-settled that the government “may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.” United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 465 (1995). Therefore, the fact that the District would have no recourse if members of the public parked their cars in the same manner as Santer is irrelevant. Unlike Santer and his colleagues, members of the public do not have an - 12 - affirmative obligation to protect the safety and well-being of the students of the District. The Appellate Division also reasoned that Santer’s interests outweighed those of the District’s because “no school official asked the teachers to move their cars during the protest.” (R. xiii). In his opposition, Santer even goes as far to say that “the undisputed record evidence conclusively shows that the District did not intervene, in any way, during the teachers’ parked-car picketing.” (Opp. Brief, p. 32). This is simply not accurate. Instead, the record evidence establishes that Lethbridge called the police. (R. 19-28, 487-88). It was not unreasonable for Lethbridge to believe that the police were best equipped to handle the situation of parked cars creating traffic congestion and a dangerous situation for students. In any event, Lethbridge’s failure to go outside to direct traffic, assist students in crossing Wenwood Drive, or to disperse the parked cars (Opp. Brief, pp. 32-33), has no bearing on whether the parking activity was hazardous or caused a disruption to the District’s operations. Lethbridge’s purported failure to abate the danger does not diminish the liability for those who created it. Lastly, the Appellate Division mistakenly relied on the fact that no student was injured as a result of the parking activity. (R. xiii). As the Hearing Officer prudently noted in his award, “the fact that no students were injured that day is fortunate but irrelevant.” (R. 25). Indeed, the Appellate Division failed to - 13 - recognize that an actual disruption resulted, irrespective of whether or not a student was injured during the parking activity. Because the right to free speech does not encompass the right to cause disruption or jeopardize the safety and well-being of students, the Appellate Division’s Pickering analysis is flawed and warrants reversal. POINT IV THE PUBLIC EMPLOYMENT RELATIONS BOARD INDEPENDENTLY CONCLUDED THAT THE MARCH 2ND PARKING ACTIVITY WAS DISRUPTIVE AND ENTANGLED STUDENTS IN A LABOR DISPUTE SO AS TO CAUSE SANTER’S ACTIONS TO LOSE ANY PROTECTED STATUS. In Santer’s opposition, he erroneously states that ALJ Maier was constrained by another fact-finder’s determination “that a safety hazard was created by teachers parking curbside on Wenwood Drive” and, therefore, his finding that Santer’s actions on March 2nd were not protected under the Taylor Law has no bearing on the instant proceeding. (Opp. Brief, pp. 11-13). Santer, once again, selectively cites that part of the decision that suits his interests. Contrary to Santer’s contention, ALJ Maier was not constrained by the Hearing Officer’s findings. Indeed, he independently found “on the record in this proceeding” that “Santer’s actions were disruptive and entangled the students in a labor dispute so as to cause Santer’s actions to lose any protected status.” East Meadow Teachers Ass’n v. - 14 - East Meadow Union Free Sch. Dist., 43 PERB ¶4530 (ALJ Maier, Apr. 20, 2010) (emphasis added). Santer also argues that “unconstrained by another fact-finder’s determination, ALJ Maier reached a contradictory conclusion regarding the District’s preferral of § 3020-a charges against [Golden and Fortney] two other teachers for their similar parked-car picketing on Wenwood Drive, before school, on March 30, 2007.” (Opp. Brief, p. 13). There, as Santer correctly states, ALJ Maier ruled that the District’s actions were per se violations of the Taylor Law. (Opp. Brief, p. 13). Santer, however, fails to address that aspect of ALJ Maier’s decision where he highlighted the noticeable differences between the March 2nd and March 30th parking activities. Importantly, ALJ Maier found that “16 to 24 teachers parking along the curb on a day of heavy rain did disrupt the school from functioning properly that day” was factually distinguishable from the “two cars parked along the curb in Golden and Fortney’s case.” East Meadow Teachers Ass’n, supra. Therefore, the March 2nd and March 30th parking activities were fundamentally different. CONCLUSION For all of the foregoing reasons, as well as those set forth in the District’s opening brief, the District respectfully requests that the Court of Appeals reverse the Appellate Division, Second Department’s Decision and Order reversing the - 15 - Short Form Order of the Supreme Court, Nassau County, and award such other and further relief as deemed appropriate by the Court. Date: September 20, 2013 New York, New York /s/ George B. Pauta Craig R. Benson George B. Pauta Ethan D. Balsam LITTLER MENDELSON A Professional Corporation 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant Board of Education of the East Meadow Union Free School District