Full opinion text
MEMORANDUM, ORDER & JUDGMENT JACK B. WEINSTEIN, Senior District Judge. Table of Contents I. Introduction...............................................................341 II. Facts.....................................................................342 III. Law......................................................................351 A. Summary Judgment....................................................351 B. First Amendment......................................................351 1. Official Speech of Public Employees ..................................352 2. Student Speech ....................................................353 3. Teachers’ Classroom Speech.........................................353 C. Due Process...........................................................354 1. Procedural Due Process.............................................354 2. Notice and Vagueness...............................................355 D. New York State Law...................................................356 1. Breach of Contract.................................................356 2. N egligent Supervision...............................................357 IV. Application of Law to Facts .................................................357 A. First Amendment......................................................357 1. Public Employee Speech Standard....................................357 2. Student Speech Standard............................................357 B. Due Process...........................................................358 1. Procedural Due Process.............................................358 2. Lack of Notice and Vagueness.......................................359 a. The Plain Terms of Chancellor’s Regulation A-421 and Reasonable Opportunity to Know What Is Prohibited..............360 b. Reasonableness of Plaintiffs Conduct.............................361 i. Nature of the Sexually Explicit Terms Used...................362 ii. Publicized Uses of Sexually Explicit Terms....................363 iii. Sexually Explicit Terms in Fiction Assigned in Schools..........364 iv. Sexually Explicit Terms in Sexuality and HIV/AIDS Education...............................................366 c. Explicit Standards for Application................................370 d. Regulation A-421 Was Applied to Ms. Kramer .....................371 C. State-Law Claims......................................................372 1. Breach of Contract.................................................372 2. N egligent Supervision...............................................373 V. Conclusion ................................................................373 Appendix A: Glossary of Relevant Sexual Terms....................................373 Appendix B: Student Notebook Pages .............................................375 I. Introduction 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. 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. She sues defendant, the New York City Board of Education (the “Board”), alleging that she was improperly removed from the classroom, investigated, and deprived of per session work. Claimed are violations of her constitutional rights under the First and Fifth Amendments, breach of contract, and negligent supervision. Plaintiffs reliance on the Fifth Amendment is construed as an invocation of the Fourteenth Amendment, because the latter applies to due process violations or takings by state rather than federal actors. Constitutional claims are brought under sections 1983 and 1988 of title 42 of the United States Code. Expungement of adverse records, monetary damages, attorney’s fees, and costs are sought. By motion for summary judgment the Board seeks dismissal of the suit. Its motion is denied with respect to Ms. Kramer’s claim that the school regulation invoked by the Board was inapt and unconstitutionally vague as applied. The Board’s motion is granted with respect to her other claims. 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. See Bartels v. Iowa, 262 U.S. 404, 412, 43 S.Ct. 628, 67 L.Ed. 1047 (1923) (Holms, J., dissenting) (“No one would doubt that a teacher might be forbidden to teach many things[.]”). 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. II. Facts Ms. Kramer is a forty-eight-year-old, tenured, state-licensed, twenty-six-year veteran teacher in the New York City public schools. See May 6, 2010 Hr’g Tr. at 22 (“Hr’g Tr.”); Pl.’s Mem. of Law in Opp’n to Def.’s Mot. for Summ. J. (“Pl. Mem.”) at 3; Pl.’s Supplemental Aff. in Opp’n to Mot. for Summ. J. (“PL Supp. Aff.”) ¶ 2. She grew up and attended New York City public schools in Brooklyn. Hr’g Tr. 22. Her two sons, now nineteen and twenty-two, both attended New York City public schools in Staten Island. Hr’g Tr. 22-23. She graduated from Brooklyn College with bachelor of science and master’s degrees in physical education specializing in secondary education, received a 6th year administrative certificate from the College of Staten Island, and completed advanced coursework in physical and health education at Brooklyn College. Pl. Supp. Aff. ¶¶ 3-5. The school system provided specific training in sex education, which she completed. Hr’g Tr. 23. Prior to the incident that is the subject of this litigation, Ms. Kramer had received a satisfactory rating (“S”) — the highest possible — in every year since she began receiving annual reviews in 1990. PI. Supp. Aff. ¶ 9. In performance evaluations she has been recognized and commended for “facilitating] student involvement in the lesson, [by] exhibiting] good listening skills, displaying] interest and asking] many questions,” “developing] an excellent working rapport with [] students,” “demonstrating] a desire to get students actively involved in the lesson,” “us[ing] the chalkboard effectively,” “engaging students in collaborative work,” “engaging [students] in ‘accountable talk,’ ” “presenting] information and ideas clearly,” and “using] class time effectively and working] in a very organized fashion.” See PI. Supp. Aff. Ex. 2 (letters of commendations and observations of plaintiffs teaching). Ms. Kramer has received accolades from school administrators, recognizing her efforts and dedication in leading graduation ceremonies and coordinating school science fairs. See id. From 2002 to 2006, she served as Dean of Students at her present school. PI. Supp. Aff. ¶ 7. New York State Education Commissioner Regulations require HIV/AIDS awareness instruction in every grade that is “accurate ... age appropriate and consistent with community values.” N.Y. Comp. Codes R. & Regs. tit. 8, § 135.3(b)(2). The Board provides teachers with an HIV/ AIDS Curriculum, containing lesson plans for each grade. See Feb. 12, 2010 Decl. of Pinar Ozgu (“Ozgu Deck”) Ex. D (New York City Department of Education’s HIV/AIDS Curriculum). Ms. Kramer’s instruction conformed to these lesson plans. In February 6, 2008, Ms. Kramer gave a mandatory HIV/AIDS lesson to her eighth-grade class. See Ozgu Deck Ex. F (Office of Special Investigations Corporal Punishment Intake Form, Feb. 7, 2008); Ozgu Deck Ex. K at D 00002-03 (Mem. report of Chancellor’s Office of Special Investigations). The class consisted of about 30 high-performing students. PI. Supp. Aff. ¶ 12; Hr’g Tr. 24. It was fairly evenly divided between males and females. Ph Supp. Aff. ¶ 12; Hr’g Tr. 25. The group reflected the school’s general student population, which is economically, racially, and ethnically diverse, but is predominantly white with a significant number of recent immigrants. PI. Supp. Aff. ¶¶ 11-12. All members of the class were native or fluent English speakers. Hr’g Tr. 25. Parents had been informed in a letter from the school’s principal of the state HIV/AIDS education requirement, and had been assured by the principal that the instruction would be presented in an “age appropriate” fashion. See Ozgu Deck Ex. E (Dec. 2007 letter from principal to parents). Plaintiff taught from a grade 8 lesson plan in the Board-issued HIV/AIDS Curriculum entitled “How is HIV transmitted?” See Ozgu Deck Ex. D at D 00432-37 (pp. 128-33) (Board’s HIV/AIDS Curriculum, Grade 8, Lesson 2); Hr’g Tr. 25. The lesson plan starts with a list of “performance objectives,” including enabling students to “[i]dentify which body fluids can transmit HIV from an infected person to an uninfected person,” and “[i]dentify activities and behaviors through which HIV can be transmitted.” Id. at D 00432 (p. 128). The bulk of the lesson plan consists of information about HIV transmission, including: definitions of relevant terms like “epidemic,” “transmission,” “preseminal fluid,” and “vaginal fluid”; information about HIV concentrations found in different bodily fluids; descriptions of sexual behaviors that may result in HIV transmission, such as oral, vaginal, and anal intercourse; discussion of other avenues of HIV transmission; advice on how to reduce the risk of HIV transmission; and related information. The lesson plan presents the information in a question-answer format, apparently designed to model a dialogue between teacher and student. Among the suggested questions to be posed by teachers are “Which body fluids from an infected person may contain HIV?”, “What are some behaviors that can increase one’s risk of getting HIV?”, and follow-up questions. Id. at D 00433-34 (pp. 129-30). The teacher is directed to say, “Let’s be sure we all know the meaning of these terms,” and to define the terms for relevant body fluids. Id. at D 00433 (p. 129). Other than the question-answer dialogues, the lesson plan does not provide or suggest any presentations, formats, methods of organization, exercises, activities, group work, in-class assignments, or other methods or techniques for engaging students or conveying the information. No limitations on the terminology to be used are indicated. Interspersed among the suggested question-answer exchanges in the lesson plan are “Teacher Notes” that anticipate student questions and issues and provide additional information to the teacher for responding to those issues. One Note in the lesson plan addresses vocabulary concerns; it strongly suggests that nonstandard vocabulary that is understood by the students, such as slang, may be used to assist students in understanding the concepts covered: Many students use other terms to describe these body fluids and other matters related to sexuality. As with all HIV/AIDS education, it is important that students understand the terms used in the classroom, use them correctly, and relate them to their own experience and language. If students use different terms to refer to body fluids, make sure they understand the relationship between both sets of terms. If students seem uncomfortable during discussion of body fluids and HIV transmission, acknowledge that such a response is natural. Because we do not often discuss such matters in public, it is understandable that some people may feel embarrassed. Nevertheless, it is important to know the facts. Ozgu Decl. Ex. D at D 00433 (p. 129) (emphases added). The introductory materials to the HIV/AIDS Curriculum contain a comment on “Sensitive and Personal Issues,” which addresses similar points: HIV/AIDS education deals with issues of interpersonal relationships, sex, drugs, and death. The teacher’s capacity to listen perceptively and empathetically and to demonstrate a comfortable attitude in dealing with students’ beliefs and feelings associated with HIV/AIDS is crucial to the curriculum’s successful implementation.... [S]tudents come from many different backgrounds and traditions, and ... many may have difficulty sharing ideas and discussing these issues. Id. at D 00405-06 (pp. xvii-xviii). The Curriculum’s Introduction emphasizes the importance of educating students even though the topic is a sensitive one: HIV/AIDS education may mean introducing certain topics earlier than some adults would like. We may remember our own childhood years as sheltered and may prefer not to discuss such topics as drug use, sex, sexual intercourse, and condoms in intermediate and junior high school. Yet we cannot help students protect themselves against HIV unless we tell them how HIV is transmitted. Id. at D 00399 (p. xi). The introductory materials stress that teachers must “[b]e prepared to answer questions about sex.” Id. at D 00406 (p. xviii). A Teacher Note in the “How is HIV transmitted?” lesson plan specifically “recommends that in Grades 7 and 8, teachers should mention types of sexual intercourse in response to students’ questions.” Id. at D 00434 (p. 130) (emphasis added). The HIV/AIDS Curriculum contains supplemental materials in a section entitled “Optional Vocabulary and Concepts Building Strategies for Secondary Grades.” See New York City Dep’t of Education’s HIV/AIDS Curriculum at 301-12, available at http://schools.nyc.gov/ offices/teachlearn/documents/docs/ hivaidsdocs/HIVAidsSecLevelOptVoeab. pdf. Among the recommended exercises for vocabulary and concept building are two based upon “semantic associations” and “brainstorming.” The first, “Connecting Concepts to Vocabulary: Semantic Associations,” directs teachers to “[s]elect a word or words related to HIV/AIDS issues,” write the word on the chalkboard, “[a]sk ... the students to unite as many things as they can think of that are related to” the chosen word, and then write the students’ lists on the blackboard and discuss new words. Id. at 309 (emphasis added). The second, “Expanding Vocabulary Through Brainstorming: Semantic Mapping with HIV/AIDS Focus Words,” recommends that teachers “[s]eleet an ‘HIV/AIDS focus word:’ a word pertaining to a key HIV/AIDS concept that you would like students to think about,” write the word on the chalkboard, “[h]ave students list on paper as many words as possible that are related to the focus word,” write the students’ words “on the chalkboard, grouping them into categories,” and “[u]se any disagreement about defining or categorizing words to spark discussion.” Id. at 310 (emphases added). Teachers are invested with full discretion to design the format and organization of their lessons within the boundaries established by mandated lesson-plans under the Collective Bargaining Agreement between the teachers’ union and the Board (the “Contract”): Lesson Plan Format The development of lesson plans by and for the use of the teacher is a professional responsibility vital to effective teaching. The organization, format, notation and other physical aspects of the lesson plan are appropriately within the discretion of each teacher. A principal or supervisor may suggest, but not require, a particular format or organization, except as part of a program to improve deficiencies of teachers who receive U-ratings or formal warnings. Ozgu Decl. Ex. M at D 00514 (p. 47) (emphases added). During the lesson Ms. Kramer asked the students to provide words that they had heard or used when speaking about sexual acts, body parts, or bodily fluids. See Ozgu Deck Ex. K at D 00003-04 (Mem. report of Chancellor’s Office of Special Investigations); PI. Mem. at 3. The words students suggested included sexual terms ranging from euphemisms to widely used American vulgarisms. See generally App’x A, infra (Glossary of Relevant Sexual Terms, providing definitions of representative terms at issue); App’x B, infra (pages from student notes recording sexual terms mentioned in the lesson); see also, e.g., Fox Indus., Inc. v. Gurovich, 323 F.Supp.2d 376, 381-82 nn. 9-11 (E.D.N.Y.2004) (defining similar vulgar terms). Plaintiff wrote words offered by the students on the blackboard. See Ozgu Deck Ex. K at D 00003-04. Where applicable, she associated each word with its more socially acceptable equivalent, such as “breast,” “penis,” and “vagina.” See App’x B, infra. Ms. Kramer testified that the methods she used were consistent with the sex education training she had been provided with by the school system. She had used the same method in sex education classes for the previous fifteen years, eliciting similar language from students: THE COURT: Have you ever received training in sex or HIV education? MS. KRAMER: Yes, I have. THE COURT: Where? MS. KRAMER: Brooklyn District 15. THE COURT: What kind of training was that? MS. KRAMER: That was the HIV/ AIDS training. We had to meet on staff development days, how to receive curriculum [sic] and teach. Previous to that there used to be a curriculum called Family living and Sex Ed. So one kind of turned into the other. THE COURT: Was what you did in this classroom consistent with that training? MS. KRAMER: Yes. THE COURT: How many years have you been using the technique that was complained of in this incident? MS. KRAMER: Approximately 15. THE COURT: The same words and everything? MS. KRAMER: Whatever words the students used, that’s what I would address. THE COURT: So it is essentially the same with respect to slang? MS. KRAMER: Basically what we would call vulgar terms, not my terms, their terms. Hr’g Tr. at 23-24. Relied on by her in designing and implementing this lesson plan was the “Teacher Note” in the Board’s HIV/AIDS Curriculum concerning student vocabulary and familiarity with terms. MS. KRAMER: [According to the curriculum — if I may? THE COURT: Yes. Page? MS. KRAMER: Page 129. It says: [“]As with all HIV/AIDS education, it is important that students understand the terms used in the classroom, use them correctly, and relate them to their own experience and language. If students use different terms to refer to body fluids, make sure they understand the relationship between both sets of terms.[”] Throughout the curriculum, it states other things about addressing the students’ language. So the students would speak in terms that other students and myself didn’t necessarily understand or have ever heard before, and then other students would say, well, what is that and what do you mean. That’s how the entire lesson came about with this particular class. I specifically told them that it was a brainstorming session, they did not have to say anything or acknowledge anything they were uncomfortable with. And if a student asked if they need to copy this in their notes, I told them absolutely not, we are just brainstorming. Id. 32-34 (quoting Board’s HIV/AIDS Curriculum, Ozgu Decl. Ex. D at D 00433 (p. 129)); see also Ozgu Decl. Ex. K at D 00004 (Mem. report of Chancellor’s Office of Special Investigations) (“Ms. Kramer stated that, in her teaching guide, it suggests that she use terminology that the students may be familiar with, and to make sure they understand the relationship between the proper terms and improper terms[.]”). The next day Ms. Kramer was summoned to the assistant principal’s office where she was informed that some parents had complained about the lesson. See Pl.’s Aff. in Opp’n to Mot. for Summ. J. Ex. 4 at 26 (plaintiffs deposition) (“PL Dep.”). She was then called to the principal’s office with her union representative. Id. at 29-30. There she was shown a few students’ notebooks and asked to explain her lesson. Id. at 30. The principal subsequently requested the Board’s Office of Special Investigations (“OSI”) to investigate. See Def.’s Local Rule 56.1 Statement of Undisputed Material Facts (“Def. SUF”) ¶ 13; Ozgu Decl. Ex. F (OSI Corporal Punishment Intake Form, submitted by the principal on Feb. 7,2008). The school system’s Division of Human Resources informed Ms. Kramer by letter of February 8, 2008 that she was reassigned to non-classroom duties pending investigation of allegations of improper “corporal punishment.” Ozgu Decl. Ex. I (emphasis added). The letter stated: We have been informed that the following allegation(s) have been made against you on February 7, 2008: • Corporal Punishment In view of the seriousness of the allegation(s), effective February 8, 2008, we are reassigning you from your position as a [classroom teacher.]" Id. (emphasis added). New York City schools’ Chancellor’s Regulation A-420, entitled “Pupil Behavior and Discipline-Corporal Punishment,” prohibits “any act of physical force upon a pupil for the purpose of punishing that pupil.” Chancellor’s Reg. A-420 §§ II-III. The Contract appears to invest administrators with authority to remove a teacher from the classroom pending the outcome of an OSI investigation into possible disciplinary charges. Ozgu Deck Ex. M at D 00582 (p. 115). Disciplinary charges and proceedings against tenured city school teachers are governed by section 3020-a of the New York Education Law, entitled “Disciplinary Procedures and Penalties.” Section G of Article 21 of the Contract, entitled “Education Law 3020-a Procedures,” provides supplemental procedures to those laid out in section 3020-a. See Ozgu Decl., Ex. D at D 00580 (p. 113) (“Tenured teachers facing disciplinary charges ... will be subject to Section 3020-a of the Education Law as modified by paragraphs 1-10 below.”). Paragraph 4 of section G, under the heading “Investigations,” provides: Where the Board conducts an investigation of an employee and the employee has been reassigned to administrative duties pending the outcome of such investigation ... the employee will be restored to service no later than 6 months from the date of his or her removal unless Education Law § 3020-a charges have been preferred against the employee.... This requirement to restore an employee to service after 6 months does not include investigations conducted by the Special Commissioner of Investigation .... Id. at D 00582 (p. 115) (emphasis added). Plaintiff was excluded from the classroom through the end of the school year. She received full pay while on reassignment. Pl. Dep. 48-49. The February 8 communication removing Ms. Kramer from classroom duties declared that her “services in per session activities are suspended as a result of this reassignment.” Ozgu Decl. Ex. I. Per session activities are assignments outside of normal school hours under the Contract. Teachers perform them for extra pay; they include coaching sports teams and grading state-wide assessment exams. See PL Mem. at 4; Ozgu Decl. Ex. M at D 00553-56 (pp. 86-89). In the past Ms. Kramer had regularly received per session assignments, and had never been denied an assignment for which she applied. See PI. Dep. 55, 64 (testimony that plaintiff had applied for per session work “at least five times” in the past and had never been denied); see also Ozgu Decl. Ex. T (plaintiffs 2008 application for New York State English Language Arts (“ELA”) exam scoring per session activity, stating “I have been scoring the ELA for the past few years”). Upon her reassignment, Ms. Kramer was suspended from one ongoing per session assignment. See PL Dep. 55-58. She was unable to commence another assignment that she had previously applied for, but did not receive notice that she had been awarded until after her suspension. See Pl. Supp. Aff. Ex. 1 at 3-5 (emails of Mar. 5 & 11, 2008 informing plaintiff she was selected for mathematics test scoring assignment; email of Mar. 6, 2008 confirming that notwithstanding initial selection, plaintiff was prohibited from working on any per session assignment). An OSI investigator interviewed school officials and students; Ms. Kramer was questioned in the presence of her union representative. Ozgu Decl. Ex. K at D 00002-04 (investigator’s report). The April 24, 2008 report of the investigation concluded that “[t]he allegation that Ms. Kramer wrote sexually explicit terms on the board in front of her students is substantiated.” Id. at D 00004. In June, plaintiff received a 2007-2008 yearly performance rating of “N,” sometimes also referred to as an “NA” rating. Ozgu Decl. Ex. N (plaintiffs 2007-2008 annual performance review). “NA” denotes a rating of “not applicable,” rather than an “S” for satisfactory or a “U” for unsatisfactory; it is “used only in situations where a pedagogical employee is reassigned out of his/her regular assignment for disciplinary reasons.” Ozgu Deck Ex. M at D 00579 (p. 112) (Contract’s definition of “NA” rating; emphasis added). An “NA” rating “cannot be used in any proceeding as evidence of wrongdoing and will not otherwise affect any other rights afforded in the [Contract] where ratings are an issue.” Id. As noted above in previous years Ms. Kramer had received only “S” ratings. PL Supp. Aff. ¶ 9; Hr’g Tr. 24. The investigator’s report was forwarded to the principal. Ozgu Decl. Ex. L (Apr. 24, 2008 memorandum from director of OSI to principal). A meeting among the principal, plaintiff, and her union representative took place on August 28, 2008. Ozgu Deck Ex. O (Aug. 26, 2008 letter from principal to plaintiff scheduling meeting); id. Ex. P (Sept. 29, 2008 letter from principal to plaintiff summarizing meeting). In a September 29, 2008 letter to Ms. Kramer, the principal stated his conclusion that Ms. Kramer had “requested that students provide ... slang words for male and female genitalia, sexual acts and bodily fluids,” had written them on the blackboard, and had directed students to write the terms in their notebooks. Ozgu Deck Ex. P at D 00634. The September 29 letter concluded that Ms. Kramer’s actions had “caused students to experience mental distress,” thereby violating Chancellor’s Regulation A-421 prohibiting “verbal abuse.” Id. Regulation A-421 provides in relevant part: A-421 Pupil Behavior and Discipline-Verbal Abuse ABSTRACT This regulation defines and prohibits the use of verbal abuse upon a student.... I. INTRODUCTION Verbal abuse of students is prohibited. Disruptive behavior by a student must never be punished by use of verbal abuse. Such behavior usually reflects underlying problems that require guidance intervention. School personnel should take steps to identify the problem(s) and, working closely with parents, help the student receive maximum benefit from the educational program offered at the school. Matters concerning student behavior should be addressed in accordance with Chancellor’s Regulation A-443 and the Disciplinary Code. II. DEFINITIONS Verbal abuse is not corporal punishment, but is separately proscribed by this regulation. Prohibited verbal abuse includes: • language that tends to cause fear or physical or mental distress; • discriminatory language based on race, color, national origin, alien-age/citizenship status, ethnicity, religion, gender, disability, or sexual orientation which tends to cause fear or physical or mental distress; • language that tends to threaten physical harm; or • language that tends to belittle or subject students to ridicule. III. PROHIBITION A. Verbal abuse of students is prohibited in and around school premises, as well as on school trips. B. No verbal abuse shall be inflicted in any of the public schools, nor punishment of any kind tending to cause excessive fear or physical or mental distress. Violation shall constitute grounds for dismissal. Ozgu Decl. Ex. Q at D 00636 (p. 1 of 5) (emphasis added). It is conceded by the Board that there is “no explicit language in the [principal’s December 2007 letter to parents] or in the teaching curriculum that says that these particular words [used in Ms. Kramer’s lesson] are prohibited.” Hr’g Tr. 8. No school policy or regulation specifically prohibits the use of this language in the classroom. Included in the principal’s September 29 letter was a warning: “This incident may lead to further disciplinary action, including an unsatisfactory rating and charges that can lead to your termination.” Ozgu Decl. Ex. P at D 00634. It appears that no formal disciplinary charges were ever brought under Regulation A-M21. See Reply Mem. of Law in Further Supp. of Def.’s Mot. for Summ. J. (“Def. Reply Mem.”) at 3 n. 2. Nevertheless, the principal’s adverse letter is part of plaintiffs permanent personnel file. Hr’g Tr. 26. Plaintiff disputed the principal’s finding that she directed students to write terms in their notebooks. See Ozgu Decl. Ex. R (plaintiffs objection to principal’s findings). She did not otherwise contest the factual findings adopted in the principal’s September 29 letter. The principal’s letter noted that Ms. Kramer had explained that she intended “to simplify the lesson plan,” and “felt that by allowing students to participate in the lesson using slang terminology it would eliminate the students’ curiosity of the terms in the future.” Ozgu Decl. Ex. P at D 00634. On Oct. 14, 2008, eight months after the event, Ms. Kramer was restored to classroom teaching. Ozgu Decl. Ex. S (Oct. 10, 2008 letter from Division of Human Resources to plaintiff). She applied for and was denied three per session assignments during the 2008-2009 school year, including an assignment scoring the New York State English Language Arts (“ELA”) exam. See PI. Dep. 58-59. This was work she claims would have been given to her were it not for the “NA” rating she received as a result of her reassignment out of the classroom. See PI. Dep. 59-64; Ozgu Decl. Ex. V (decision regarding plaintiffs grievance of denial of ELA scoring assignment). Under the Contract, per session activities are generally awarded “in order of seniority,” subject to specific qualifications that may be required for particular activities. Ozgu Decl. Ex. M at D 00558 (p. 91). Ms. Kramer, with twenty-six years of experience, is - among the most senior teachers at her school. Hr’g Tr. 26. Retention rights in per session activities are obtained by “[tjeachers with at least two years of continuous satisfactory service in a particular activity.” Ozgu Decl. Ex. M at D 00557 (p. 90). Ms. Kramer asserts retention rights in the ELA exam scoring, based on several prior years of participation in that activity. See Hr’g Tr. 25; see also Ozgu Decl. Ex. T (plaintiffs 2008 application for ELA exam scoring per session activity, stating “I have been scoring the ELA for the past few years”). No basis for retention rights in other per session activities is apparent in the record. The Per Session Vacancy Notice for the ELA exam scoring assignment that Ms. Kramer unsuccessfully applied for noted that a “[satisfactory rating [was] required.” Ozgu Decl. Ex. U (Per Session Vacancy Notice No. 72, posted Dec. 8, 2008). Plaintiff concedes that her application for another per session assignment was submitted late, but it is unclear if that was the reason the application was denied. See PI. Dep. at 58-59, 62. The Contract contains detailed grievance and arbitration procedures governing complaints by teachers of “a violation, misinterpretation or inequitable application of any of the provisions of the” Contract. Ozgu Decl. Ex. M at D 00589 (p. 122) (Contract, Art. 22, “Grievance Procedure”). Ms. Kramer initiated a grievance concerning the denial of ELA exam scoring in the 2008-2009 school year. See Ozgu Decl. Ex. V (Grievance Decision — Step 1, Mar. 20, 2009). A “Step 1” conference on the grievance attended by Ms. Kramer, a union representative, and a Chancellor’s Representative was held on March 4, 2009. Id. The Chancellor’s Representative issued a Step 1 grievance decision on March 20, 2009, concluding that the assignment had properly been denied based on Ms. Kramer’s lack of an “S” rating for the previous year. Id. This conclusion was affirmed after an April 8, 2009 “Step 2” grievance conference. See Ozgu Decl. Ex. W (Grievance Decision, May 5, 2009). Plaintiff contested the outcome of the grievance hearings, and the dispute has been submitted to arbitration, pursuant to the Contract. See Hr’g Tr. 16-17; Contract Art. 22.C (“Arbitration”). No other grievance relating to the February 2008 suspension or its consequences has been made by Ms. Kramer. Ms. Kramer received an “S” rating for her performance in the 2008-2009 academic year. See Def. SUF ¶ 42; Hr’g Tr. 24. She continues to teach HIV/AIDS and sex education lessons, and continues to use the methods of instruction that were the subject of parent complaints in February 2008. No school official has directed her to stop using these methods: THE COURT: [A]re you now teaching 13- and 14-year-olds? MS. KRAMER: Yes, I am. THE COURT: Using the same technique? MS. KRAMER: Similar technique. THE COURT: And the slang and vulgar words used in class? MS. KRAMER: By the children, yes, they are. THE COURT: Were you ever explicitly told not to use this kind of thing in the future? MS. KRAMER: No, I never was. THE COURT: But you are still using— when the students use that language, that happens in these classes? MS. KRAMER: It is happening this year. I felt extremely uncomfortable with it because I’m afraid, honestly. THE COURT: Well, did you ever get a specific communication or did the principal ever call you in and say, don’t allow these terms to be used? MS. KRAMER: Never, not until I was called in after the complaint, but never before that. THE COURT: Since then? MS. KRAMER: No. Hr’g Tr. 28-29, 32-33. Ms. Kramer recently received a satisfactory rating for a sex education lesson she taught to seventh graders. See Teacher Observation Report, May 3, 2010 (Court’s Ex. 1 of May 6, 2010). In that lesson, she used a technique similar to that used in the lesson that is the subject of this case; students were asked to write down terms they knew on large sheets of paper. See Hr’g Tr. 27-28. Plaintiff claims that her extended suspension from classroom duties, and the “NA” rating she received, humiliated her and caused her to lose the respect of her colleagues and supervisors, and that the incident continues to affect her professional standing and reputation. See PI. Aff. in Opp’n to Mot. for Summ. J. ¶¶ 7-8; Hr’g Tr. 26. III. Law A. Summary Judgment Summary judgment is appropriate only if “there is no genuine issue as to any material fact and if the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Mitchell v. Washington-ville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999). Dismissal of the complaint is warranted when there is no genuine issue as to any material fact after construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor. Fed.R.Civ.P. 56(c); see Anderson, 477 U.S. at 247-50, 255, 106 S.Ct. 2505; Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir.2009). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party appears to meet this burden, the opposing party must produce evidence that raises a material question of fact to defeat the motion. See Fed.R.Civ.P. 56(e). This evidence may not consist of “mere conclusory allegations, speculation or conjecture.” Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir.1996); see also Delaware & Hudson Ry. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (“Conclusory allegations will not suffice to create a genuine issue.”). B. First Amendment The First Amendment is applicable to the states through the Fourteenth Amendment. It prohibits a state from abridging freedom of expression. See, e.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The Supreme Court has never removed instructional speech “from its presumptive place within the ambit of the First Amendment.” Evans-Mar shall v. Bd. of Ed. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 229 (6th Cir.2005). Neither has the Court ever “held that the First Amendment applies to a teacher’s classroom speech.” M; see also id. at 235 (Sutton, J., concurring). Teacher speech cases must be viewed against a backdrop of the Supreme Court’s robust protection of academic freedom. See, e.g., Keyishian v. Bd. of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (“[Academic] freedom is ... a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”). Significant, however, is “the Supreme Court’s tradition of deferring to local school boards with regard to educational matters.” Evans-Marshall, 428 F.3d at 237 (citing inter alia: Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Sweezy v. New Hampshire, 354 U.S. 234, 255, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957)); see also Lee v. York County Sch. Div., 484 F.3d 687, 695 (4th Cir.2007), cert. denied, 552 U.S. 950, 128 S.Ct. 387, 169 L.Ed.2d 263 (2007) (affirming public schools’ wide discretion “to regulate speech that occurs within a compulsory classroom setting”); Alexander Wohl, Oiling the Schoolhouse Gate: After Forty Years of Tinkering With Teachers’ First Amendment Rights, Time for a New Beginning, 58 Am. U.L.Rev. 1285, 1289 (2009). Age-appropriateness of speech for a student audience has been recognized as a relevant factor: “There can be little doubt that speech appropriate for eighteen-year-old high school students is not necessarily acceptable for seven-year-old grammar school students. Human sexuality provides the most obvious example of age-sensitive matter[.]” Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 416-17 (3d Cir.2003). Divergence among courts with regard to the scope and content of teachers’ free speech rights in the classroom has been reflected in case law, scholarly literature, and the legal press. See, e.g., Evans-Marshall, 428 F.3d at 236-37 (Sutton, J., concurring); Wohl, supra, at 1289-90 (“When it comes to the specific role of teachers in classrooms, however, courts have shied away from establishing an individual standard.”); Karen C. Daly, Balancing Act: Teachers’ Classroom Speech and the First Amendment, 30 J.L. & Educ. 1, 1 (2001) (“In the absence of any Supreme Court precedent squarely addressing the scope of public school teachers’ free speech rights in the classroom, lower federal courts and state courts have been forced to rely on the [inadequate] precedents established in either Pickering v. Board of Education [, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ] or Hazelwood School District v. Kuhlmeier.”). 1. Official Speech of Public Employees In general, public employees’ speech “pursuant to their official duties” falls outside of the First Amendment’s protections. See Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The Supreme Court’s Garcetti decision, which confirmed this rule, specifically left open its application to “speech related to scholarship or teaching.” See id. at 421, 425, 126 S.Ct. 1951. Cases decided prior to Garcetti had held out the possibility of First Amendment protection for public employee speech that involved matters of public concern, where the right to free speech was not outweighed by the public employer’s interest in regulating the speech. See Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering, 391 U.S. at 568, 88 S.Ct. 1731; see also Garcetti 547 U.S. at 418, 126 S.Ct. 1951. Garcetti eliminated hope for First Amendment protection in work-related matters for speech by most public employees. But the possibility remains that teachers’ official speech on matters of public concern may qualify for protection in some circumstances. See id. at 417-20, 425, 126 S.Ct. 1951. 2. Student Speech Students’ free speech rights are limited “in light of the special characteristics of the school environment.” Tinker, 393 U.S. at 506, 89 S.Ct. 733. Schools may regulate student speech in three circumstances: when the speech is (1) school-sponsored, (2) “offensively lewd and indecent,” or (3) likely to cause substantial and material disruption of school activities. See Hazelwood, 484 U.S. at 273, 108 S.Ct. 562 (determining that schools may regulate “school-sponsored” speech “so long as their actions are reasonably related to legitimate pedagogical concerns”); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (recognizing broad school authority to restrict “offensively lewd and indecent speech”); Tinker, 393 U.S. at 506-07, 514, 89 S.Ct. 733 (holding that student speech may be restricted if it causes “substantial disruption of or material interference with school activities”). For purposes of the instant case, only the first two categories of speech that may constitutionally be subject to regulation— school-sponsored speech, and lewd and indecent speech — are relevant. It is not suggested that the speech in question caused disruption of school activities. School-sponsored speech includes words or their equivalent that “might reasonably [be] perceive[d] to bear the imprimatur of the school.” Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Ed., 42 F.3d 719, 723 (2d Cir.1994) (quoting Hazelwood, 484 U.S. at 271, 108 S.Ct. 562). Restrictions on such school-sponsored verbalizations comport with the First Amendment if they are reasonably related to legitimate teaching considerations. Id. Whether a school’s speech restriction is “reasonably related to a legitimate pedagogical concern ‘will depend on, among other things, the age and sophistication of the students, the relationship between teaching method and valid educational objective, and the context and manner of the presentation.’ ” Id. (quoting Ward v. Hickey, 996 F.2d 448, 453 (1st Cir.1993)). “The makeup of the curriculum ... is by definition a legitimate pedagogical concern.” Boring v. Buncombe County Bd. of Ed., 136 F.3d 364, 370 (4th Cir.1998) (en banc). In particular, a recognized concern is a school’s interest in accounting for “the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics” such as “the particulars of teenage sexual activity.” Hazelwood, 484 U.S. at 272, 108 S.Ct. 562. Lewd, indecent, or vulgar speech by students is subject to broad restrictions and regulations by schools. See Fraser, 478 U.S. at 684-86, 106 S.Ct. 3159. This authority is based in part on the state’s greater ability to restrict the availability of sexually explicit material with respect to children than with respect to adults. See id.; see also F.C.C. v. Pacifica Found., 438 U.S. 726, 749-50, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). 3. Teachers’ Classroom Speech There is disagreement among the federal courts of appeals on a critical issue: Should teacher classroom speech be analyzed as the official speech of the teacher as a public employee, or under the more protective standard applicable to student speech? The Court of Appeals for the Second Circuit is among the courts that have extended the Supreme Court’s standard for student speech to teachers’ instructional speech. See, e.g., Silano, 42 F.3d at 722-23; see also Evans-Marshall, 428 F.3d at 236 (Sutton, J., concurring) (citing as examples of this approach: Ward v. Hickey, 996 F.2d 448, 453 (1st Cir.1993); Silano, 42 F.3d at 724; Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004, 1008 (7th Cir.1990); Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 719 (8th Cir.1998); Miles v. Denver Pub. Sch., 944 F.2d 773 (10th Cir.1991); Bishop v. Aronov, 926 F.2d 1066, 1074 (11th Cir.1991)). But see, e.g., Weintraub v. Bd. of Ed., 593 F.3d 196 (2d Cir.2010) (determining that a grievance filed by a teacher was unprotected speech made pursuant to an official duty, without considering the relevance of his position as an educator). Other federal appellate courts analyzing teacher speech have applied the Supreme Court’s more restrictive standard for analyzing official speech of public employees. The Courts of Appeals for the Third, Fourth, and Fifth Circuits have determined that teacher instructional speech is not entitled to First Amendment protection because teachers do not speak on matters of public concern when they follow a school-mandated curriculum. See Edwards v. Calif. Univ. of Penn., 156 F.3d 488, 491 (3d Cir.1998) (concluding “that a public university professor does not have a First Amendment right to decide what will be taught in the classroom”); Boring v. Buncombe County Bd. of Ed., 136 F.3d 364, 368 (4th Cir.1998) (en banc) (limiting Hazelwood standard to cases of student speech); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 798 (5th Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990) (holding teacher speech attains “protected status if the words or conduct are conveyed by the teacher in his role as citizen and not in his role as an employee of the school district” (original emphases)). The Court of Appeals for the Sixth Circuit, in a pre-Garcetti decision, applied the public employee test to teacher curricular expression, see Evans-Marshall, 428 F.3d at 228-29, but it did not categorically hold that instructional speech was not protected by the First Amendment. Instead, the court looked to the content of the speech to determine if it was protected. Id. at 228-31. This view appears to stand alone in focusing on the content of the speech, rather than on whether it was delivered at the school board’s direction, to determine if a teacher spoke on a matter of public concern. Id. at 236 (Sutton, J., concurring). Because of the lack of national uniformity, teacher speech in the instant case is analyzed below under both public employee and student speech standards. C. Due Process The Due Process Clause of the Fourteenth Amendment provides that no “state [shall] deprive any person of life, liberty, or property, without due process of law.” The concept of due process encompasses both procedural protections and the notice that is required describing conduct that may result in a deprivation. 1. Procedural Due Process “ ‘Due process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria and Rest. Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). “An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (internal quotation marks omitted); see also Mathews v. Eldridge, 424 U.S. 319, 348-49, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.2002). A procedural due process claim requires a determination: “(1) whether [plaintiff] possessed a liberty or property interest and, if so, (2) what process [s]he was due before [s]he could be deprived of that interest.” Ciambriello, 292 F.3d at 313. To establish a property interest in a benefit, a claimant must prove that she possessed “more than a unilateral expectation ... [and][i]nstead, ha[d] a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); cf. Abramson v. Pataki, 278 F.3d 93, 99-100 (2d Cir.2002) (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701) (stating that a property interest in public employment may exist if contractual or statutory provisions guarantee continued employment absent just cause for dismissal). “The Supreme Court has repeatedly recognized the severity of depriving someone of his or her livelihood” in considering the nature of the process due. Kuck v. Danaher, 600 F.3d 159, 164 (2d Cir.2010) (quoting Spinelli v. City of New York, 579 F.3d 160, 171 (2d Cir.2009)). Once a property interest is established, the amount of process constitutionally due is determined by balancing: (a) the private interest affected by the official action; (b) the risk of an erroneous deprivation under the procedures used, and the probable value, if any, of additional or substitute safeguards; and (c) the government’s interest, including the function involved and the burdens of additional or substitute procedures. Mathews, 424 U.S. at 335, 96 S.Ct. 893. Because the process constitutionally due varies in accordance with case-by-case balancing, the concept of due process does not necessarily mandate specific procedures, such as an evidentiary hearing. Id. at 348, 96 S.Ct. 893. 2. Notice and Vagueness The Fourteenth Amendment’s guarantee of due process of law ensures that an “individual need not speculate as to the meaning of penal statutes and is entitled to be informed as to what the State commands or forbids.” Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir.2007) (quotation marks omitted). This constitutional principle of adequate notice gives rise to the rule of lenity, according to which ambiguities in criminal laws are resolved in favor of the defendant. See United States v. Thompson/Center Arms Co., 504 U.S. 505, 518, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992). And the vagueness doctrine requires crafting both civil and criminal laws “with sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for those who apply them.” Thibodeau, 486 F.3d at 65 (quotation marks omitted); see also, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968) (invalidating on vagueness grounds civil municipal film licensing ordinance). A statute or rule that by its terms does not apply to a particular type of conduct fails to provide adequate notice to those engaging in such acts that then-conduct is prohibited or subject to penalty. Application of a penal rule to conduct that the rule does not cover is a violation of the constitutional guarantee of adequate notice. The vagueness doctrine voids on due process grounds a rule that contains “prohibitions [that] are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The need for notice is at the heart of the vagueness doctrine. A punitive enactment is unconstitutionally vague when it (1) does not allow a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or (2) lacks explicit standards, thus permitting arbitrary or discriminatory enforcement. See Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294; see also Farid v. Ellen, 593 F.3d 233, 240 (2d Cir.2010). A statute or rule is inadequate under the second criterion when it “fails to provide sufficiently explicit standards for those who apply it,” and “impermissibly delegates basic policy matters ... for resolution on an ad hoc and subjective basis.” Id. at 243. Recognized is a teacher’s “right to notice of what classroom conduct is prohibited.” Ward v. Hickey, 996 F.2d 448, 453 (1st Cir.1993). “The relevant inquiry is: based on existing regulations, policies, discussions, and other forms of communication between school administration and teachers, was it reasonable for the school to expect the teacher to know that her conduct was prohibited?” Id. at 454. “[A] school is not required to state expressly all types of objectionable conduct in order to place teachers on notice that some conduct is sanctionable.” Marchi v. Bd. of Coop. Educ. Servs. of Albany, 173 F.3d 469, 480 (2d Cir.1999). “[S]chools, acting in their capacity as employers,” are granted “significant leeway,” but teachers must still have “sufficient notice of what conduct is proscribed” so they can conform their conduct to what is required of them. Marchi, 173 F.3d at 480 (citing and adopting the standard of Ward, 996 F.2d at 454). In an illustrative decision, the Court of Appeals for the First Circuit held that a teachers’ code of ethics requiring that teachers “recognize[ ] the supreme importance of the pursuit of the truth, devotion to excellence and the nurture of democratic citizenship,” was impermissibly vague as applied in a decision to terminate a teacher for “engaging in a discussion of social mores in the use of language with a chalking of a socially taboo word on the blackboard.” Mailloux v. Kiley, 436 F.2d 565, 566 (1st Cir.1971); Mailloux v. Kiley, 448 F.2d 1242, 1243 (1st Cir.1971). It was held that the ethics code provision “cannot justify a post facto decision by the school authorities that the use of a particular teaching method is ground for discharge, or other serious sanction, simply because some educators disapprove of it.” Id. D. New York State Law 1. Breach of Contract “The elements of a breach of contract claim in New York are: (1) the existence of a contract, (2) performance by the party seeking recovery, (3) non-performance by the other party, and (4) damages attributable to the breach.” RCN Telecom Servs., Inc. v. 202 Centre Street Realty LLC., 156 Fed.Appx. 349, 350-51 (2d Cir.2005) (citing Marks v. New York Univ., 61 F.Supp.2d 81, 88 (S.D.N.Y.1999)). “Generally, an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies.” Spano v. Kings Park Cent. Sch. Dist., 61 A.D.3d 666, 670-71, 877 N.Y.S.2d 163 (N.Y.App.Div. 2d Dep’t 2009) (citing Plummer v. Klepak, 48 N.Y.2d 486, 423 N.Y.S.2d 866, 399 N.E.2d 897, 898-99 (1979)). 2. Negligent Supervision “In instances where an employer cannot be held vicariously liable for its employee’s torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision.” Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 (N.Y.App.Div. 2d Dep’t 1997). “A necessary element of a cause of action alleging negligent retention or negligent supervision is that the ‘employer knew or should have known of the employee’s propensity for the conduct which caused the injury.’ ” Bumpus v. New York City Transit Auth., 47 A.D.3d 653, 654, 851 N.Y.S.2d 591 (N.Y.App.Div. 2d Dep’t 2008) (quoting Kenneth R., 229 A.D.2d at 161, 654 N.Y.S.2d 791). IV. Application of Law to Facts A. First Amendment Applying either the public employee speech standard or the student speech standard, see Part III.B.3, supra, Ms. Kramer’s speech in her state-mandated HIV/AIDS lesson was not protected speech under the First Amendment. Dismissal of her First Amendment claim is warranted. 1. Public Employee Speech Standard Ms. Kramer concedes that the sexually explicit and slang words were elicited from students in the course of teaching a state-mandated HIV/AIDS lesson. See PI. Mem. at 3; Hr’g Tr. 25; see also Ozgu Decl. Ex. D (HIV/AIDS Curriculum). This activity was “pursuant to [her] official duties,” Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. Teacher instruction is public employee speech. See, e.g., Boring, 136 F.3d at 368-70. The words in question did not relate to a matter of public concern and fell outside the protection of the First Amendment. See Weintraub, 593 F.3d at 201 (“In Garcetti, th[e official duties] inquiry was straightforward because the plaintiff admitted that his speech was part of his official job duties.” (citing Garcetti, 547 U.S. at 424, 126 S.Ct. 1951)). 2. Student Speech Standard Nor was plaintiff’s speech protected by the First Amendment under the more protective standards applicable to student speech. The Board had the authority to regulate or restrict plaintiffs speech based either on its status as “school-sponsored” speech or because it might be construed as lewd, indecent or vulgar. Since it was uttered as part of a lesson governed by a Board-issued lesson plan, plaintiffs utterances and activities were school-sponsored. See Hazelwood, 484 U.S. at 271, 108 S.Ct. 562 (characterizing as “school-sponsored” activities that are “supervised by faculty members and designed to impart particular knowledge or skills to studentfs]”); Silano, 42 F.3d at 723 (deeming “school-sponsored” a guest “lecture [that] took place in a traditional classroom setting and was designed to impart particular knowledge to the student participants”). Ms. Kramer’s lesson was intended to implement New York State regulations. They mandate HIV/AIDS education, and provide that such instruction must be accurate, age-appropriate and consistent with the community’s values. N.Y. Comp. Codes R. & Regs. tit. 8, § 135.3(b)(2) The school board has a legitimate interest in ensuring that teachers devise and implement lesson plans in a way it considers effective and appropriate. Cf. Boring, 136 F.3d at 370 (4th Cir.1998) (en banc) (“The makeup of the curriculum ... is by definition a legitimate pedagogical concern.”). Although the school’s decision not to countenance Ms. Kramer’s instructional method “reflected] its own restrictive views of the appropriate values to which ... students should be exposed,” that decision was the school’s to make.