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December 2, 1995

BRENTWOOD UNION FREE SCHOOL DISTRICT; BOARD OF EDUCATION, BRENTWOOD UNION FREE SCHOOL DISTRICT; ANTHONY FELICO, RUTH ROSENTHAL, STEVEN COLEMAN, FRANK CANNON, MARY REID, OWEN McCAFFREY, JAIME SUAREZ, in their capacities as Members of the Board of Education, BRENTWOOD UFSD; ANNE ROONEY, In her Capacity as Acting Principal South Middle School; FRANK MAURO, In his Capacity as Superintendent of School Brentwood UFSD; DR. ROSEMARY TOWNLEY and DR. THOMAS CARAMORE, In their Capacities as Members of the Disciplinary Hearing Panel, Defendants.

The opinion of the court was delivered by: SPATT

 Spatt, District Judge:

 This case arises out of the one year suspension of the Plaintiff, Charles B. Taylor ("Taylor"), from his position as a tenured school teacher in the Brentwood Union Free School District (the "School District"). Taylor claims that he was singled out for disciplinary action by the School District an the members of its Board of Education because of his race and his open criticism of their treatment of minority teachers. The plaintiff argues that his suspension violates both his equal protection and free speech rights, as well as New York State anti-discrimination law.


 On January 16, 1992, the Board of Education found that there was probable cause to charge the plaintiff with misconduct, conduct unbecoming a teacher and insubordination. The misconduct and conduct unbecoming a teacher charges were based on events which occurred on May 8, 1989 and December 5, 1991 during which Taylor allegedly used excessive force while disciplining two of his students. The remaining charge alleged that Taylor was insubordinate for ignoring multiple prior warnings regarding the misuse of force. The charge were based on the Board of Education's Policy 5131, which provides:

Staff Responsibilities In Maintaining Discipline
Staff will serve as the primary means of enforcing school regulations. . . . They will supervise the physical movement of students in the class and from one room to another. . . .
Reasonable physical force used for the following purpose is not to be misconstrued as corporal punishment.
(1) to protect oneself from physical injury;
(2) to protect another pupil or teacher or any other person from physical injury;
(3) to protect the property of the school or of others; or
(4) to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school district functions, powers or duties, if that pupil has refused to comply with a request to refrain from further disruptive acts.

 Pursuant to these charges, the School Board sought to have the plaintiff dismissed as a tenured school teacher.

 Taylor denied the charges, responding in his defense that on December 5, 1991, he was compelled to use force on one of his students, Alex A., in self defense, after being attacked. Similarly, on May 8, 1989, the plaintiff was involved in an incident in which a disruptive student, Rudy P., had to be physically escorted out of classroom in an effort to maintain order.

 Taylor requested a hearing on the matter pursuant to New York Education Law § 3020-a before a three member panel (the "Panel"). The Panel was composed of one member chosen by each party with the third member being a neutral party agreed upon by the other two. The Panel held hearings for eight days: on April 6, 7, and 8, May 2 and 28, July 21 and 22, and October 15, 1992. Pursuant to these hearings, the charge regarding the May 8, 1989 incident was dismissed. However, the plaintiff was found to have used excessive force in the December 5, 1991 incident. As a result, the Panel suspended Taylor for one year without pay, finding the penalty of discharge too severe.

 The plaintiff's subsequent appeal to the New York Commissioner of Education was dismissed and this lawsuit was filed in federal district court. Although the separate causes of action contained in the Complaint are difficult to categorize, they appear to break down as follows:

2. That defendants Mauro and Rooney conspired in violation of 42 U.S.C. § 1985(3) to deny the plaintiff his equal protection rights by enforcing the Board of Education Policy 5131 against him, while not enforcing the policy against his white peers committing similar acts;
3. That by singling the plaintiff out for disciplinary action based on his race, defendants Mauro and Rooney violated New York Executive Law § 296.
4. That by charging him with misconduct as result of the May 8, 1989 incident, the defendants Mauro and the School Board were harassing him based on his race in violation of the 42 U.S.C. § 1983;
5. That the defendants Mauro and the School Board discriminated against him in violation of New York Executive Law § 296;
6. That the defendants-Panel members Townley and Caramore's decision to suspend the plaintiff was against the weight of all the evidence set forth at the disciplinary hearing, was arbitrary and capricious, and unlawfully based on the plaintiff's race;
7. That the plaintiff was singled out for discipline in violation of the First and Fourteenth Amendments because of his open criticism of the School Board; and
8. That the plaintiff was singled out for discipline because of his age and seniority within the School District in violation of New York Executive Law § 296.

 The School System defendants move to dismiss the Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) on a variety of grounds discussed below. The defendants Dr. Townley and Dr. Caramore move for summary judgment pursuant to Fed. R. Civ. P. 56 or alternatively to dismiss for failure to state a claim pursuant to Rule 12(b)(6). For the sake of clarity, the Court will treat both motions as motions to dismiss. While the Court is mindful of the procedural distinctions between these two motions, the Court finds that these distinctions will not affect the outcome in this case. The plaintiff responds that he has sufficiently stated his claims, and that the defendants' motions should be denied.


 1. The Rule 12(b)(6) Standard

 A complaint will be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); accord Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir. 1994); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). In addition, such a motion is addressed solely to the face of the pleading, and "the court's function . . . is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).

 In assessing the sufficiency of a pleading on a motion to dismiss, "all factual allegations in the complaint must be taken as true," La Bounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. ...

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