(CN) - A gay librarian who was suspended amid accusations that he touched students inappropriately does not have a discrimination case, a New York appeals court ruled.
Christopher Asch, a 20-year veteran librarian and media specialist at the magnet school Stuyvesant High School, was accused of touching students in a way that made them uncomfortable between 2005 and 2008.
The Board or Department of Education for the City of New York launched an investigation that also probed whether he failed to get permission to take students on a Quiz Bowl trip to Boston.
Several male students accused Asch of rubbing their backs, shoulders and spines; whispering into one student's ear; squeezing one student's stomach, striking two students on the buttocks with a rolled-up newspaper; and lifting a student's leg and rubbing it while making an "open mouth, insert foot" joke.
One student testified that Asch touched him inappropriately about once every other week over the course of three school years.
Asch presented several student witnesses who said they did not find his touching to be sexual. A female librarian testified that she sometimes touched students on the arm or whispered to them when she needed their attention.
Asch also denied touching students' hair and stomach or hitting anyone with a newspaper.
The arbitration hearing officer rejected the school board's recommendation that Asch should be fired and instead suspended him for six months. He was also ordered to attend counseling about appropriate physical boundaries with students.
Asch successfully petitioned the New York County Supreme Court to vacate the suspension, with a judge finding that the ruling has the possibly unintentional effect of discriminating "against the petitioner (an openly gay male)." (Parentheses in original.)
The Appellate Division's Manhattan-based First Department reinstated the suspension Tuesday, stating that Asch was not a victim of discrimination.
"This determination was based on upon the erroneous conclusion by the motion court that petitioner's conduct was 'the same as the heterosexual female librarian' who was not disciplined for such conduct," the unsigned ruling states. "The flaw in this reasoning, however, is that there is absolutely nothing in the record to support this conclusion."
"The female librarians categorically denied ever squeezing a student's shoulder, touching a student's hair or running their finger down a student's spine," the justices added. "In fact, as noted, one of the female librarians testified unequivocally that such conduct is not only inappropriate but would be something she would immediately report to supervisors."
The record is "completely devoid" of evidence that bias against Asch's sexual orientation motivated the charges or suspension, according to the ruling.
As such, the motion court should not have overruled the hearing officer's decision, the court found.
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