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Title: La Grande School District and La Grande Education Association
Date: June 1994
Arbitrator: Jack H. Calhoun
Citation: 1994 NAC 104

            STATEMENT OF FACTS

            The grievant, Dale Decker, is a teacher and counselor at La Grande High School.  Each semester since 1990 he has taught a nine-week psychology course to sophomores, juniors, and seniors.  As a supplement to the psychology textbook and other course materials, he has used an article published by the local newspaper dealing with the need for mental health facilities and other resources in the community.  The article was based, in part, on interviews the writer had with two parents of emotionally disturbed children in the La Grande community.  It named the parents of each child and the children.  One of the children named and identified as emotionally disturbed was Michael, the son of Jean DeRoest.  Michael, a sophomore, had singed up to take Mr. Decker's psychology class in the fall of 1993.  Ms. DeRoest also had another child who attended the school.

            On November 3, 1993, Roland Bevell, the high school principal, received a phone call from Ms. DeRoest expressing concern over the use of the article in the class her son was to attend.  She believed it could have an adverse effect on her children.  She said she had received telephone calls from parents and talked to students who wondered why the article that named her son was to be used in a class he was to attend.  She mentioned to Mr. Bevell that kids had come to her home and taunted Michael about the article and its content.  Ms. DeRoest told Mr. Bevell she wanted the use of the article discontinued because Michael and her daughter were to begin the psychology class the following week.

            Mr. Bevell talked to Mr. Decker about the concerns Ms. DeRoest had expressed.  Mr. Decker offered to edit the names out of the article, but he did not agree to discontinue its use.  Mr. Bevell informed Ms. DeRoest of Mr. Decker's position.  She was not willing to agree to the use of the edited article as proposed by Mr. Decker.  Subsequently, her children withdrew from the class.  No written complaint was filed by Ms. DeRoest.

            Mr. Bevell met again with Mr. Decker and informed him of Ms. DeRoest's decision.  Mr. Decker was not willing to remove the article from use in his class.

            On November 15, 1993, Mr. Bevell issued a memorandum to Mr. Decker directing him to stop using the article as part of his classroom instruction.  He also reminded Mr. Decker of Ms. DeRoest's request and her concern over the detrimental effect the article might have on her son.  He gave a copy of the memorandum to Kathryn Hendrich, president of the La Grande Education Association.  She normally would not receive copies of correspondence between the principal and a teacher.  Only where discipline is involved does she receive such correspondence.

            Mr. Bevell issued the directive because of the potential detrimental effect of the use of the article on Michael and possible liability to the school district.  The emotional disability suffered by Michael had previously caused problems in the school district.  However, since he had come to high school he had developed a good attitude and was getting along better.  Mr. Bevell thought the contents of the article had the potential of causing an adverse impact on Michael had it been used in the class he was to attend.

            There were other articles Mr. Decker could have used to supplement the textbook and to demonstrate the need for mental health resources in the community.  He wanted to use the article in question because it was about the local community and was, therefore, relevant to his class.  The article had already been circulated throughout the community and was readily available to students and others in the school library.

            Mr. Bevell met with Ms. DeRoest, her attorney, and the District's personnel director on November 16, 1993.  When told that the article would not be used, they were satisfied.

            At a meeting on November 18, 1993, attended by Mr. Bevell, Mr. Decker, and Ms. Hendrich, Mr. Bevell said he did not get a written parent complaint from Ms. DeRoest because he had forgotten to do so.

            In response to Mr. Bevell's directive, Mr. Decker asked that the wording of the November 15 memorandum from Bevell be changed to delete the sentence "I am directing you..."  The following day, on November 19, 1993, Mr. Bevell responded by denying Mr. Decker's request.  Mr. Decker initiated a grievance the same day.

            The District has written policies related to, among other things, processing citizen challenges of instructional materials, including supplementary materials, and academic freedom.  The policies are not part of the parties' collective bargaining agreement, although the policy on academic freedom is essentially the same as the academic freedom provision in the agreement.

            The policy on challenging instructional material sets forth a procedure to be followed when a citizen objects to the use of materials he believes are adverse to his interests.  The procedure requires a written response by the citizen to a number of questions on a form.  When requested by Mr. Bevell on December 17, 1993, to complete the form, Ms. DeRoest, through her attorney, refused to do so because the article she was concerned about had already been removed from use in the psychology class.

            As a result of the November 15th memorandum from Mr. Bevell directing him to discontinue use of the article, Mr. Decker has not received an adverse evaluation.  The directive has not been placed in his personnel file, nor has he been reprimanded or warned.

            Mr. Bevell considered Ms. DeRoest's objection to the use of the article as a request to discontinue its use because of the potentially adverse impact on her son, not as a complaint by her against Mr. Decker as a teacher.  He did not intend to give Mr. Decker a negative evaluation, impose discipline, or place a summary in Mr. Decker's personnel file.  Mr. Decker's performance as a teacher was not at issue.

            While handling Ms. DeRoest's request and Mr. Decker's objection to her request, Mr. Bevell consulted Carl Zeigler, personnel director, and he consulted the District's attorney.  The attorney advised him to direct that the use of the article be discontinued because of the potential liability to the District.  A special education supervisor told Mr. Zeigler there was potential harm to Michael if the article remained in use.  Ms. DeRoest's attorney had expressed concern that there had already been harm done to Michael by other children, who did not previously know of his emotional problem, remarking on his condition as described in the article.

POSITIONS OF THE PARTIES

The Association

            The Association contends that the academic freedom provision in the collective bargaining agreement limits the District's intrusion into the affairs of the classroom and that it may only intervene if the material in question is not relevant and is detrimental to the school system.  If the District is allowed to use a parent complaint and threatened lawsuit, without following its policies and procedures, to deny academic freedom rights, such rights become meaningless.  In agreeing to the academic freedom provision, the District impliedly agreed to deal with the impact of parent challenges.

            By its failure to follow its own policy and procedure, the District was remiss in its obligation to the teacher, who should be involved in the decision process.  The Association maintains that the District's inaction amounts to a disregard of the academic freedom provision.  Since the District agreed to the provision, it cannot later decide to ignore the process that has been in place to deal with challenges to teachers' instruction and materials--their academic freedom.

            Mr. Decker was not given the opportunity to explain and defend his use of the article before the parents and school board.  The District made no apparent effort to obtain meaningful information from him prior to directing him not to use the article, the Association argues.

            The Association contends that principles of contract construction require decision makers to exercise discretion in a reasonable fashion and not to render meaningless a right secured by contract.  Management cannot exercise its rights in an arbitrary, capricious, or unreasonable manner.  Its decision must be based upon reason and principle, not snap judgments made before the facts are reviewed.

            The directive to Mr. Decker to discontinue use of the article was disciplinary, the Association urges, because it denied him his right of academic freedom.  Academic freedom is a highly valued teacher right, which, when denied, amounts to a form of discipline.  Discipline involves any form of instruction designed to influence an individual to conform to a certain cause of action.  It is instruction, comprehending the communication of knowledge, and training to observe and act in accordance with rules and orders.

            Mr. Decker had no written notice of the charges and opportunity to responde, the Association maintains.  The charges were that his use of the article was detrimental to the school.  The District was obligated to provide him with the written parent complaint on its own form.  It failed to do so.  The failure to do so violates the discipline provision of the contract.

            The Association also alleges the District violated the complaint procedure of the agreement when it failed to have Ms. DeRoest fill out a parent complaint because she was complaining about Mr. Decker and his use of the article.  The Association suggests Mr. Bevell acknowledged he failed to inform Ms. DeRoest of the need to place the compliant in writing.  The District should not be heard to argue that challenges to a teacher's judgment related to instructional materials is not part of the complaint procedure.  The District considered the complaint relevant to Mr. Decker's performance because Mr. Bevell conferred with him and took disciplinary action against him.  The District refuses to say whether it will place a record of this matter in Mr. Decker's personnel file.

            In the Association's view, the agreement contains a management rights provision, but those rights are limited to those management rights not expressly delegated by the agreement.  The District has the right to select textbooks and teaching materials; however, it is limited by the agreement and the practices and procedures of the parties related to the implementation of provisions of the agreement.  If the District changes practices and procedures related to challenges of materials, it must notify the Association because such changes impact the academic freedom provision of the agreement.

The District

            The District begins it argument in defense of its actions related to the directive to Mr. Decker by discussing the concept of academic freedom in general terms.  No consensus has been developed by the courts on the limits of academic freedom.  The key to determining where the line is drawn between academic freedom and the right of a school board is found in locally adopted policies and regulations.  Generally, in the absence of such policies and regulations, a teacher will be less restricted in his discretion than if the school board has adopted specific policies and rules for the teacher's use.

            The concept of academic freedom is not absolute and should not be held to be a valid defense to the District's directives that are based on sound educational notions and concerns.  The directive in question was rooted in a legitimate educational concern and was not the product of personal beliefs, the District argues.  The management rights provision of the agreement provides that the District retain the right to select textbooks and other teaching materials and to determine class schedules, the hours of introduction, the co-curricular activities, and the duties, responsibilities, and assignment of the teachers.

            The District contends that the academic freedom provision itself contains its own qualifications and restrictions.  Material used by the teacher must be relevant to the course and it must not be detrimental in any way to the school system or the educational program.  The grievant's use of the article was potentially damaging to the system and the educational program because it would harm a student who was, moreover, a special education student.  Possible damage or injury to an special education student would subject the District to the threat of litigation and require it to mitigate its liability by issuing directives to stop the potential damage.

            The grievant was not prevented from making the particular point in his class that he wanted to make.  He could have used other available materials to make his point.  He was simply directed not to use a particular article that could have damaged or injured a student, the District argues.

            While the article in question is part of the public domain, that is not relevant to the issue.  The issue is whether the use of the article could cause damage or injury to the student, in the District's view.

            The District contends that the complaint procedure provision of the agreement has not been violated.  The District is only compelled to process a complaint if it intends to use it as the basis for an evaluative judgment, a disciplinary action, or negative entry into the personnel file.  The District did not and does not intend such use of the concern raised by Ms. DeRoest.  No disciplinary or evaluative action against Mr. Decker over the dispute between the District and him will be taken.  Nothing has been entered into his personnel file and no entry is contemplated.  Since the matter was not processed as a compliant, it cannot be used against the teacher.

            As to the alleged violation of the discipline provision of the agreement, the District maintains there was no discipline imposed.  There was no threat of adverse consequences or a prediction of a penalty for future violations contained in the directive.  Even if the directive were construed to be disciplinary in nature, the District had just cause to issue it.

OPINION

            The primary focus of this dispute is on the issue of academic freedom as the term is used in the parties' contract.  For the most part, the facts are not in dispute.

            It is basic to the arbitration process that the arbitrator's function is to ascertain the intent of the parties as it is reflected in the language of their collective bargaining agreement.  Where the language is clear and unambiguous, the language itself is the best evidence of intent.

            In the instant case, the pertinent language of Article 6, section 4, is clear and straightforward.  Teachers cannot be prevented from, among other things, introducing controversial material into a classroom provided it is relevant to the course and is in no way detrimental to the school system or educational program.  The right to introduce controversial material is not unqualified.  First, it must be relevant and then it must not in any way be detrimental to the system.  The word "detrimental" is qualified by the phrase "in no way," meaning not at all, not even slightly.  It is clear that the District has the right to prohibit the use of some controversial material, namely that which is in some way detrimental to the school system or program.

            The District has reserved to itself, under Article 4 of the Agreement, the right and authority to select teaching materials and determine the use of teaching aids.  That right is limited only by the express terms of the Agreement.  Article 6 contains the limitation.  No teacher may be prevented from introducing controversial material into a classroom, provided it is in no way detrimental to the school system.  Conversely stated, if the material is in any way detrimental to the school system, the District may prevent its use.

            The highly valued teacher right to academic freedom as secured contractually by the La Grande teachers is not an unlimited right.  To the contrary, the plain language of the provision in question expressly and profoundly limits their freedom to use materials that are not in any way detrimental to the system.  If the material is detrimental, the District has expressly reserved the right to prevent its use in the classroom.

            The question then is whether the use of the newspaper article in question during the class in which Michael DeRoest was to be enrolled would have been detrimental to the school system.  My review of the evidence on the record and the arguments of the parties persuades me to conclude Mr. Bevell had good reason to believe it would have been detrimental to the student and to the school.  The use of the article during the time period in question was properly prohibited by the District under the contract.

            The detriment to the District lay in the potential harm the use of the article could have had on the student, who had severe emotional problems.  The District's responsibility is to promote and protect the interests of its students.  It would have been remiss in carrying out that responsibility had Mr. Bevell failed to respond to Ms. DeRoest's concern by discussing the problem with Mr. Decker, Mr. Ziegler, and the District's attorney.  He made a full and adequate inquiry into the problem, came to a well-reasoned conclusion, and acted accordingly.  Contrary to the Association's assertion, the record does not support the conclusion that the District had a knee-jerk or snap-judgment reaction to the problem.  It acted reasonably and in accordance with its contractual rights and obligations.  While the article in question had been circulated widely in the community as part of the local newspaper's normal circulation, that fact does not serve to lessen the potential for harm to Michael had the article been used in the confines of a classroom where his peers all had specific knowledge of his emotional handicap.

            The District balanced the interests of the student against the rights of Mr. Decker under the academic freedom provision of the agreement and properly concluded its duty was to protect the needs of the student.  Even so, the District did not prohibit the use of other like materials that were available to Mr. Decker.

            The Association argues that the District should have followed its own policies and procedures in handling Ms. DeRoest's complaint.  It contends that the District disregarded the academic freedom provision by its failure to do so.  It is true that Mr. Bevell neglected to have Ms. DeRoest complete and sign the District's policy form that is used when a citizen wishes to challenge instructional materials.  His failure to do so, however, did not violate any contractual right of Mr. Decker.  The policy deals with challenges to materials, not teachers.  The contract sets forth the process to be followed when complaints about teachers are received and acted upon by the District.  There is no evidence on the record to support the conclusion that the material challenges policies of the District are expressly or impliedly a part of the collective bargaining agreement.  The procedure to be used when a teacher believes his academic freedom is infringed upon is the grievance procedure in the contact, the same procedure that was used to bring this matter to arbitration.

            Mr. Decker's due process rights related to disputes under the academic freedom provision of the agreement are found in the agreement itself under the grievance procedure provision, not in unilaterally set District policies.  Regardless of what the Association describes as reasonable expectations, when a teacher's performance is challenged, his right to redress is founded in the agreement.  Where challenges are made to materials, District policy prevails.  Although the District failed to follow its own policy related to the challenged materials, such failure did not violate the agreement.  At the time Mr. Bevell issued the directiive, the District was under no contractual obligation to let Mr. Decker explain and defend his use of the article before the parents and school board, as the Association urges.  Still, the District, through Mr. Bevell, made considerable effort to obtain his views and argument prior to making its decision to issue the directive.  He had several discussions with Mr. Bevell prior to the time the directive was issued.

            Article 8 of the agreement contains the discipline provision. It prohibits the District from imposing discipline without just cause.  The concept of discipline as it is generally used in the formal union-management setting implies an adverse action taken by an employer against an employee to correct conduct or to impose punishment for misconduct.  For an action to be considered disciplinary, it must entail a threat of adverse consequences or predict a penalty for future violations of rules and serve to damage the employee's current standing as an employee.  Penalties and punishment or the unequivocal threat thereof are critical elements of discipline where the contract imposes a duty on the employer to show just cause for its action.  The term "just cause for discipline" suggests a different meaning of the word "discipline" than a simple corrective measure engaged in by an employer that has no substantial adverse impact on, or threat to, the employee's prospect for continued successful employment with the employer.  Where no damage has been proved and no substantial adverse consequence identified, the conclusion is compelled that no disciplinary action took place.

            The directive to Mr. Decker, which is the focus of this case, had no substantial adverse effect on his successful employment with the District, nor did it pose a threat thereof.  Mr. Bevell has not given him an adverse evaluation, nor does he intend to do so over the dispute on the use of the article.  The directive is not a part of Mr. Decker's personnel file, and he has not been reprimanded or warned.  In other words, no adverse personnel action was taken against him.  There is no evidence to show that he is not in as good standing with the District as he was previous to the time the directive was issued.  His performance as a teacher was never questioned.  Although Mr. Bevell did, in fact, give Ms. Hendrich a copy of the directive, which the Association contends indicates discipline, that in itself is not determinative of the discipline issue.  The fact that there was no substantial adverse consequences suffered by Mr. Decker is determinative of the question of whether discipline was imposed.

            The Association suggests that the denial of Mr. Decker's academic freedom amounted to discipline.  I have decided, for reasons set forth earlier, that he was not, in fact, denied his contractual rights under the academic freedom provision as those rights are qualified therein.  The District did not violate the contract by prohibiting his use of the article.

            The Association contends that since Mr. Decker had no written notice of the charges, his due process rights were denied.  However, there were no charges or complaints made against him.  Once Mr. Decker invoked the contract grievance procedure, he was afforded all his contractual rights to union representation, hearings, and other due process rights.  The call from Ms. DeRoest to Mr. Bevell about the use of the article was not a complaint against Mr. Decker and it was not treated as such.  There was no contractual obligation by the District to provide Mr. Decker with the parent complaint in writing because there was no complaint made against him.  The Association's argument in this regard carries over to the third and last issue in dispute.

            The last question raised is whether Article 27 of the agreement was violated by the District.  In pertinent part, the article states if a complaint is made against a teacher to the administration, it will only be processed if in the administrator's judgment it is sufficiently relevant to the teacher's performance to require a conference.  Two elements are critical in interpreting section C of the provision.  First, there must be a complaint against the teacher.  Second, the complaint must be relevant to the teacher's performance.

            The record is replete with evidence that Mr. Bevell did not treat the call form Ms. DeRoest as a complaint against Mr. Decker.  Contrary to the Association's contention, there was no complaint about Mr. Decker's performance.  The concern expressed was about the use of the article and its potential impact on Michael.  There was no requirement that the District furnish Mr. Decker with a written complaint for the reason that there was no complaint made against him.  Although Mr. Bevell acknowledged that he should have had Ms. DeRoest fill out a challenge to instructional materials form, he did not, as asserted by the Association, acknowledge he should have had her place a complaint against the teacher as the term "complaint against a teacher" is used in the agreement.  Mr. Decker's performance as a teacher was never questioned.

            There was no proof that the District intended to make a record in Mr. Decker's evaluation report of a complaint.  No record of a complaint was made in his personnel file, and no disciplinary action was taken as the result of a complaint.

            It is unnecessary to address in detail the parties' contentions related to the management rights provision in the agreement.  I have decided the issues in dispute based on the facts that are supported by the record and on the clear meaning of the provisions in question.  It is clear, however, that the District has retained its right to select teaching materials and determine the use of aids.  That right was not expressly given up in the parties' collective bargaining agreement.  In fact, it was expressly reserved where such materials are detrimental to the school or program.

            In summary, I find that the District did not violate Article 6, Article 8, or Article 27 of the collective bargaining agreement when it directed Dale Decker to cease using the newspaper article.  Accordingly, the grievance is denied.

            Dated this _____ day of June 1994.

                                                                        Jack H. Calhoun

03-94OR

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