Title: La Grande School District and La
Grande Education Association
THE MATTER OF THE
GRANDE EDUCATION ASSOCIATION,
GRANDE SCHOOL DISTRICT,
Held April 8, 1994
FOR THE UNION:
Bruce A. Zagar
Garrett, Heman, Robertson, Paulus
Jennings & Comstock, P.C.
P.O. Box 749
City, OR 97814
Salem, OR 97308-0749
The La Grande Education Association and La Grande School District No. 1
are parties to a collective bargaining agreement that provides, among other
things, academic freedom for teachers. On
November 15, 1993, Dale Decker, the grieving teacher herein, received a
memorandum from the high school principal directing him to cease using a
certain newspaper article in his psychology class. Mr. Decker filed a grievance over the directive after
informal attempts at resolution of the matter failed.
A hearing was held on April 8, 1994.
The parties submitted post-hearing briefs, the last of which was
received on May 16, 1994.
The parties agreed the issues were properly before the arbitrator for a
decision on the merits of the case. They
were unable to agree completely on the framing of the issues; therefore, I
have found them to be as follows: Did
the District violate Article 6, Article 8, or Article 27 of the collective
bargaining agreement when it directed Dale Decker to cease using the newspaper
article that is in question here. If
so, what is the proper remedy?
The following provisions of the parties' collective bargaining
agreement are relevant to the issue in dispute:
Article 4 -- District Rights
The Board on its own behalf and on behalf of the electors of the
District hereby retains and reserves unto itself all powers, rights,
authority, duties and responsibilities conferred upon and invested in it by
the laws and the Constitution of the state of Oregon, and of the United
States, including, but without limiting the generality of the foregoing, the
To select textbooks and other teaching materials and determine the use
of teaching aids;
The exercise of the foregoing powers, rights, authority, duties and
responsibilities of the Board, the adoption of policies, rules, regulations,
and practices in furtherance thereof, shall be limited only by the specific
and expressed terms of this Agreement.
6 -- Certificated Employees Rights
The Board and the Association agree that academic freedom is essential
to the fulfillment of the purposes of the district.
No certificated employee shall be prevented from introducing political,
religious, or other controversial material, including his/her personal
opinion, into a classroom presentation and discussion, providing that such
material is relevant to the course content and is in no way detrimental to the
school system or to the educational program.
certificated employee shall make every effort to ensure that all conflicting
opinions are presented and that the topic and material used will be
appropriate to the maturity level and intellectual ability of the students.
7 -- Grievenace Procedure
"Grievance" means a claim by a certificated employee... based
upon the interpretation, application, or violation of this Agreement.
8 -- Discipline
No teacher will be disciplined, reprimanded, reduced in rank or
compensation, suspended, or demoted because of disciplinary reasons without
just cause. All information which
forms the basis for disciplinary action shall be made available to the teacher
and the teacher shall have a reasonable opportunity to respond thereto.
Action taken pursuant to this section shall be subject to the grievance
procedure. Just cause in this
Agreement shall mean:
The District, before administering the discipline, must make an
objective investigation in which the employee has written notice of the
charges and an opportunity to refute the charges.
In order for discipline to be administered, the District must have
substantial evidence or proof of the charge.
The severity of the discipline shall be reasonably related to the
seriousness of the offense and the order or rule must reasonably be related to
the orderly, efficient, and safe operation of the District and be administered
The employee shall have the right to have representation of his/her
choice and advance notice of all meetings which might reasonably be expected
to lead to disciplinary action.
Employees shall be given forewarning of the probable disciplinary
consequences of their conduct, except for those offenses (including theft,
insubordination, and intoxication on the job), which by common knowledge, may
properly be expected to be disciplined.
Final decision(s) shall be rendered in writing.
27 -- Complaint Procedure
If a complaint is made against a teacher to the administration, such
complaint shall be processed under the following circumstances.
If an administrator or supervisor intends to make a record in the
evaluation report of a complaint received concerning the teacher;
If an administrator or supervisor intends to place a record of such
complaint in the teacher's personnel file;
If, in the administrator's or supervisor's judgment, such complaint is
sufficiently relevant to the teacher's performance as to indicate the
desirability of a conference; or
If the administrator or supervisor intends to take disciplinary action
against the employee as the result of a complaint.
Pursuant to Section 1, above, a conference shall be held with the
teacher within ten (10) working days after the complaint is made to the
administration. At the
conference, the teacher will be presented with the complaint in writing.
A complaint not signed by an adult complainant shall not be the basis
for any disciplinary action. The
teacher has the right to have a representative present during the conference.
Any such complaint which the administration chooses not to discuss with
the teacher or which is not discussed within the required time shall not be
considered in the teacher's evaluation, placed in the teacher's personnel
file, and shall not be used against the teacher in any subsequent action by
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.
OF THE PARTIES
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
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 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.
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
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
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
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