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Title: Board of Education of Baltimore County and Dr. Bertram Miller
Date: November 3, 2005
Arbitrator:  Edward J. Gutman
Citation: 2005 NAC 119

IN THE MATTER OF THE ARBITRATION BETWEEN


Board of Education of Baltimore
County, Employer

AND

Dr. Bertram Miller, Grievant

Teachers' Association of
Baltimore County, Dr. Miller's
Representative

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GRIEVANCE: Dated March 16, 2004

OPINION AND AWARD

ARBITRATOR: Edward J. Gutman

AWARD DATE: November 3, 2005

 

 AWARD

THE PARTIES

Grievant - Dr. Bertram Miller

Employer - The Baltimore County Board of Education (The Board) or Baltimore County Public Schools (A BCPS)

Dr. Miller's representative - Teachers Association of Baltimore County (TABCO)

BACKGROUND

On November 20, 2003, during a high school  math class he was teaching,  Dr. Bertram Miller, compared the fame of Pythagoras to Jesus, Mohammed and Moses.  He was given a written reprimand by his Principal, Ms. Diane L. Garbarino for making a religious reference unrelated to math instruction after an earlier warning about such classroom comments and filed a grievance protesting the reprimand.  His grievance was denied and this arbitration followed.

The Undersigned was appointed as Arbitrator by agreement of the parties.  An arbitration hearing was conducted at the TABCO office in Towson, Maryland on September 13, 2005.  During the course of the hearing all witnesses testified under oath, the parties were afforded full opportunity for the presentation of evidence, examination and cross-examination of witnesses and oral argument.  A stenographic record of the arbitration hearing was made and a transcript of the proceedings was provided to the Arbitrator.

The parties elected to file post-hearing briefs. The Arbitrator received timely briefs from both parties. They have been carefully considered.

THE GRIEVANCE

The grievance was filed by Dr. Miller on March 16, 2004, and alleged that the letter of reprimand was issued without just cause and, therefore, violated his rights under Article VI, Section 6.3 of the 2003-2007 Master Agreement between TABCO and the Board.  As a remedy, Dr. Miller seeks withdrawal of the letter of reprimand. (Board Exhibit 6)

THE LETTER OF REPRIMAND

The letter of reprimand recited (1) that Ms. Garbarino had previously investigated parent/student complaints that Dr. Miller was spending too much time talking about religion, ethnic groups and other people/subjects that had nothing to do with the teaching of math; (2) that she had met with him and his Department Head, Ms. Goodson, on November 18, 2003, (later corrected to be November 17, 2003) and directed him to stop making religious comments or references in his classroom; and (3) that on November 20, 2003, in another conference with her and Ms. Goodson, Dr. Miller had shared with them that he had made reference to three religious leaders in a class discussion that day.

The reprimand concluded that Because (Dr. Miller) failed to follow (her) previous directive to keep the focus of instruction on math she was presenting him this written reprimand as disciplinary action, and that should he continue to make religious/ethnic references in class and/or conduct classroom discussions that are unrelated to math he would be subject to further disciplinary action. (Board Exhibit 1)

THE ISSUE

The parties agreed that the issue raised by the grievance is whether the reprimand of December 22, 2003, violated Dr. Miller's rights under Section 6.3 of the CBA; that is, whether he was reprimanded without just cause, and if so what should the remedy be to rectify the violation.    

PERTINENT PROVISION OF THE CBA

The only section of the Master Agreement that was introduced as an exhibit in the proceedings and referenced by the parties as relevant to this matter was Section 6.3. It states: ANo teacher shall be disciplined, reprimanded, reduced in compensation, or deprived of any professional advantage as defined in this Agreement without just cause.  (Board Exhibit 11) 

POSITION OF THE PARTIES

THE BOARD

 The Board contends that Dr. Miller was given the directive of November17, 2003 by Ms. Garbarino as a result of the severity of student complaints about his >unconstitutional and erratic' behavior.  The Board defends the reprimand on two grounds - (1) following the November 17, 2003 directive, Dr. Miller made  statements in his classroom that were unrelated to math instruction, and (2) were discriminatory, unconstitutional and precluded effective instruction. 

More specifically, the Board contends that the evidence demonstrates just cause for the reprimand  because of Dr. Miller's clear violation of Ms. Garbarino's directive to refrain from making religious references in class following his blatant disregard of constitutional and curricular requirements. In addition, the Board contends that the reprimand was justified because the Board has a constitutional obligation to ensure that religious neutrality is maintained.

In support of its argument, the Board cited the Maryland State Board of Education's decision in Norman L. Nichols v. Caroline County Board of Education , MSBE Op. Mo.03-26 (2003); Wiley v. Franklin, 486 F. Supp 133. (E.D. Tenn. 1979); HRW Geometry, Lesson 5.4, The Pythagorean Right  Triangle  Theorem, pages 267-269; and BCPS Geometry Curriculum Guide (June 1999), Pages 122-123.

TABCO

The Board did not have just cause to reprimand Dr. Miller.  The comment for which  he was given the written reprimand was neither a religious reference nor a classroom discussion unrelated to math but rather an assessment of the fame of an important historical figure in the arena of mathematics relative to the fame of other highly important historical figures. (TABCO brief p. 6-7)

THE EVIDENCE

Set forth in this Section is a summary of the evidence sufficient to understand the parties' positions. Other facts and evidence may be noted in the Discussion below to the extent knowledge of either is necessary to understand the Arbitrator's decision.

1.         Ms. Garbarino's November 17, 2003, Directive

                        Ms. Garbarino testified that on November 17, 2003, which was ninth-grade parent visitation day of American Education Week, a parent reported to her that she had visited Dr. Miller's ninth grade GT geometry class and that he was dressed in a ghostlike-type outfit, including a hood that covered his face.  He had written on the board that he was not talking that day in observance of Students Against Destructive Decisions (SADD) Alcohol Awareness Week.  The parent told Ms. Garbarino  that she had taken time off from work to visit on this parent visitation day to observe the instruction and Dr. Miller's engagement in the classroom because she had concerns about his getting off topic. According to Ms. Garbarino's testimony, the parent A mentioned a conversation that her daughter had described to her at length that dealt with driveways. (Tr. 13)

Ms. Garbarino testified that she received another call from a parent that day.  She did not explain what that parent's call involved but afterwards went to observe Dr. Miller's class.  Although he was no longer wearing the hood, he was dressed as the parent had described and had written across the board that he was not speaking in class that day. Ms. Garbarino asked Dr. Miller to come to her office during the next period.  When she returned to her office, she had a message that another parent had telephoned stating that he was concerned about religion in the classroom. (Tr. 14-15) 

Dr. Miller reported to Ms. Garbarino's office as she had requested.  Ms. Goodson, the math department chairperson, was also present.  Ms. Garbarino confronted him with the parent complaint about the lengthy conversation on driveways.  He told Ms. Garbarino that he could not recall such a conversation.  Ms. Garbarino had no further information about that and moved the discussion to the parent complaint about Dr. Miller remaining mute on parent visitation day.  (Tr. 15-16)   He explained that he was participating in the SADD activities for the week and that this was Ghost Out Day when typically students would paint their faces white every so many seconds to indicate a teenage death related to alcohol.[1] Ms. Garbarino asked him if the embroidery on the clothing he was wearing was in Hebrew and he told her it was.  She told him to remove the clothing and leave it in her office to avoid any accusation that it had any connection with religion, and he did.

 Next, Ms. Garbarino asked Dr. Miller whether he knew anything about the parent's concern of religion in the classroom.  He explained that he had a discussion in class starting with the Jewish star and it moved into Christians and Muslims and Jews, and this led to his making a remark that there were one billion Christians, one billion Muslims, and only a few million Jews in the world.  A student asked why there were so few Jews and Dr. Miller responded that the reason was forced conversion. (Tr. 17-18)

Dr. Miller also volunteered to Ms. Garbarino that he had held another classroom reference that a parent might find upsetting which was started when he remarked during a discussion about 9/11 that the hijackers of the 9/11 airplanes were Muslims.  A Muslim student in the class confronted him about both the forced conversion and 9/11 comments.

At the conclusion of their conference, Ms. Garbarino verbally directed Dr. Miller to stay away from making religious commentary or references in class; and told him that he must stay on topic.  She also reminded him that following an observation the year before, she had cautioned him about storytelling and stressed that he must stay on topic; that off-topic discussions interfere with instruction. (Tr. 19)    She explained that teaching Math is sequential in nature, and since the students move from one concept to another, it is important that math teachers stay on topic as much as possible. (Tr. 20)  

Later during the week that Ms. Garbarino gave the directive to Dr. Miller, she collected statements from students confirming discussions in Dr. Miller's classroom. (Board Exhibit No. 2: Tr. 19-20)

2.         The Reprimand

On November 20, 2003, Ms. Garbarino and Ms. Goodson held a second conference with Dr. Miller.  The purpose of this meeting, according to Ms. Garbarino's testimony, was to ask him for a written statement. In the course of the conference, he volunteered that during a discussion of the Pythagorean Theorem in class that day, he had made the statement that Pythagoras was Aright up there with other famous people and named Mohammad, Jesus, and Moses.  Ms. Garbarino responded that was a violation of her directive of November 17 just to keep instruction only on math and avoid comments that were related to religion. (Tr. 21-22)  

On December 3, during parent conference night, a parent approached Ms. Garbarino and shared concern about the geometry class and conversations taking place on O.J. Simpson. However, the parent did not give her a date when these conversations allegedly occurred. (Tr. 22) 

The letter of reprimand was issued by Ms. Garbarino on December 22, 2003.  She testified that she based it partially on the December 3rd comment. However, on both direct and cross examination, she acknowledged that she did not know when the conversation took place (Tr. 23) and that it would Abe safe to say that neither she nor Dr. Miller had any idea whether the alleged O.J. conversations reported to her by the parent on December 3 were made before or after November 17th. (Tr. 28)  [2]

On cross examination, Ms. Garbarino clarified that the reprimand was not based on Dr. Miller's classroom behavior before November 17, but rather his statement comparing Pythagoras to Jesus, Mohammed and Moses despite her directive of November 17. (Tr. 30)   Finally, on cross examination, Ms. Garbarino confirmed that no written reprimand was issued to Dr. Miller for his conduct prior to November17; that the only conduct that her written reprimand addressed was his comment about Pythagoras, the parental complaint on December 3 and being off topic in math class. (Tr. 52-53) 

3.         Dr. Miller's Testimony

Dr. Miller testified that during his November 17 meeting with Ms. Garbarino and Ms. Goodson, he explained that the references relating to religion that he made to his class on November 17, 2003, began during the solution of a problem which entailed the rotation of an equilateral triangle through 60 degrees on top of another triangle.  He noted that the rotation of the triangle in this manner formed a Jewish star. He then demonstrated to the class how two other geometric figures could become another symbol - the crucifix.  He also referenced the crescent moon of the Muslim faith and discussed the geometry of the three symbols.  (Tr. 65) He commented about the number of Muslims, Christians and Jews in the world and this led to a further discussion initiated by a student about why there were so fewer Jews, and he replied that Jews do not practice forced conversion.  Ms. Garbarino responded that Awe don't want to have religious conversations and discussions in class and he said Fine.  (Tr. 66-67;75) 

Dr. Miller testified that it was clear to him that he was not suppose to have religious conversations and discussions in class (Tr. 80) but when he had the follow-up conference with Ms. Garbarino  on November 20, 2003, to assure himself that he was following her directive, he volunteered, as an example, that he had commented to his class that day, that Pythagoras was one of the most famous people who ever lived, and that Aput him right up there with the most famous people, Jesus, Mohammed and Moses.  He described the reference as Aan offhand historical comment about the comparative level of fame of four historical figures, and that he has made the same reference to his students for 15 or 20 years. (Tr. 69-71)   No one had complained to him nor, as far as he knew, had a parent ever complained to Ms. Garbarino or other school officials about his Pythagoras comment. [3]

           4.         The Grievance Process

                        Level I

Dr. Miller's grievance came before H. Scott Gehring, BCPS Assistant Superintendent for the Northwest Area on April 29, 2004.    He testified that while Dr. Miller stated that the evidence upon which Ms. Garbarino issued the reprimand was hearsay, he asked Dr. Miller whether he had ever issued a religious reference or topic in the classroom.  Dr. Miller admitted that in response to a student's question, he had said that Jews do not practice forced conversion and other religions do.  This was the only off task statement that Dr. Miller admitted to making. Mr. Gehring testified that it was his conclusion that Dr. Miller had made religious references in the classroom and denied the grievance. (Tr. 33-34)

Mr. Gehring's written Level I response to the grievance referenced Ms. Garbarino's directive, another student complaint in December and his classroom comment that Jews do not practice forced conversion. It made no mention of Dr. Miller's Pythagoras comment 

Mr. Gehring concluded that Ms. Garbarino was well within her rights to write a letter of reprimand.  Given her prior warning, and your disregard of that warning, when the situation reoccurred she acted in a prudent manner.  (Board Exhibit 7)  On cross examination, however, he stated that Dr. Miller did not tell him when the comment in question was made, so he could not say whether it was before or after Ms. Garbarino's November 17th warning.  (Tr. 42-44) 

Level II

The grievance came before Daniel Capozzi, Manager, Office of Staff Relations for BCPS at Level II on October 15, 2004.  According to his testimony, Dr. Miller stated that he was appealing inaccuracies in the timeline of the Level I response.   Mr. Capozzi concluded that there was no inaccuracy, that Dr. Miller made the reference to Jesus, Mohammed and Pythagoras to his students following Ms. Garbarino's original oral directive; and that this reference was unrelated to the math curriculum.  Therefore, in his opinion, Dr. Miller contravened Ms. Garbarino's directive. On cross examination, he confirmed that his written decision dated October 26; (Board Exhibit 9) did not consider the December 3 complaint from the parent because there was no evidence to confirm when the classroom discussion took place. Rather, his decision was predicated entirely upon his conclusion that the November 20, 2003 Pythagoras comment, which Dr. Miller voluntarily admitted to making, was a violation of Ms. Garbarino's November 17, 2003 oral directive. (Tr. 46)

DISCUSSION

1.         Just Cause

Where, as in the present case, an employer's right to discipline an employee, in this case a reprimand, is limited by the contractual requirement of just cause, the employer has the burden of producing evidence to persuade the Arbitrator that just cause existed for the discipline.

The analysis to determine just cause starts with whether the employer produced clear and convincing evidence that the employee, in fact, engaged in the conduct that the employer cited as the basis for the discipline. If such evidence is produced, the employer must complete its burden by showing (1) that the employee was given adequate forewarning that the objectionable behavior would result in discipline; (2) that the discipline was reasonably related to orderly, efficient and safe operations; (3) that the discipline was administered following a fair and objective investigation of the facts; (4) that the discipline was reasonably related to the seriousness of the employee's misconduct with due regard for the employee's past work record; and (5) that the discipline was applied in a consistent and nondiscriminatory manner, that is, that similarly situated employees were treated similarly and disparate treatment avoided.

2.         Was Ms. Garbarino's Directive a Valid Exercise of Ms. Garbarino's Authority?

Doubtless, a school administration has a clear, compelling and defensible interest in adopting and enforcing rules requiring teachers to keep classroom discussions on topic and discouraging or even warning against making unrelated commentary or engaging in classroom discussions that might be controversial or disruptive, particularly if the commentary or discussions might lead to religious divisiveness or promote social conflict or even subject the school district to claims of First Amendment violations. 

3.         Did Dr. Miller Violate Ms. Garbarino's Directive?

The issue here, however, is not whether the directive was a valid exercise of the Principal's authority but whether Dr. Miller violated its terms by his Pythagoras comment.

 BCPS argues that Ms. Garbarino's warning was direct and that Dr. Miller violated it by engaging in unconstitutional conduct that directly impacted his ability to deliver effective instruction.[4]  In support of this argument, the Board's written brief cited to statements by students that Dr. Miller wasted valuable class time to express his personal religious beliefs, that he insulted other religions, that his tone was arrogant and militant and sarcastic, that he made a student mad by his comments.  As a result, he was directed to refrain from making religious references in class and to focus on math instruction. The Board's written closing brief states that Ms. Garbarino issued her directive based upon the severity of the students' complaints.  However, the only evidence that would support the  severity of the students' complaints were the three student statements in Board Exhibit 2, all of which were secured following her conference with Dr. Miller the morning of November 17, 2003 - two of which were dated after November 17, 2003.  

Nevertheless, however appropriate Ms. Garbarino's November 17 directive may have been, does not address the question whether Dr. Miller's comparison of Pythagoras' prominence in history to the historical prominence of Jesus, Moses and Mohammed was a religious comment or reference or that he failed to keep the focus of instruction on math.   Consequently,  to sustain the validity of the reprimand, BCPS must persuade the Arbitrator that Dr. Miller's statement, made to a geometry class that was studying the Pythagorean Theorem, that compared Pythagoras' fame to other historical figures, all names associated with religions, was a religious comment or reference that he should have reasonably understood violated his principal's directive to refrain from making religious commentary or moved the focus of instruction from the course of study contrary to the directive.[5]

                        Although Dr. Miller testified that it was clear to him from Ms. Garbarino that he was not supposed to have religious conversations and discussions in class (Tr. 80), he argues that her directive was unclear as to its precise breadth and scope, and, thus, did not put him on notice as to the conduct that was prohibited.  To support this argument, he explained that he told Ms. Garbarino about his Pythagoras comment in order to get clarification whether that type of comment was permissible under her directive. 

This raises the question - what did Ms. Garbarino mean by religious discussion.  The Merriam-Webster On Line Dictionary defines the word religious as relating to or manifesting faithful devotion to an acknowledged ultimate reality or deity <a religious person> <religious attitudes> or of, relating to, or devoted to religious beliefs or observances.  The religious references made by the teacher in Norman L. Nichols v. Caroline County Board of Education, and which supported his dismissal for willful neglect of duty fell squarely within this definition.  There, according to the State Board of Education's factual findings, the teacher had a history of infusing his personal religious beliefs into his lessons and assignments that had little to no relation to his subject matter.  He had been warned several time by his superintendent, after parent complains, to stop preaching to students or assigning work that was purely religious in nature with no connection to the course material.  The State Board found that the teacher was advancing his own religious beliefs and the teacher failed to offer any rational connection with curriculum. [6]

BCPS's written Closing Argument refers to its constitutional obligation to ensure that religious neutrality is maintained, and urges that the Grievant by his actions, violated the Board's obligation, asserting that the Garbarino reprimand was justified on constitutional grounds. As noted above, not until the Board's written closing argument did it defend the reprimand on constitutional grounds - not in the directive of November 17th, not in the conference with Dr. Miller on November 20th, not in the reprimand, not in the Level I or II grievance decisions and not in the hearing.

Nonetheless, the issue of the permissible limits of religion and religious references in public schools under the constitution requires examination.  Indeed, the issue has undergone and continues to receive intense focus in the courts and public discourse and continues to be the subject of debate beginning most notably with the school prayer case of Abington Township School District v. Schempp, 374 US 203 (1963).  However, in striking down prayer in the schools, the majority opinion of Justice Clark recognized that not all references or discussions of religion in the public classroom are improper, noting that Ait might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities.  Thus, the Court recognized that teaching religion in the context of history and other secular subjects was not only constitutional but desirable.

Another useful guide might be from the decision in Zorach v. Clausen, 343 U.S. 306 (1952).  There the Court held that released time from public school classes for religious instruction did not violate the establishment clause. Writing for the majority, Justice Douglas stated that there was no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.

Most recently, the Court noted again how historical context may save what may otherwise have a religious message.  In Van Orden v. Perry, 545 U.S. ___ (2005), although not decided in a public school setting, the Court held that while the Ten Commandments are religious, a monument inscribed with the Commandments which was one of a number of historical markers and other monuments surrounding the Texas State Capitol, has an undeniable historical meaning; and that simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.  As Justice Breyer stated in his concurring opinion, despite the Commandments' religious message, an inquiry into the context in which the text of the Commandments is used demonstrates that the Commandments also convey a secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law. The circumstances surrounding the monument's placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments' text as used on this monument conveys a predominantly secular message; and that while the underlying purposes of the First Amendment's Religion Clauses--to assure the fullest possible scope of religious liberty and tolerance for all  . . .  and to maintain the separation of church and state . . .  no exact formula can dictate a resolution.

Thus, contrary to the Board's concern that Dr. Miller subjected it to the risk of a constitutional violation, applying the principle enunciated in the Abington Township School District v. Schempp and Zorach v. Clausen dicta and the lesson of Van Orden mitigates if not wipes out any such risk.  Indeed, as Dr. Miller explained, in the study of history, students will come across the names of these three historical figures.  Thus, his comparison of these historical figures to his class, similar to the school prayer case dicta, was justified as worthy of study for literary and historic qualities for the purpose of impressing on students the stature of the historical figure who contributed to the development of the field of mathematics that they were studying.

Finally, there is the question whether any basis exists to conclude that Dr. Miller knew or  reasonably should have been expected to know ahead of time that the mere mention of the names of religious figures regardless of context would likely result in disciplinary action.  As he explained on cross examination, it was clear to him that he was not to have religious conversations and discussions in class.  However, he had been made the comment ranking Pythagoras, a historical figure who had played a major role in developing modern mathematical concepts, with three of history's most well known names in religion for the past 15 or 20 years in his classroom.  There had never been a complaint from either students or parents about the comparison. (Tr. 68).[7]   

AWARD 

Having heard the testimony and carefully reviewed the evidence and written closings in support of the parties' positions on the grievance, and in light of the above Discussion, the Arbitrator finds that BCPS did not sustain its burden of producing evidence to show just cause for the reprimand.  Dr. Miller's reference to and recitation of the names Jesus, Mohamed and Moses did not violate Ms. Garbarino's directive.  

While Dr. Miller had adequate forewarning that he was not to make religious commentary or make religious/ethnic reference,  Ms. Garbarino's directive did not elaborate nor explain the scope of her ban.  Indeed, common usage or understanding of these terms would include such behavior as promoting or undermining religious beliefs, doctrine or philosophy, promoting or undermining tolerance or religious freedom or describing religious faiths in their ecumenical perspective or, as in the Caroline County case cited by the Board, infusing  . . .  personal religious beliefs into  . . .  lessons  . . . , and advancing his own religious beliefs without tendering any rational connection with curriculum.  The Board argues in its brief that In the same way, Dr. Miller discussed religious subjects during math class, citing his numerous conversations and the infusion of his personal beliefs as documented by the student statements in Board Exhibit 2. The Board's brief quotes one student who in reference to one of Dr. Miller's classroom discussions stated that giving such a passionate lecture is completely wrong, and argues that In this light it had just cause to issue the letter of reprimand.  (Board brief at p.5-7)  But, the testimony of all of the Board's witnesses by their own admissions clearly acknowledged that any alleged numerous conversations, etc. or passionate lectures were not the basis for the reprimand.  The Pythagoras comment was the sole basis for the reprimand.  

Thus, even though it may have been imprudent for Dr. Miller to make a reference to these historic religious icons just days after his principal's directive, his comment cannot be described, nor did it relate to his or anyone else's religious beliefs.  Plainly, when he made the Pythagoras comment he was not infusing his personal religious beliefs into his lessons and assignments or preaching to students or assigning work that was purely religious in nature with no connection to the course material as in the Caroline County case.  Rather, he was emphasizing the historical fame of Pythagoras and the comparative level of his fame.  He did not cross the line on religion in the classroom that his principal had drawn and was within the permissible bounds described in the Supreme Court dicta quoted above,

Finally, Dr. Miller's reference was not part of a classroom discussion that was unrelated to math.  While staying on topic is essential to good instruction and Ms. Garbarino's directive to that effect was entirely reasonable, Dr. Miller's ranking of Pythagoras, one of the universally recognized major figures in the development of mathematics, alongside other historical figures to reinforce the important contribution that Pythagoras made to human knowledge, was related to the subject matter and consistent with a teacher's responsibility to his students to stay on topic.  

Accordingly, having found that Dr. Miller did not violate Ms. Garbarino's directive of November 20, 2003, the Grievance is granted.  The Board is directed to remove the December 20, 2003, reprimand from all files in which the letter of reprimand was placed including Dr. Miller's personnel file and to notify him and TABCO within 10 days that it has complied with this Award.

Dated: November 3, 2005

_________________________________
Edward J. Gutman, Arbitrator
Baltimore, Maryland



[1]            Dr. Miller testified that he had been using this strategy for the past 15 years and considered it a very successful educational technique. (Tr. 62)   There was no evidence that there had ever been a complaint nor had the school administration ever directed him not to commemorate the day in this manner.  

[2]The Board's Post-Hearing written closing stated that the reprimand was issued AAs a result of (Dr. Miller's) insubordination.

[3]There was no testimony or evidence that any parent or student complained about Dr. Miller's Pythagoras comment.

[4]Neither Ms. Garbarino's directive nor the written reprimand makes any reference to the Board's constitutional obligations; nor do the Level I or II decisions.

[5]In a footnote to its brief, the Board posits that Moses was a mythical not an historical figure and cites scholarly authority that even questions the Mosaic authorship of the Torah.  To engage in debate over this assertion would be well beyond the scope of this matter and would not contribute to answering the issue posed by the grievance.  Likewise, the attachments to the Board's brief shed no light on answering the issue raised by the grievance.

[6]See also Wiley v. Franklin, the other case cited by the Board. There, a teacher was terminated for assigning the Bible as part of the curriculum. He claimed that religious music was part of the music curriculum but the court found that his assignment had nothing to do with religious music and everything to do with advancing his own religious beliefs in the classroom.  Unlike Dr. Miller, he failed to show any rational connection with the music curriculum and his termination was upheld.  

[7]While Ms. Garbarino testified that the reprimand was based in part on the parental complaint she received on December 3, she was unable to confirm whether the conduct complained of by the parent occurred before or after the November 17th verbal directive and Mr. Capozzi confirmed that his decision at Level II upholding the reprimand did not consider the December 3rd parent complaint because of uncertainty over when the conduct occurred.

 

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