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SCHOOL COMMITTEE OF LOWELL vs.
Vong OUNG & others. [FN1]
No. 07-P-184.
December 5, 2007. - September 25, 2008.
School and School Committee, Termination
of employment, Arbitration. Arbitration,
School committee, Authority of arbitrator, Arbitrable question. Public
Policy.
CIVIL ACTION commenced in the Superior Court Department on April 7, 2006.
The case was heard by Christine M. McEvoy,
J.
James P. Hall for the plaintiff.
James L. Messenger for the defendant.
Christopher DeMayo & Jeffrey S. Strom,
for Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association
& others, amici curiae, submitted a brief.
Present: Gelinas, Smith, & Sikora, JJ. [FN2]
SIKORA, J.
In October of 2003 the superintendent of the Lowell public schools terminated
three teachers for "failure to demonstrate fluency in English." None
of the teachers had been born in the United States: Vong [FN3] Oung and Vandy
Duch grew up in Cambodia, and Pedro Espada in Puerto Rico. The School Committee
of Lowell (Committee) now appeals from the judgment of the Superior Court
confirming the arbitration award reinstating all three teachers with full back pay
and related benefits. We affirm. [FN4]
1. Background. By a referendum vote in
2002, the Massachusetts electorate approved the general elimination of bilingual
education in Massachusetts public schools. General Laws c. 71A, inserted by
St.2002, c. 386, § 1, implements the referendum: it mandates that "all
children shall be placed in English language classrooms," c. 71A, § 4,
conducted by teachers "fluent and literate in English," c. 71A, § 2(b
). The pertinent Department of Education (DOE) regulations require school
district superintendents to "provide annually to the [DOE] a written
assurance that teachers of English language classrooms ... are literate and
fluent in English." 603 Code Mass. Regs. § 14.05(1) (2003). A teacher's
fluency is to be "determined through one or more of the following methods:
(a) classroom observation and assessment by the teacher's supervisor, principal,
or superintendent; or (b) an interview and assessment by the teacher's
supervisor, principal, or superintendent; or (c) the teacher's demonstration of
fluency in English through a test accepted by the Commissioner of Education; or
(d) another method determined by the superintendent and accepted by the
Commissioner." 603 Code Mass. Regs. § 14.05(3) (2003).
The DOE's March 27, 2003, written memorandum ("DOE guidelines") to all
school superintendents states that "[a]
test is needed only in cases where the teacher's
English fluency is not apparent through classroom observation and assessment or
interview and assessment " (emphasis in original). If a teacher
fails to demonstrate fluency through assessments by classroom observation or
interview, the DOE recommends the administration of the American Council on the
Teaching of Foreign Languages (ACTFL) Oral Proficiency Interview (OPI) for
assessment of the teacher's language skills. The DOE guidelines state also that,
in the event that a school district chooses to employ an assessment tool other
than the OPI, it should contact the DOE to ascertain whether the alternative
would be "accepted by the Commissioner."
The Committee's certification of its teachers deviated from the DOE regulations
and guidelines in several particulars: (1) it bypassed the processes of
assessment by classroom observation or by interview; (2) it allowed a teacher to
demonstrate fluency by means of a passing score on the so-called SPEAK test
|
[FN5]
without administration of the OPI and without approval of the SPEAK test
by the DOE; and (3) it presumed that all native English speakers who
"were educated in English in mainland U.S. schools for at least
[four] years during their K-12 education" were fluent in English
and thus exempt from assessment. |
Prior to the three teachers' termination in 2003, representatives of the Lowell school
district had evaluated them on multiple occasions and had awarded them
satisfactory ratings [FN6] in every category, including the use of appropriate
instruction and questioning techniques, proper monitoring of students'
understanding of the curriculum, and clear communication of learning goals. In
the fall of 2003, the Committee determined that the teachers were not exempt
from the fluency assessment. The teachers took the SPEAK test but did not
achieve passing scores. They then took the OPI test. Oung and Duch each failed
it three times, and Espada failed it twice. The superintendent determined that
she could not attest to the teachers' fluency in English as required by the DOE
regulations, and in October, 2003, she terminated their employment.
At the time, all three had the status of professional teachers and the coverage
of a collective bargaining agreement. General Laws c. 71, § 42, as appearing in
St.1993, c. 71, § 44, does not permit termination of a teacher with
professional status "except for inefficiency, incompetency, incapacity,
conduct unbecoming a teacher, insubordination or ... other just cause." The
statute confers upon a dismissed teacher the right to "seek review of a
dismissal decision ... by filing a petition for arbitration with the
commissioner." Ibid. At the
arbitration proceeding, the school committee has the burden to show cause for
termination. Ibid. If the arbitrator
finds that "the dismissal was improper," he or she
"may award back pay, benefits, reinstatement, and any other appropriate
non-financial relief or any combination thereof." Ibid.
The superintendent terminated all three teachers pursuant to G.L. c. 71, § 42,
for "other just cause." The teachers invoked arbitration. The
arbitrator instructed the Committee that the admission of the OPI score reports
into evidence without affording the teachers an opportunity to cross-examine the
OPI graders would violate the teachers' procedural rights of meaningful
cross-examination. The Committee obtained subpoenae from the Superior Court
ordering Language Testing International (LTI), the company administering the OPI
test, "immediately [to] produce the names and addresses of all raters and
graders for the various OPI tests of" the teachers; "to produce audio
tapes of the ... OPI tests"; and "to send a representative who is a
nationally recognized expert in the use and administration of the OPI tests to
be a witness [at] the arbitration hearing."
The graders, who lived over one hundred miles from Lowell, did not comply with
the Committee's request to testify at the arbitration hearing. [FN7] The
arbitrator found that the graders' "qualifications and training in OPI test
administration and rating ha[d] a profound impact on the reliability of the OPI test
results" and on the ultimate determination of the teachers' inadequate
fluency in English. He ruled that the audio recordings of the teachers' OPI
tests and the expert testimony of an LTI employee, who admittedly had not
administered the test, would violate the teachers' right to cross-examine
adverse witnesses. He therefore excluded the OPI scores. [FN8] He excluded the
OPI scores also on the ground that the Committee had failed to evaluate the
teachers' fluency by classroom observation or interview before administering the
OPI, as the DOE guidelines required.
The arbitrator admitted in evidence the results of the SPEAK test because the
Committee produced its graders for cross-examination. He found that the
Committee had made no attempt to have the SPEAK test accepted by the DOE as a
valid assessment tool. Despite the Committee's failure to meet this threshold
requirement, he addressed the results of the test. He found that the Committee
had failed to show that the SPEAK test results adequately reflected the
teachers' fluency, because the graders and the Committee had failed to follow
proper procedures in the administration of the test and in the evaluation of its
results. [FN9]
The exclusion of the OPI scores caused the Committee's failure to carry its
burden of proof of the teacher's lack of fluency in English and therefore of their
disqualification by just cause within the meaning of G.L. c. 71, § 42. As an
independent ground of decision, the arbitrator added that even if valid OPI
scores had established a lack of fluency, the Committee's confinement of fluency
assessment to nonnative English speakers had improperly discriminated against
the teachers in violation of G.L. c. 151B, § 4.
2. Discussion. The Committee argues on
appeal that the arbitrator exceeded his authority because a superintendent's
determination of inadequate fluency and resulting dismissal is not an arbitrable
subject matter; because he improperly excluded the OPI scores; and because he
violated State law and public policy. We address each contention in turn.
a. Standard of review. "Absent
proof of one of the grounds enumerated in G.L. c. 150C, § 11, to vacate
arbitral awards, we are strictly bound by [an] arbitrator's factual findings and
conclusions of law, even if they are in error." School
Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758
(2003), citing Lynn v. Thompson, 435
Mass. 54, 61-62 (2001), cert. denied, 534 U.S. 1131 (2002). [FN10] However,
"the question whether an arbitrator exceeded his or her authority is always
subject to judicial review." Board of
Higher Educ. v. Massachusetts Teachers
Assn., NEA, 62 Mass.App.Ct. 42, 47 (2004). See G.L. c. 150C, § 11(a
)(3).
b. Arbitrator's authority. General Laws
c. 71, § 42, permits an arbitrator to overturn a superintendent's or
principal's disciplinary personnel decision on substantive or procedural
grounds. See School Comm. of Pittsfield v.
United Educators of Pittsfield, supra at 760-762; Board
of Higher Educ. v. Massachusetts
Teachers Assn., NEA, supra at 48.
The Committee attempts to distinguish the dismissal of a teacher for substandard
language skills from the dismissal for one of the causes enumerated in G.L. c.
71, § 42. It argues that because G.L. c. 71A, §§ 2(b
) and 4, mandate that teachers be fluent in English and because 603 Code Mass.
Regs. § 14.05(1) imposes the obligation on superintendents to provide a written
assurance that each teacher is in fact fluent in English, the decision to
dismiss a teacher who fails to meet the fluency requirement is the "only
option under the law" and thus is not an arbitrable subject matter intended
by G.L. c. 71, § 42.
This argument lacks merit because it presupposes that the teachers are not
fluent in English. General Laws c. 71, § 42, protects teachers with
professional status from dismissal for reasons ostensibly authorized by the
statute, but deficient in fact or violative of the teachers' substantive and procedural
rights under a collective bargaining agreement. The Committee concedes that the
superintendent terminated the three teachers for "other just cause"
under G.L. c. 71, § 42. Pursuant to that statute and the teachers' collective
bargaining agreement, the arbitrator possessed authority to review the dismissal
decision for substantive and procedural errors and authority to reinstate the
teachers if the Committee had failed to meet its burden of proof. The issue here
is fundamentally different from the one left open by the Supreme Judicial Court
in School Dist. of Beverly v. Geller,
435 Mass. 223 (2001): whether an arbitrator has the authority to reinstate a
teacher, and thus to "substitute[ ] his [or her] own judgment as to proper
discipline for that of the [school] district," if the school district
establishes cause under G.L. c. 71, § 42. See School
Dist. of Beverly v. Geller, supra at 225 (Cordy, J., concurring). Here
the question is whether, in the first place, the school authority has
established such cause.
c. Factual and legal grounds of the
arbitrator's decision. The arbitrator rested his decision upon multiple
grounds: (1) the exclusion of the OPI failing scores and the resulting
elimination of the Committee's proof of inadequate fluency; (2) the failure of
the Committee under the DOE guidelines to exhaust the prerequisite methods of
the classroom observation and assessment or interview and assessment of fluency
by the superintendent, principal, or supervisor before
imposition of a testing mechanism; (3) exclusion of the SPEAK test failing
scores as proof of inadequate fluency for lack of approval of the examination by
DOE and for commission of numerous violations of its protocols by its
administrators and graders; (4) the Committee's imposition of fluency testing
upon nonnative English speakers but not upon native English-speaking teachers
(those educated in the mainland United States for at least four of their years
from kindergarten through grade twelve) in supposed violation of the prohibition
of G.L. c. 151B, § 4(1), against employment discrimination upon the basis of
national origin; (5) the conclusion that the personal qualities of the three
dismissed teachers rendered them positive role models likely to elevate the
performance of their students [FN11]; and (6) the conclusion that a failure of
fluency did not compel the sanction of dismissal but rather the remedy of
retraining or reassignment of the teachers within their areas of certification
by reason of their seniority. He appears to have reached each one as an
independently adequate basis for his award of reinstatement.
Several grounds lie beyond the scope of judicial review. The Committee argues
that the exclusion of the OPI scores amounts to a "refus[al] to hear
evidence material to the controversy" reviewable under G.L. c. 251, § 12(a
)(4), inserted by St.1960, c. 374, § 1. That provision does not bestow
reviewability here for two reasons. The OPI scores lack
materiality because the Committee lacked authority to substitute them for the
mandated priority of classroom evaluation and face-to-face interviews. [FN12]
Also, the arbitrator did not unreasonably refuse to admit them, but excluded
them rationally because the teachers could not fairly controvert them without
information from the inaccessible test administrator. In the absence of a
showing of fraud, arbitral errors of law or fact remain beyond judicial review. Drywall
Sys., Inc. v. ZVI Constr. Co.,
435 Mass. 664, 674 (2002), citing Plymouth-Carver
Regional Sch. Dist. v. J. Farmer &
Co., 407 Mass. 1006, 1007 (1990).
For the same reasons, the exclusion of the SPEAK test results did not constitute
a refusal to receive material information within the meaning of c. 251, § 12(a
)(4). The results would not have cured the Committee's failure to employ the
mandated primary evaluation procedures and therefore lacked materiality. The
exclusion of them did not constitute an arbitrary refusal but rather a
reasonable precaution against unreliability. Finally, the Committee's contention
that the arbitral award includes excessive back pay without a subtraction for
required mitigation efforts constitutes an issue of law and fact beyond the
scope of our authority of review.
d. The public policy limitation. The
statutory limitation upon judicial review of arbitration
decisions presumes the commitment of an issue to arbitration by a valid
bargaining agreement. In Massachusetts a governmental body cannot validly
bargain away its responsibility for the public health, safety, and welfare.
Elements of that inalienable duty are not delegable to contractual arbitration.
An arbitrator cannot acquire authority reserved "by statute, by tradition,
or by common sense ... to the sole discretion of the public employer so as to
preserve the intended role of the governmental agency and its accountability in
the political process." Worcester v. Labor
Relations Commn., 438 Mass. 177, 181 (2002), quoting from Lynn
v. Labor Relations Commn., 43 Mass.App.Ct. 172, 178 (1997). See School
Dist. of Beverly v. Geller, 435 Mass. at 230 (Cordy, J., concurring),
quoting from School Comm. of Hanover v. Curry,
3 Mass.App.Ct. 151, 156 (1975), S. C.,
369 Mass. 683 (1976) (upon "determinations ... of public law, the
arbitrator possesses no special expertise ... )" [FN13] See Bureau
of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 603
(2000), and cases cited (arbitrators do not have authority to weigh the public
policy implications of their awards; only the matters encompassed by the
enabling collective bargaining agreement and related contracts).
In matters of employee dismissal, the reviewing court will inspect an arbitral
award for the violation of a public policy limitation by three criteria: (1) whether
the policy is defined, dominant, and visible in specific law sources, and not
merely inferable from a general consideration of public interests; (2) whether
the discharged employee has engaged in disfavored conduct integral to the
performance of his duties; and (3) whether the deficient or offensive conduct
would typically require dismissal. Id.
at 604-605, and cases cited.
In the present circumstances the Committee contends that the award of
reinstatement violates the public policy of mandatory fluent English language
instruction embodied in G.L. c. 71A, §§ 2(b
) and 4, 603 Code Mass. Regs. § 14.05, and the DOE guidelines. Three of the
grounds offered by the arbitrator arguably trespass into considerations of
public policy: (1) the unanalyzed conclusion that the Committee's decision not
to investigate the fluency of native English-speaking teachers constituted
employment discrimination against nonnative English-speaking teachers in
violation of G.L. c. 151B, § 4(1); (2) the conclusion that the personal
qualities and histories of the three teachers would so serve their students as
to override problems of fluency; and (3) the conclusion that the Committee could
not dismiss, but must retrain and reassign, the three teachers despite any
fluency shortcomings.
However, we need not resolve their validity. Those grounds are gratuitous to the
award. Their invalidity would not require its reversal. The award would remain
effective by reason of the limited, independent, and unreviewable determinations
of fact and law undermining the Committee's evaluation of the teachers'
inadequate fluency.
Conclusion. We therefore affirm the
judgment of the Superior Court confirming the arbitration award.
So ordered.
|
FN1.
Vandy Duch and Pedro Espada. |
|
FN2.
Justice Gelinas participated in the deliberation on this case prior to
his retirement. |
|
FN3.
Alternate spellings of Vong Oung's name appear in the record. |
|
FN4.
We acknowledge the amicus brief filed by the Lawyers' Committee for
Civil Rights Under Law of the Boston Bar Association; Mass English Plus
Coalition; Multicultural Education Training and Advocacy, Inc.;
Massachusetts Immigrant and Refugee Advocacy Coalition; Southeast Asia
Resource Action Center; Puerto Rican Legal Defense and Education Fund,
Inc.; Harry H. Dow |
|
Memorial
Legal Assistance Fund; Boston Asian Youth Essential Service; Irish
Immigration Center; Massachusetts Coalition for Equitable Education;
Children's Law Center of Massachusetts; Juvenile Justice Center; Suffolk
Law School; Citizens for Public Schools; The Union of Minority
Neighborhoods; American Civil Liberties Union of Massachusetts; National
Lawyers Guild, Massachusetts Chapter; Jewish Alliance for Law &
Social Action; Fair Housing Center of Greater Boston; and Community
Change, Inc. |
|
FN5.
The record indicates that the SPEAK test requires the examinee to answer
a set of prerecorded questions; that it records the examinee's answers;
and that graders then listen to those answers and assign evaluations of
fluency. |
|
FN6.
The possible ratings were (1) satisfactory: "[t]he employee's
performance meets or exceeds professional standards and position
requirements"; (2) unsatisfactory: "[t]he employee's
performance is below the level of acceptability; improvement plan needs
to be formulated"; and (3) unknown: "[n]o evidence collected
regarding this item during the evaluation period." |
|
One
school evaluator who had observed Vong Oung in 2003 in the classroom
setting determined that his "English language skills [were] not
sufficient to |
|
consistently
insure student learning" and "ha[d] a negative impact on [his]
students' ability to make accurate sense of [his] expectations and [his]
instruction." The evaluator cited specific examples of how Vong
Oung's language shortcomings made his instruction less effective. The
arbitrator did not find this evaluation credible because during the
previous eight years the same evaluator had not once indicated that Vong
Oung had difficulty with communication in English. |
|
FN7.
A letter from LTI to the DOE, dated July 25, 2005, asserted LTI's
position: |
|
"Please
take notice that effective immediately LTI, Inc. hereby intends to
suspend all testing services provided for school districts in
Massachusetts as part of the Commonwealth's teacher certification
process.... [A] new legal issue has arisen ... whereby LTI has received
a subpoena to appear before an arbitrator involving Lowell's firing of
three teachers who failed the [OPI] ... Despite our efforts to work with
the [DOE] to resolve our concerns over protecting LTI's intellectual
property and test security ... we again are confronted with the
potential for irreparable damage to the test. |
|
"All
of the raters who perform services for LTI are independent contractors,
not employees. If we are forced to present our raters for such 'second- |
|
guessing'
we are faced with the certainty of having them refuse to continue to
perform services for us. LTI cannot physically force the affected raters
to comply with that subpoena, nor will we encourage any of our raters to
agree to appear. Equally outrageous, we further understand that the
arbitrator intends to play the tape of each test-taker and apparently
question the rater about the scoring based on those tapes.... [S]uch
tapes are not available to be disclosed because of copyright and test
security concerns." |
|
FN8.
The arbitrator relied in part on the interpretation of G.L. c. 71, §
42, in Conward v. Cambridge Sch. Comm.,
171 F.3d 12, 23 (1st Cir.1999), that the due process clause of the
Fourteenth Amendment to the United States Constitution affords a tenured
public employee the right to "an explanation of the employer's
evidence, and an opportunity to present his [or her] side of the
story." Ibid., quoting from
Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 546 (1985). |
|
FN9.
For example, some graders testified that they had not listened to
calibration samples before listening to and grading each examination and
that they had downgraded answers by more points than mandated by the
SPEAK training kit. The arbitrator credited expert testimony that the
test did not simulate the teaching environment because of lack of
questions within the subjects |
|
taught
by the teachers. Some of the teachers took the test more than once
within a six-week period, and the results from the second test varied
widely from those of the first. The arbitrator determined that
"such a variance should not exist relative to an analysis of
English language proficiency in six (6) weeks time." By reason of
these and other breaches of test protocols, the arbitrator concluded
that the individual scores varied with the identity of the grader and
were thus unreliable. |
|
FN10.
The Committee confuses the standard of review applicable to a decision
of an administrative agency under G.L. c. 30A, § 14, with the much more
restrictive standard of review governing the decision of an arbitrator.
It asserts that the teachers cannot justifiably contend that their
termination was "arbitrary and capricious". See Lynn
v. Thompson, supra at 62 n. 13 ("We reject the suggestion
that we should enlarge the scope of our review of arbitration decisions
in cases involving public entities or public employees"). |
|
General
Laws c. 150C, § 11(a ), in the
main permits the Superior Court to vacate an award only upon grounds of
(1) corruption, fraud, or other undue means; (2) an arbitrator's evident
partiality, corruption, or misconduct; (3) excess of authority or
decision compelling a violation of law; (4) refusal of justified
postponement; refusal to hear material evidence; and (5) the absence of
an arbitration agreement. |
|
FN11.
Vong Oung had fled the Khmer Rouge regime in Cambodia as a teenager,
graduated with high ranking from public high school in Maine, and
achieved a bachelor of arts degree in mathematics from a State college.
He had taught public high school and middle school bilingual and
mainstream classes for approximately nine years at the time of his
termination in 2003. Until 2003 he had received satisfactory evaluations
of his teaching performance (including communication skills). |
|
Vandy
Duch also had fled from Cambodia. He moved to Lowell in 1984, and taught
in its public school system from 1985 until termination in 2003; he
taught mostly math and science courses to fifth and sixth graders in
both bilingual and mainstream classrooms. In 1994 he achieved his degree
at a four-year college. His evaluations were consistently satisfactory;
they had presented no questions of his ability to communicate in
English. |
|
Pedro
Espada graduated from high school in Puerto Rico, enlisted in the United
States Army, served in Vietnam, and advanced to the rank of sergeant. He
achieved his bachelor of arts degree in 1977 from the Inter American
University in Puerto Rico. In 1994 he moved to Lowell and began teaching
bilingual classes in the public school system. He taught predominantly
in English. Throughout his nine years of teaching (consisting of biology
instruction at the middle school level), he received consistently
positive |
|
FN12.
The primacy of the classroom observation and personal interview methods
of evaluation mandated by DOE in its regulation and guidelines appears
to rest upon an important rational premise: the greater reliability of
those procedures than the subordinated tests to demonstrate over-all
fluency in the face-to-face setting of the classroom. |
|
FN13.
"The fact that an issue has been submitted to an arbitrator for
decision and that an award has been given does not preclude further
judicial review where statutory policies have been affected." School
Comm. of Hanover v. Curry, supra at 156. See Alexander
v. Gardner-Denver Co., 415 U.S. 36, 57 (1974) ("the
specialized competence of arbitrators pertains primarily to the law of
the shop, not the law of the land"). |
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