School Committee of Lowell v. Oung

Citations: 72 Mass. App. Ct. 698; 893 N.E.2d 1246; 2008 Mass. App. LEXIS 975; 104 Fair Empl. Prac. Cas. (BNA) 852Docket: No. 07-P-184

Court: Massachusetts Appeals Court; September 25, 2008; Massachusetts; State Appellate Court

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In October 2003, the superintendent of the Lowell public schools terminated three teachers—Vong Oung and Vandy Duch from Cambodia, and Pedro Espada from Puerto Rico—for not demonstrating fluency in English. The Lowell School Committee appealed a Superior Court judgment that upheld an arbitration award reinstating these teachers with full back pay and benefits. 

Background context includes a 2002 Massachusetts referendum that led to the elimination of bilingual education, mandating that all students be placed in English language classrooms taught by teachers who are fluent and literate in English. The Department of Education (DOE) regulations require school districts to provide annual assurances of teachers' fluency, determined through classroom observations, interviews, or accepted proficiency tests. The DOE guidelines specify that a test is only necessary when fluency is not evident through other assessments. 

The Committee's actions deviated from DOE regulations by bypassing required assessment processes, allowing fluency to be demonstrated through an unapproved SPEAK test, and presuming fluency for all native English speakers educated in the U.S. for at least four years without assessment. Prior to their termination, the three teachers had received satisfactory evaluations in various teaching categories from Lowell school district representatives.

In fall 2003, a Committee concluded that three teachers were not exempt from a fluency assessment and subsequently, after failing the SPEAK and OPI tests, their employment was terminated by the superintendent for not meeting English fluency requirements per DOE regulations. Under Massachusetts General Laws c. 71, § 42, a professional teacher can only be terminated for specific just causes such as incompetency or insubordination. The teachers sought arbitration, where the burden of proof rested with the Committee to justify their dismissal.

The arbitrator ruled that admitting OPI score reports without allowing cross-examination of the graders violated the teachers' procedural rights. The Committee attempted to secure testimony from Language Testing International (LTI) regarding the OPI tests but encountered non-compliance from the graders. The arbitrator found that the qualifications of the graders significantly affected the reliability of the OPI results and emphasized that the Committee did not conduct required classroom observations or interviews prior to administering the OPI test.

While the SPEAK test results were admitted, the arbitrator noted the Committee failed to validate it as an acceptable assessment tool and did not follow appropriate procedures in its administration and evaluation. Ultimately, the exclusion of the OPI scores led to the Committee's inability to prove the teachers lacked fluency, and thus, their termination lacked just cause. Additionally, the arbitrator stated that even if valid OPI scores indicated a lack of fluency, the Committee's assessment method discriminated against the teachers based on their nonnative English speaker status, violating G. L. c. 151B.

The Committee contends on appeal that the arbitrator exceeded his authority by ruling on the dismissal of teachers for inadequate fluency, claiming it is not an arbitrable matter, improperly excluding OPI scores, and violating State law and public policy. The standard of review emphasizes that arbitral awards cannot be vacated without proof of specific grounds listed in G. L. c. 150C. 11, and arbitrators' findings are generally upheld unless they exceed their authority, which is always subject to judicial review. Under General Laws c. 71. 42, arbitrators can overturn disciplinary decisions made by superintendents or principals based on substantive or procedural grounds. The Committee's argument that the dismissal for substandard language skills is mandatory and not arbitrable is flawed, as it assumes the teachers lack English fluency. G. L. c. 71. 42 protects teachers from wrongful dismissal and allows for arbitration if procedural rights are violated. The Committee acknowledges that the dismissal was for 'other just cause,' thus granting the arbitrator the authority to review the decision and potentially reinstate the teachers if the Committee did not meet its burden of proof. This situation differs from the precedent set in School Dist. of Beverly v. Geller regarding an arbitrator's authority to reinstate a teacher based on the school district establishing cause under G. L. c. 71. 42.

The arbitrator's decision in this case was based on several key points: 

1. The exclusion of OPI failing scores undermined the Committee's ability to prove inadequate fluency.
2. The Committee failed to follow DOE guidelines by not exhausting classroom observations and assessments before implementing a testing mechanism.
3. The SPEAK test results were excluded as evidence of inadequate fluency due to lack of DOE approval and numerous protocol violations by administrators.
4. The imposition of fluency testing on nonnative English speakers, but not on native speakers, was seen as potential employment discrimination under G. L. c. 151B. 4(1).
5. The dismissed teachers were viewed as positive role models, and their fluency issues did not warrant dismissal but rather retraining or reassignment.
6. Each of these grounds was considered adequate for the award of reinstatement.

The Committee's argument regarding the exclusion of OPI scores as a refusal to hear material evidence was rejected, as the scores were not deemed material due to the Committee's lack of authority and the rational basis for their exclusion. The exclusion of SPEAK test results was similarly justified. The issue of excessive back pay in the arbitral award was also deemed beyond the scope of judicial review. 

Additionally, judicial review of arbitration decisions is limited by the presumption that issues committed to arbitration by a valid bargaining agreement cannot infringe upon a governmental body's inalienable responsibilities for public health, safety, and welfare. An arbitrator cannot assume authority that is reserved by statute or tradition to the public employer.

The arbitrator lacks special expertise in public law determinations, as established in prior case law. Arbitrators cannot assess the public policy implications of their awards beyond what is specified in collective bargaining agreements. In cases of employee dismissal, courts review arbitral awards against three criteria: (1) whether the public policy is clearly defined in legal sources; (2) whether the employee engaged in conduct that was detrimental to their duties; and (3) whether such conduct typically warrants dismissal. The Committee argues that an award of reinstatement contravenes public policy requiring proficient English instruction, citing specific statutes and regulations. The arbitrator's reasoning includes three potentially problematic conclusions regarding discrimination claims, the qualifications of teachers, and the necessity of retraining despite fluency issues. However, these conclusions are deemed unnecessary for the award's validity. The award remains intact due to the independent findings undermining the Committee's assessment of the teachers' fluency. The judgment of the Superior Court affirming the arbitration award is upheld. Additionally, various organizations submitted an amicus brief in support of the proceedings. The SPEAK test used for evaluating fluency involves recorded responses to questions, with ratings ranging from satisfactory to unsatisfactory, based on an evaluator's observations, including a specific finding that one teacher's insufficient English skills negatively affected student comprehension.

The evaluator identified language deficiencies that hindered Vong Oung's teaching effectiveness, but the arbitrator deemed this evaluation unreliable, noting that the evaluator had not previously reported communication issues over eight years. A letter from LTI to the DOE announced the immediate suspension of testing services for Massachusetts school districts related to teacher certification. LTI is now facing a subpoena to present before an arbitrator regarding the termination of three teachers who failed the OPI, raising concerns about test security and potential irreparable harm to the testing process. LTI's raters, who are independent contractors, may refuse to comply with the subpoena, and LTI will not encourage their participation. The arbitrator intends to review audio recordings of tests, which cannot be disclosed due to copyright and security issues. The arbitrator referenced Conward v. Cambridge Sch. Comm. regarding the due process rights of tenured public employees, highlighting inconsistencies in grading practices among raters and the unreliable nature of scores, which varied significantly over a short period. The Committee mistakenly conflated the standards of review for administrative agency decisions with those for arbitration decisions, asserting that the teachers could not claim their terminations were "arbitrary and capricious." The legal framework allows for vacating an arbitration award only under specific, limited circumstances. Vong Oung, who fled the Khmer Rouge, has a strong educational background, having taught for about nine years prior to his termination in 2003.

Until 2003, Vandy Duch received satisfactory evaluations for his teaching performance, including communication skills. A Cambodian refugee, he relocated to Lowell in 1984 and taught math and science to fifth and sixth graders in both bilingual and mainstream classrooms from 1985 until his termination in 2003. He earned a degree from a four-year college in 1994, and his evaluations consistently indicated no concerns regarding his English communication abilities. Similarly, Pedro Espada, a Vietnam War veteran who graduated high school in Puerto Rico, obtained his bachelor’s degree in 1977 and began teaching bilingual classes in Lowell in 1994, focusing primarily on English. He taught biology at the middle school level for nine years, receiving consistently positive evaluations. The Department of Education (DOE) emphasizes classroom observation and personal interviews as reliable evaluation methods over standardized tests for assessing fluency in classroom settings. Furthermore, while issues can be arbitrated, judicial review remains available when statutory policies are implicated, as established in School Comm. of Hanover v. Curry and Alexander v. Gardner-Denver Co., highlighting that arbitrators’ expertise is primarily related to workplace law rather than broader legal principles.