Massachusetts Supreme Judicial Court upholds arbitrator’s finding of no just cause to terminate teacher for lack of fluency

The Supreme Judicial Court of Massachusetts upheld an arbitrator’s finding that a school committee did not have just cause to terminate a teacher for failure to demonstrate satisfactory English fluency. Under Massachusetts state law, teachers are required to demonstrate English fluency and literacy through a classroom observation, administrative interview, an “advanced-mid” level score on an oral proficiency interview (OPI) test, or an approved alternative method. In 2002, Phanna Kem Robishaw, a first grade teacher at Greenhalge School who had received satisfactory ratings during the first ten years of her employment, was observed by the new principal, who expressed concerns about her fluency and rated her over-all performance as unsatisfactory. After a meeting with the principal, Robishaw experienced symptoms of posttraumatic stress disorder. While on a medical leave of absence, Robishaw requested permission to postpone taking the OPI test, but the  assistant superintendent refused, and Robishaw failed both the SPEAK and OPI tests. When Robishaw had recovered and wished to return to work, the superintendent terminated her employment saying that she was insufficiently fluent based on the principal’s report and the failed tests. At a review hearing, an arbitrator found that the school committee did not have just cause to terminate her employment and ordered her to be reinstated with back pay and benefits. However, the Superior Court vacated the arbitrator’s award saying that it violated the arbitrator’s authority and public policy.

The Supreme Judicial Court pointed out that a court’s review of an arbitrator’s award is limited to determining whether the arbitrator exceeded his scope of reference, ordered conduct prohibited by law, or acted against clearly defined public policy. Otherwise, the reviewing court is strictly bound by the arbitrator’s factual findings and conclusions of law. It found that the arbitrator was not asking the superintendent to act contrary to law by not allowing him to rely on the principal’s findings or the tests. First of all, under the law the superintendent was not required to rely on the principal’s opinion of fluency.  Secondly,   the principal’s findings were made before the standards for fluency had been released so they were not informed by the correct standards. Thirdly, Robishaw did not have notice that her fluency was being observed. In addition, while the arbitrator would normally be  bound by the results of the OPI and SPEAK tests, in this case they were correctly excluded due to the medical evidence that any tests taken during the time of Robishaw’s medical leave were not an accurate representation of her fluency. The Supreme Judicial Court also found that the arbitrator’s award did not violate public policy, because the arbitrator was not forcing the school committee to retain a teacher without the proper fluency, but instead found that the school committee did not meet its burden in proving that Robishaw was not fluent and in providing just cause for her termination.

School Committee of Lowell v. Robishaw, No. SJC-10512 (Mass. May 4, 2010)

[Editor’s Note: Last week, the Wall Street Journal reported on the Arizona Department of Education (ADE) increasing emphasis on the teachers’ English language fluency. The article quoted Adela Santa Cruz, director of ADE’s office charged with enforcing standards in classes for students with limited English, as saying, “The teacher obviously must be fluent in every aspect of the English language." A summary of the article is available below.]

NSBA School Law pages on ADE’s English language fluency requirements