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SEE YOU IN COURT! - March 2009

March 20, 2009

Authors: Thomas B. Mooney

Tom Teacher has been a popular teacher at Median Middle School for many years. Thus, it was a huge surprise for Mr. Principal when Tom was the subject of a parent complaint. Specifically, Agnes Agnostic had come to pick up her daughter, Annie, and she was shocked to see posters with religious themes on his bulletin board, including a poster advertising the National Day of Prayer, and a beautiful nature shot with the caption “God Shed His Grace On Thee.” Horrified, Agnes ran right home to call her friend Penny Pincher, a longtime member of the Nutmeg Board of Education

“One thing is clear,” Agnes told Penny. “There is no place in our public schools for religion. What are you going to do about it?”

“I am all over it. Tom is going to have to learn a lesson about the First Amendment.” With that, Penny went over to the school to see Tom’s posters for herself. Tom was understandably surprised to see a member of the Board nosing around his room. But Agnes just quietly inspected the posters, and she made the “call-me” sign to Tom with her fingers as she was leaving. Tom had no interest in getting into it on the telephone with a Board member. Rather, as soon as he was free, he called Mal Content, fellow teacher and stalwart of the Nutmeg Union of Teachers. Mal, in turn, called Mr. Superintendent to complain about Penny’s intruding into Tom’s classroom. However, Mr. Superintendent shrugged off the concerns, telling Mal that Board members will be Board members, and controlling them was not his job.

Mal and Tom discussed Mr. Superintendent’s timid response, and they agreed that the best defense would be a good offense. Mal then helped Tom write a grievance, which alleged that Penny violated Tom’s rights by her unannounced visit to his classroom. Mr. Superintendent maintained his hands-off approach, and promptly kicked Tom’s grievance up to the Board for hearing.

As the hearing began, Mr. Chairperson called on Mal to present the grievance on Tom’s behalf. “Before we begin,” Mal intoned, “we have a conflict of interest problem here. Since Penny is the cause of this grievance, I presume that she will be recusing herself . . . .” After some hushed discussion among Penny and Bob Bombast over what Mal was talking about, Penny announced that she would most certainly not withdraw from hearing the grievance. With that, Penny crossed her arms in front of her and glared at Mal and Tom.

It was a short and unpleasant hearing. Tom testified as to his discomfort when Penny stopped by unannounced, and he complained that teachers should be safe in their classrooms without Board members snooping about. Penny interrupted him, and told the Board members that she had to investigate a complaint against Tom. Moreover, she continued, the complaint was valid. Indeed, Tom was improperly displaying religious messages in the classroom in violation of the United States Constitution.

The Board members promptly decided to deny the grievance. But they went a step further. In its grievance response, the Board directed Tom to take down his posters or face termination for insubordination. Do you have a problem with that?

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Board members can receive complaints, and they may be called upon to hear grievances filed by teachers and other bargaining unit members. It may be helpful, therefore, to review the role of Board members in such matters.

Penny was off-base, way off-base, to visit Tom’s classroom. Board members are responsible for fulfilling their statutory duties (such as setting the budget) and to give direction to the district by setting policy. The day-to-day operation of the school district, however, is vested in the superintendent, who by statute is the “chief executive officer” of the board of education. When Penny received the complaint, the appropriate response would have been to refer Agnes back to Tom Teacher in the first instance, and then through the chain of command through the principal to Mr. Superintendent. Her personal involvement in this matter was most inappropriate.

Board members are responsible for hearing grievances that come to them. Board members are also responsible for fulfilling statutory duties to determine student or teacher rights, such as school accommodations, expulsion, or contract non-renewal or termination. Had the hearing involved such statutory responsibilities, Penny would have been obliged to recuse herself, because a basic element of due process is decision by an impartial decision-maker. By contrast, a grievance hearing is an extension of the collective bargaining process, and issues of due process are inapplicable. Board members are free to confer with the superintendent privately, both before and after any such hearing. That said, given Penny’s personal involvement, it would have been appropriate for her to recuse herself, even though that was not legally required.

A threshold question in any grievance hearing is whether the matter presented is actually a grievance. Since grievance procedures are products of negotiation, we must look at the definition of grievance to determine whether a complaint is properly a grievance. Most contracts define a grievance as “an alleged violation, misinterpretation or misapplication of any of the specific provisions of the contract.” If that was the case here, the Board should have denied the grievance as not properly before it.

Finally, this situation raises an interesting legal question. In one recent case, the court held that the principal had the authority to tell a teacher to remove religious materials from his classroom bulletin boards, because the bulletin boards were considered to be part of the curriculum. However, in another similar case, the court ruled that such a directive violated the teacher’s free speech rights, because in that school teachers were permitted to post non-curriculum materials (e.g., “Go Red Sox!) on the bulletin boards. In the court’s view, students would not see the personal religious messages as state endorsement of religion (any more than they would think that the school district is a Red Sox fan). Given that the principal therefore had no legitimate concern about the posted materials, the court found that his directive violated the free speech rights of the teacher. These two cases remind us that school officials have to be careful about permitting personal displays, because they can thereby create a forum for personal speech. In any event, the Board should left the last part out of the grievance response. Threatening teachers with charges of insubordination is the job of the Superintendent.

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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