Lowell [Cambodia-American] teacher fired for failing English fluency tests may get job back

May 4, 2010
By John R. Ellement
Boston Globe Staff (Massachusetts, USA)

A former Lowell teacher who was fired because she failed state-mandated English fluency tests may get her job back as a result of a decision today by the Supreme Judicial Court.

In a unanimous ruling, the state's high court said an arbitrator did not violate state law when he ruled that the Lowell School Committee had no right to dismiss Phanna Kem Robishaw, a first-grade teacher from Cambodia who failed English-speaking tests.

"Applying the well-settled limitations on judicial review of an arbitrator's decision, we conclude that the arbitrator's award in this case should be affirmed," Justice Margot Botsford wrote for the court.

In its ruling, the SJC said it was not passing judgment on the validity or legality of the English-speaking requirement that was added to the state's lawbooks as the result of a statewide referendum. In 2002, voters approved Question 2, which required, among other things, that all classroom teachers pass proficiency tests in English.

In 2003, the Lowell School Department implemented the new rules and Robishaw was required to take the tests. At the time, Robishaw had taught for 10 years at the Greenhalge School, where nearly 50 percent of the students were Cambodian immigrants.

A survivor of the murderous Khmer Rouge regime, Robishaw had four state teaching licenses to her credit when she failed two types of fluency tests, according to the SJC. She went on medical leave for post-traumatic stress disorder linked to her life in Cambodia and sought to get her job back in 2005.

But Lowell school officials, citing the 2003 failures, fired her instead. In 2007, an arbitrator ruled the school was wrong to conduct the tests when Robishaw was being treated for a psychiatric disorder and that her life story was an inspiration to her students.

The school committee appealed, and a Middlesex Superior Court judge ruled that the public policy requirements approved by voters in Question 2 must be applied to Robishaw. The judge included an audiotape of Robishaw speaking in the ruling to strengthen the conclusion that Robishaw was unfit to teach.

But the SJC said that under state law, judges cannot wholly substitute their own conclusions for those made by an arbitrator. "The judge was not free to reject the arbitrator's findings or his legal conclusion,'' Botsford wrote.

The SJC said that the arbitrator's conclusions did not violate state law requiring teachers to be fluent in English because the proficiency testing "must have been conducted in a procedurally appropriate manner and must be based on the use of substantively valid standards. If it was not, the superintendent's fluency determination need not be accepted. The judge was not free to reject the arbitrator's findings or his legal conclusion.''

Court rules in favor of fired Lowell [Cambodian] teachers

09/26/2008
By Dennis Shaughnessey, dshaughnessey@lowellsun.com
Lowell Sun (Massachusetts, USA)

LOWELL -- The state Appeals Court has upheld an arbitrator's decision to reinstate three Lowell public schoolteachers who were terminated in 2003 for failing English fluency tests.

The teachers, all of whom taught math and science at the middle-school level, were fired by then-Superintendent of Schools Karla Brooks Baehr after failing several oral English proficiency exams administered by the district. The tests became mandatory after voters approved a ballot question in 2002 requiring public schoolteachers to be fluent and literate in English.

Two of the teachers are Cambodian refugees, and the third is Puerto Rican. Vong Oung taught for nine years at the Bartlett Middle School. Vandy Duch taught for 17 years at the Daley Middle School. Pedro Espada taught at the Robinson Middle School from for 11 years. All three were bilingual teachers in the Lowell schools.

In March 2006, an independent arbitrator, Richard Boulanger, sided with the teachers and excluded the oral test results because the city could not get the original test graders to testify about their conclusions.

Superior Court Judge Christine McEvoy upheld Boulanger's ruling, agreeing that the teachers were wrongly terminated and should be given their jobs back, in addition to being paid back wages. McEvoy at the time said the School Department could have considered alternatives to firing the three teachers. All three have been on the payroll since January 2007, but it is unclear in what capacity.

Lawyers for the teachers successfully argued at the time that the ballot question did not define "fluency" or say that only non-native English speakers had to demonstrate English proficiency. The School Committee appealed that decision in December 2006.

Yesterday's decision could cost the district as much as $500,000 in back wages if the School Committee decides not to continue the appeal process.

Superintendent of Schools Chris Augusta Scott referred all inquiries to James Hall, the School Committee's lawyer.

"Right now, we are evaluating the ramifications of the decision and we will present that to the School Committee," Hall said. "We will wait for instruction from the School Committee, but beyond that, I really cannot comment except to say that we are disappointed with the decision."

Mayor Edward "Bud" Caulfield, who chairs the School Committee, also declined comment until he studies the matter.

"I know our Law Department is on top of this issue so I'll save my comment until I research it further," Caulfield said. "But let's see if we can get through this without costing the School Department a lot of grief and a lot of money."