SUPREME JUDICIAL COURT OF MAINE
Decision: 1997 ME 219
Docket: Fra-97-21
Argued: September 5, 1997
Decided: November 19, 1997
SCHOOL ADMINISTRATIVE DISTRICT NO. 58
v.
MOUNT ABRAM TEACHERS ASSOCIATION
Before: WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and
LIPEZ, JJ.
LIPEZ, J
[1] School Administrative District No. 58 ("SAD # 58") appeals from
the judgment entered in the Superior Court (Franklin County, Perkins, J.)
denying its application to vacate an arbitration award. SAD # 58 argues
on appeal that its educational plan for the teaching of the book Bastard
Out of Carolina was not subject to arbitration. We agree and vacate the
judgment.
I.
[2] During the 1995-96 academic year, the superintendent of SAD
# 58 received a parental complaint concerning the sexually explicit
content of Bastard Out of Carolina, a work of fiction used in the 10th
grade curriculum at Mount Abram High School. At its January 10, 1996,
meeting, the Board of Directors of SAD # 58, voted to remove the book
from the curriculum unless the high school developed a plan: (i) to teach
the book "in conjunction with at least one other approved novel
addressing similar themes," in a manner according both books equal
treatment; (ii) to allow students to choose between the two books;
(iii) to structure classroom instruction such that all students would
feel comfortable remaining in class during the lesson; (iv) to select
passages to be read aloud "with respect for differences among students";
(v) to condition curricular changes upon receipt of board approval; and
(vi) to notify parents prior to teaching the book. On January 19, 1996,
an English teacher filed a grievance with the high school principal,
arguing that the Board's decision moved "beyond its legally recognized
power to supervise curriculum into the rights of a teacher certified by
the State of Maine to determine appropriate methodologies for the
teaching of a work of literature." The grievance proceeded to
arbitration over the objection of SAD # 58.
[3] The arbitrator acknowledged that the Board's general authority
to place conditions on the use of textbooks is a management right within
the meaning of Article 15.1 of the collective bargaining agreement
("agreement") between SAD # 58 and the Mount Abram Teachers Association
("Association"). Article 15.1 states that "the determination of
educational policy, the operation and management of schools, and the
control, supervision and direction of the employees are vested
exclusively in the Board." The arbitrator distinguished, however,
between educational policy decisions and management rights decisions:
Educational policy decisions are fundamentally right and reasonable,
and must be accepted even if they impede the teachers' ability to
perform. Other management rights decisions are of lesser
importance, and may be tested to determine if they unreasonably
impede the teachers' ability to effectively teach and present ideas.
He concluded that the conditions imposed by the Board on the teaching of
Bastard Out of Carolina did not constitute educational policy:
In this grievance, whether to use the Book at all is not subject to
grievance and arbitration, because it is purely an educational
policy matter. The conditions of its use, however, are not, because
they are rules or regulations that affect 'control', 'supervision'
and 'direction' of teachers, that, on balance, have a greater impact
upon working conditions than upon policy-making. As with all such
rules and regulations, the standard is whether they are reasonable,
as they may affect the Grievant's working conditions.
Applying the reasonableness standard to the conditions imposed by the
Board, the arbitrator found some of the conditions unreasonable and
ordered the following modifications:
1. The treatment of the alternative novel in the curriculum shall
be to the extent necessary to permit the comprehensive instruction
of the lessons presented.
2. Lessons shall be designed to minimize the number of times
students may feel more comfortable removing themselves from the
classroom discussion. The teacher shall discretely forewarn those
students when the discussion may be offensive to them.
3. Passages to be read aloud shall be chosen with respect to
differences among students without severely compromising the lesson,
while understanding that some students may object anyway, and wish
to remove themselves from the classroom at those times.
4. The Board shall determine who shall advise parents when the Book
is to be used, and how the notification shall be made.
SAD # 58 filed an application to vacate the arbitration award pursuant
to 14 M.R.S.A. 5938,[fn]1 which the Superior Court denied. This appeal
ensued.
II.
[4] We will uphold the court's confirmation of an arbitration
award unless the court "was compelled to vacate the award." Roosa v.
Tillotson, 1997 ME 121, P2, 695 A.2d 1196, 1197; American Fed'n of State,
County, and Mun. Employees, Council 93 v. City of Portland, 675 A.2d 100,
102 (Me. 1996). An arbitration award must be vacated if the grievance is
not substantively arbitrable, i.e., is not a dispute which the parties
agreed to submit to arbitration. Roosa, 1997 ME 121, P2, 695 A.2d at
1197; 14 M.R.S.A. 5938(1)(E) (1980); see Cape Elizabeth Sch. Bd. v.
Cape Elizabeth Teachers Ass'n, 459 A.2d 166, 168 (Me. 1983). "'We review
the court's determination of substantive arbitrability for errors of
law.'" Roosa, 1997 ME 121, P2, 695 A.2d at 1197 (quoting Pelletier &
Flanagan, Inc. v. Maine Court Facilities Auth., 673 A.2d 213, 215
(Me. 1996)).
[5] The Municipal Public Employees Labor Relations Law ("MPELRL"),
26 M.R.S.A. 961-974 (1988 & Supp. 1996), imposes upon school boards
and teachers associations the obligation
to confer and negotiate in good faith with respect to wages, hours,
working conditions and contract grievance arbitration, except that
by such obligation neither party shall be compelled to agree to a
proposal
____________________
1. The Uniform Arbitration Act, 14 M.R.S.A. 5927-5949 (1980), sets
forth the grounds for vacating an arbitration award. 14 M.R.S.A.
5938(1) (1980).
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or be required to make a concession and except that public employers
of teachers shall meet and consult but not negotiate with respect to
educational policies; for the purpose of this paragraph, educational
policies shall not include wages, hours, working conditions or
contract grievance arbitration; . . . .
26 M.R.S.A. 965(1)(C) (1988) (emphasis added). As SAD # 58 emphasizes,
this statutory provision prohibits the school district from negotiating
with teachers about educational policy. Hence, educational policy
decisions are not subject to the grievance and arbitration procedure.
See Board of Dir. of Maine Sch. Admin. Dist. No. 36 v. Maine Sch. Admin.
Dist. No. 36 Teachers Ass'n, 428 A.2d 419, 420 (Me. 1981) (finding that a
collective bargaining agreement provision that granted district teachers
preferential status for vacancies could not support a grievance, because
the school board could not subject its statutory authority over teacher
hiring to grievance arbitration). Arbitrators must "bear in mind that
. . . the legislature deemed 'educational policies' to involve value
choices so fundamental that binding decisions concernings [sic]them
should be made essentially unilaterally and by persons directly
responsible to the people . . . ." City of Biddeford Bd. of Educ. v.
Biddeford Teachers Ass'n, 304 A.2d 387, 414 (Me. 1973) (Wernick, J.,
concurring in part and dissenting in part).
[6] Prior to this dispute, the Board had adopted a policy to address
parental complaints about curricular matters. This policy, "Public
Concerns/Complaints About Instructional Resources," provides in relevant
part:
1. That the final decision for controversial reading matter shall
rest with the board after careful examination and discussion of the
book or reading matter with school officials or anyone else the
board may with [sic] to involve.
2. That no parent or group of parents has the right to determine
the reading matter for students other than their own children.
3. The Board does, however, recognize the right of an individual
parent to request that his child not have to read a given book,
provided a written request is made to the appropriate building
principal.
4. Any parent who wishes to request reconsideration of the use of
any book in the school must make such a request in writing on forms
provided through building principals.
The Board's plan to condition the use of Bastard Out of Carolina comports
with its power to make "the final decision for controversial reading
matter" and constitutes the application of this power to a specific work
of literature. The conditions imposed by the Board reflect value choices
that the Board is authorized to make on behalf of the public it serves.
[7] We acknowledge that educational policy can affect the working
conditions of teachers. We have struggled with this interaction in prior
cases.[fn]2 In this case, the conditions imposed on the teaching of
Bastard Out of Carolina retain their identity as educational policy
because these conditions reflect the responsibility of the Board for
reconciling conflicts between curriculum content and the sensitivities of
parents about what their children are taught. The challenged conditions
are an attempt to control the impact of that content on students.
Although the conditions may affect a teacher's preparation of a lesson
plan, this incidental effect on teaching techniques does not transform an
educational policy into teacher working conditions.
[8] The arbitrator erroneously found such a transformation because
of the possibility of teacher discipline based on the difficulty of
complying with the conditions imposed by the Board. The arbitrator
reasoned as follows:
(1) The restrictions may impinge upon the Grievant's ability to
effectively teach, which may result in poor evaluations and the
possibility of termination of employment
____________________
2. See, e.g., Biddeford Teachers Ass'n, 304 A.2d 387 (Me. 1973); Cape
Elizabeth Sch. Bd., 459 A.2d 166 (Me. 1983).
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for just cause pursuant to Article 3.3 of the agreement.[fn]3
(2) Pursuant to Article 2.2 of the agreement,[fn]4 the
reasonableness of a regulation or condition adopted by the Board
must be challenged at the time it is promulgated. It could not be
challenged in the just cause hearing.
The flaw in this reasoning is the arbitrator's confusion between two
different grievances; (i) a facial challenge by a teacher to the
reasonableness of a regulation or policy adopted by the Board, such as
the grievance in this case; and (ii) a challenge by a teacher to the
discipline imposed by the Board for the teacher's lack of compliance with
a Board policy or regulation, based on the teacher's assertion that
compliance was impractical because of the deficiencies of the policy or
regulation. The grievance involving a facial challenge would have to be
filed within fourteen days of the promulgation of the policy or
regulation. The grievance contesting the discipline, however, would
have to be filed within fourteen days of the discipline because such a
grievance is a challenge to the discipline, not to the validity of the
policy or regulation. An arbitrator deciding if there was just cause for
discipline could consider the teacher's claim about the difficulties of
compliance. SAD # 58 concedes this point.[fn]5 The arbitrator's concern
to the contrary is groundless.
The entry is:
Judgment vacated. Remanded for the entry of a judgment vacating the
arbitration award.
____________________
3. Article 3.3 of the agreement provides: "no continuing contract
teacher shall be reprimanded in writing, suspended, nonrenewed, or
dismissed without just cause."
4. Article 2.2 of the agreement provides: "[a] grievance to be
considered under this procedure must be initiated by the teacher within
fourteen (14) calendar days of its occurrence, or within fourteen (14)
calendar days of when the teacher should have known of its occurrence."
5. SAD # 58 states: ". . . in the event of actual discipline the
reasonableness of administrative actions and rules would at that time
be an element in determining whether 'just cause' existed for such
discipline . . . ."