Decision:  1997 ME 219
Docket:    Fra-97-21
Argued:    September 5, 1997
Decided:   November 19, 1997



     Before:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and 

     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 


     [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 


     [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

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).

     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 

     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

     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).

     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 . . . ."