Sunday, February 22, 2015

Reinstatement of teacher who required autistic student to wear sign not contrary to public policy

So held the Commonwealth Court of Pennsylvania in Colonial Intermediate Unit 20 v. Colonial Intermediate Unit 20 Education Association.

The dispute arose from the dismissal of a life skills special education teacher. Several days after a group of students went on a field trip to a petting zoo, the teacher was informed that one of his students, an autistic student with special needs, had repeatedly lured a goat with food and then hit it on the nose.  In an effort to impress upon the student the inappropriateness of his behavior, the teacher hung a sign around the student's neck which read "I abuse animals." The teacher texted a photo of the student with the sign to an associate teacher who had brought the incident to his attention. The student became upset, and the associate teacher and another staff member calmed him and altered the sign to read "I love animals." When the student was returned to the teacher's classroom he created a second sign reading "I abuse animals" and hung it on the student's back. The incident was reported to the school's principal and an investigation was conducted. The teacher was ultimately dismissed for this incident as well as other incidents occurring during previous years. The teachers union filed a grievance and arbitrated the dismissal.

Arbitrator Rochelle Kaplan sustained the grievance in part, converting the dismissal into a 53 day suspension, and conditioning grievant's reinstatement on participation in an improvement plan created by the Employer. The Arbitrator concluded:

The evidence showed that placing the sign on [Student] was not a proper educational technique to use, however, this incident is not the same as a teacher using drugs, accessing porn on a school website or sexually or physically abusing students. There was no evidence to suggest that placing a sign on [Student] violated a morality norm in an educational setting or that it offended the morals of the community.
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[Employer] believes in `positive behavior supports' and prohibits `aversive techniques.' The Grievant was aware of the principle of `positive behavior supports.' However, what those concepts mean in practical terms and implementation appear to be subjective. Thus, in order for Grievant to have willfully violated these policies, there had to be some showing that the Grievant was trained on the principles and was aware that the techniques he was using were in clear derogation of the directives. Thus, [Employer] failed to prove that the Grievant willfully violated the school's directives.
* * * 
The Arbitrator concludes that the Grievant's conduct did not constitute immorality, cruelty, persistent negligence, willful violation of [Employer's] directive, or willful neglect of duties. Thus the dismissal on those grounds cannot stand.

The Arbitrator also concluded that the School District had not established that grievant had used excessive force when dealing with students. 

The School District sought to set aside the award as in excess of the Arbitrator's authority and in violation of public policy. The trial court rejected this effort, and the Commonwealth Court has now affirmed. 

The Court found the Arbitrator's decision was rationally derived from the cba and was within the authority of the Arbitrator. Turning to the public policy issue, the Court determined: 

...under the circumstances presented to Arbitrator, we discern no error in a determination that any public policy regarding aversive techniques was not so well-defined and ascertainable by reference to the laws and legal precedents as to qualify for the narrow exception to the essence test.
In light of the conditions imposed by Arbitrator, which address Employer's concerns in this case, Arbitrator's award does not pose an unacceptable risk to any well-defined or dominant school law or policy.... Accordingly, we reject Employer's contention that the trial court erred in failing to determine Arbitrator's award violates the public policy exception.

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