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SAD # 58 v. Teacher's Association (corrected 11-20-97)
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 219
Docket:	Fra-97-21
Argued:	September 5, 1997
Decided: 	November 19, 1997	

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

SCHOOL ADMINISTRATIVE DISTRICT NO. 58

v.

MOUNT ABRAM TEACHERS ASSOCIATION

LIPEZ, J.
	
	[¶1]  School Administrative District No. 58 ("SAD #58") appeals from
the judgment entered in the Superior Court (Franklin County, Perkins, ARJ)
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.	[L]essons 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.	[P]assages 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,{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, ¶ 2, 695 A.2d 1196, 1997; 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, ¶ 2, 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, ¶ 2, 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
 
[t]o 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
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.{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 for just cause pursuant to
Article 3.3 of the agreement.{3} 
(2)  	Pursuant to Article 2.2 of the agreement,{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.{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.

Attorneys for plaintiff:

Donald A. Kopp, Esq., (orally)
Deirdre M. Smith, Esq.
Drummond, Woodsum & MacMahon
P O Box 9781
Portland, ME 04104-5081

Attorney for defendant:

Shawn C. Keenan, Esq., (orally)
Genaral Counsel
Maine Education Association
29 Christopher Toppi Drive
South Portland, ME 04106-6901