SJC backs dismissed Lowell teacher

Failed 2003 test of English fluency

By John R. Ellement and James Vaznis
Globe Staff / May 5, 2010

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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 yesterday 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 while on medical leave.

Srinivas Ramineni, Robishaw’s attorney, said in a statement that the ruling indicates that evidence overwhelmingly showed termination was unjustified.

“Phanna Robishaw has stood up to the Lowell School District, who failed to establish just cause to terminate her employment,’’ Ramineni said. “The Lowell School District failed to establish that the language tests administered to Ms. Robishaw were valid, and thus the school district did not meet its burden of proving that Ms. Robishaw was not fluent in English.’’

Robishaw was among a few dozen teachers around the state targeted for removal seven years ago as school districts implemented a new law that required some teachers who are nonnative speakers of English to pass English fluency exams. The new requirement was part of a referendum, passed by voters in 2002, that overhauled the way students who lack fluency in English are taught — requiring in most cases that all subjects be taught in English rather than in a student’s native language.

In its ruling, the SJC said it was not passing judgment on the validity or legality of the English-speaking requirement, which remains a contentious issue in education. Instead, the SJC believed Middlesex Superior Court Judge Dennis J. Curran overstepped his authority in 2008, when he overturned the arbitrator’s deci sion. Curran, while conducting an independent review of the evidence, concluded that an audiotape of Robishaw speaking proved she was unfit to teach. The arbitrator had given little credence to the tape.

The SJC said that under state law, judges cannot wholly substitute their own conclusions for those made by an arbitrator.

“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.

Lowell schools Superintendent Chris A. Scott, whose tenure began after Robishaw’s termination, said yesterday afternoon that she had not yet seen the ruling but that the school department would comply with it. The department’s attorney is reviewing the decision.

A survivor of the murderous Khmer Rouge regime, Robishaw started teaching in Lowell in 1992 and had worked at the Greenhalge School, where nearly half the students were of Cambodian ancestry. For the next 10 years, she consistently received positive reviews by school administrators, according to the ruling.

But a new principal came on board at the Greenhalge in fall 2002 and questioned Robishaw’s fluency in English, along with that of a few other teachers. In January 2003, the principal gave Robishaw a negative review. A month later, Robishaw experienced post-traumatic stress disorder linked to her life in Cambodia and took a medical leave.

All the while, the Lowell School Department began to implement the teacher-test requirement under the new law. Robishaw, who held several state teaching licenses, requested a postponement of the test because she was on medical leave, but the district forced her to take the exams that spring. Robishaw failed.

The district’s effort to remove Robishaw, however, stalled, as she remained on a medical leave for about two years. In 2005 she notified the district of her intent to return that fall. The district, citing the 2003 failures, then fired her.

In 2007, an arbitrator ruled that 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 arbitrator ordered her reinstated with back pay and benefits to August 1, 2005.

The School Committee appealed, and a Middlesex Superior Court judge ruled that the public policy requirements approved by voters in the referendum must be applied to Robishaw.

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