Lowell teacher fired for failing English fluency tests may get job back

By John R. Ellement, Globe Staff

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 today 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.

"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.

In its ruling, the SJC said it was not passing judgment on the validity or legality of the English-speaking requirement that was added to the state's lawbooks as the result of a statewide referendum. In 2002, voters approved Question 2, which required, among other things, that all classroom teachers pass proficiency tests in English.

In 2003, the Lowell School Department implemented the new rules and Robishaw was required to take the tests. At the time, Robishaw had taught for 10 years at the Greenhalge School, where nearly 50 percent of the students were Cambodian immigrants.

A survivor of the murderous Khmer Rouge regime, Robishaw had four state teaching licenses to her credit when she failed two types of fluency tests, according to the SJC. She went on medical leave for post-traumatic stress disorder linked to her life in Cambodia and sought to get her job back in 2005.

But Lowell school officials, citing the 2003 failures, fired her instead. In 2007, an arbitrator ruled 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 school committee appealed, and a Middlesex Superior Court judge ruled that the public policy requirements approved by voters in Question 2 must be applied to Robishaw. The judge included an audiotape of Robishaw speaking in the ruling to strengthen the conclusion that Robishaw was unfit to teach.

But the SJC said that under state law, judges cannot wholly substitute their own conclusions for those made by an arbitrator. "The judge was not free to reject the arbitrator's findings or his legal conclusion,'' Botsford wrote.

The SJC said that the arbitrator's conclusions did not violate state law requiring teachers to be fluent in English because the proficiency testing "must have been conducted in a procedurally appropriate manner and must be based on the use of substantively valid standards. If it was not, the superintendent's fluency determination need not be accepted. The judge was not free to reject the arbitrator's findings or his legal conclusion.''