LEXINGTON, Mass. – A pending lawsuit in the Massachusetts Supreme Court could have major implications on the ability of public school officials to manage their staff, and to terminate teachers who conduct themselves inappropriately with children.
The case involves Lexington Public Schools physics teacher Mark Zagaeski, who was fired in 2011 for jokingly telling a 17-year-old student the only way she could improve her grades, aside from extra work, was through sexual favors, court records show.
Lexington Superintendent Paul Ash fired Zagaeski after the girl reported the teacher’s comments to a school counselor, and Zagaeski appealed his decision to an arbitrator, who decided the incident was “minor” and did not warrant termination.
The arbitrator in April 2012 claimed that Zagaeski’s academic accomplishments with students and his positive performance evaluations meant his continued employment was in the best interests of children. The arbitrator ruled that the teacher’s transgressions only justified a two-day suspension, and the district should give Zagaeski back pay for lost work time and cover his legal expenses associated with the case.
Lexington school officials appealed the arbitrator’s decision to the Middlesex Superior Court, which upheld the arbitrator’s decision in May 2013. The district appealed that ruling, as well, and seven justices of the Massachusetts Supreme Court heard oral arguments in the case last week, news reports and court records show.
“The Supreme Judicial Court decision to hear Lexington School District vs. Mark Zagaeski means the details of this case will set precedent on the role of the arbitrator throughout Massachusetts,” according to a recent Lexington Minuteman editorial. “The SJC will decide who should have the final say in personnel decisions – the school district or a third-party arbitrator – and also if, or when, there are exceptions to the rule of law.”
Zagaeski began working at Lexington schools in 2000, and was assigned to teach integrated math and physics to academically at-risk students at Lexington High School, “many of whom had behavioral problems … and/or suffered from attention deficit and learning disorders,” according to court records.
“The challenges presented by this group of students caused Zagaeski to develop a teaching style that created a more comfortable environment within which the students could better achieve academically,” Zagaeski’s attorneys wrote in a legal brief. “To this end, he adopted a less rigid, less hierarchical approach to teaching … and would often use humor as a tool for strengthening relationships.”
Through the teacher’s first decade on the job, he was repeatedly praised in performance evaluations for his teaching style and ability to connect with students, but school officials contend he crossed the line in April 2011 during two different conversations with students.
MORE NEWS: How to prepare for face-to-face classes
The first occurred when Zagaeski was teaching physics and Abi Ross (AR), a 17-year-old female student, jokingly asked her teacher, “Dr. Z, isn’t there any way I could pay you for a better grade?”
Andrew Beaman, another student in the class, spoke up: “You mean short of sexual favors?”
Beaman’s comments prompted Zagaeski to comment, in an allegedly joking tone: “Yes, that is the only thing that would be accepted,” according to court records.
“The class laughed, and Zagaeski continued by saying, ‘Don’t be ridiculous,’” according to the teacher’s legal defense. “He told AR that only more work could raise her grade, and that she could come after school for extra help if she had questions.”
A couple of days later the conversation surfaced again.
“AR came in for extra help after school a few days later. Another student, Mary Rossi, was already in the classroom when AR arrived. Zagaeski had known both students for some time – he had known AR for three years, having tutored her in the past and having taught her older siblings; he knew Mary well, too, as she had come in for extra help on several occasions over the course of that school year,” according to court records.
AR apparently again asked about paying for a better grade, and Zagaeski repeated his comments from the previous incident: “Well, no AR, you know that the only thing I would accept is a sexual favor.”
“Mary said ‘Dr. Z!’ and laughed,” according to defense attorneys, but AR relayed the incidents to her guidance counselor, who reported the inappropriate conversations to the principal. After a brief investigation, and a letter from Zagaeski to school officials acknowledging his inappropriate behavior, Superintendent Ash fired the teacher for “conduct unbecoming a teacher” in June 2011.
AR’s decision to relay the conversation to her school counselor demonstrated that Zagaeski’s comments, whether joking or not, created a hostile or offensive learning environment and violated the district’s sexual harassment policy, according to the district’s legal brief.
Attorneys for both parties largely agree on the sequence of events, but disagree on the severity of the comments and punishment.
Zagaeski appealed his termination and the case was referred to arbitrator Philip Dunn, who made several findings.
First, he agreed with district officials that Zagaeski’s conduct was “conduct unbecoming a teacher.” He also found that the teacher’s comments “did offend and created a hostile or offensive educational environment for (AR),” court records show.
“(Zagaeski), in a relationship of power over the student, was expressing an offer that he would give (AR) a better grade in return for sexual favors. Even though intended as a joking comment to be taken only as such, entirely in jest, they were inappropriate words for a teacher to utter,” Dunn wrote.
“Furthermore, from a subjective perspective, as it turned out, Dr. Zagaeski’s words did offend and created a hostile or offensive educational environment for (AR.) The fact that she raised complaint about what he had said to her establishes as much …”
Dunn concluded that Zagaeski had, in fact, violated the district’s sexual harassment policy and that the violation justified punishment. But Dunn disagreed with the district’s decision to terminate Zagaeski, and issued a reprimand he believed was more appropriate.
“I find that Dr. Zagaeski committed an isolated, relatively less egregious, unintended act of sexual harassment, which nominally fits within the category of conduct unbecoming a teacher, but was not misconduct rising to the level for which termination was contemplated by the statute,” Dunn wrote.
Dunn determined the “most severe discipline for which there would have been just cause … would have been a suspension of two work days,” and his termination wasn’t in “the best interests of the pupils in the district,” according to court records.
Dunn ordered Zagaeski reinstated with a two-day unpaid suspension, with back pay and legal expenses covered by the district.
Lexington schools filed a complaint with the Middlesex Superior Court to vacate Dunn’s arbitration award. School attorneys argued Dunn overstepped his authority by making a judgment on what’s “in the best interest of the pupils in the district,” and his decision conflicted with public policy.
The Superior Court, however, disagreed with the district on both fronts and upheld the arbitration award.
Supreme Court will decide
In court documents, Lexington officials frame the case a question of whether an arbitrator has the authority to reinstate a teacher who committed “conduct unbecoming a teacher” for making “grades for sex” comments to a student that also violated the district’s sexual harassment policy.
School attorneys also question whether an arbitrator can rely on what they believe to be in the “best interests of the pupils in the district” when reinstating a teacher, and whether a teacher making “grades for sex” comments violated public policy.
Zagaeski’s lawyers suggest the case rests on whether an arbitrator acted within his scope in reinstating and awarding back pay to a teacher for an “isolated, non-egregious and unintended violation of the school’s harassment policy, which the arbitrator finds to only nominally constitute conduct unbecoming a teacher,” according to court records.
The defendant also questions if “there is a well-defined and dominant public policy of the Commonwealth prohibiting the reinstatement of a teacher who committed an isolate, non-egregious and unintended violation of the school’s sexual harassment policy, acknowledged his lapse in judgment, and expressed a readiness to correct the behavior and continue an otherwise excellent teaching career.”
The Massachusetts Teachers Association, the statewide teachers union, also filed an amicus brief supporting the arbitrator’s decision, arguing the district did not have “just cause – as defined by state statute.” They argue that Dunn had the authority to relax the penalty.
The Massachusetts Association of School Committees, Inc., which represents 310 city, town and regional school districts, filed an amicus brief in support of Lexington school officials. The organization argued that, in this case, and countless others to follow, “if the Court does not sustain good faith administrative decisions, superintendents and principals will be forced to parse the implications of the word ‘nominal’ and engage in a ‘compared to what’ analysis in all discipline cases.”
The Massachusetts Supreme Court heard oral arguments on the case last Tuesday, and seemed to hone in on whether the grounds for Zagaeski’s termination conflicted with public policy.
“What public policy in 2014 would allow an arbitrator to reinstate a teacher found guilty of sexual harassment? That has no place in the Lexington Public Schools,” the district’s attorney, Geoffrey R. Bok, told the court, according to the Lexington Minuteman.
Chief Justice Roderick L. Ireland also questioned Bok about Dunn’s finding that Zagaeski’s conduct was a relatively minor action unbecoming a teacher.
“This teacher made repeated comments that were found to be offensive. I don’t feel that to be minor,” Bok replied, according to the news site.
While a final decision in the case isn’t expected any time soon, “Parents as well as students should watch the outcome of this case and be aware of whether the school district’s decision to fire a teacher, within the bounds of state law, can be overturned by a third party,” the Minuteman opines.