Press Release

Co-Counsel AALDEF, Weil Gotshal Successfully Reject Flawed “Fluency” Test

Lowell, MA—Three Lowell public school teachers are to be reinstated after the American Arbitration Association issued a decision Monday awarding them full back pay, seniority, pension, health benefits, and the right to return to their classrooms after finding that Lowell school administrators did not have just cause for their dismissal. Vandy Duch, Vong Oung, and Pedro Espada—all tenured public school teachers who were certified to teach mainstream math and science in the Lowell school system—had been singled out along with other non-native-English speaking instructors by the Lowell School Committee in 2003 to take English fluency tests, and then dismissed for allegedly failing to prove their proficiency.

The arbitration hearings, which concluded in the fall of 2005, revealed that Lowell School Committee officials dismissed Mr. Duch, Mr. Oung, and Mr. Espada based on the results of two fluency tests that have never been shown to measure the English proficiency needed to be a K-12 teacher. One of the tests was not even authorized by the Massachusetts Department of Education.

“Why were educators with stellar records singled out for scrutiny and subject to an unapproved test?” said co-counsel Khin Mai Aung, staff attorney of the Asian American Legal Defense and Education Fund, a civil rights organization. School officials operated under flawed assumptions based on these teachers national origin and linguistic backgrounds, and in doing so, stripped their employees of their constitutional rights and failed to even consider the best evidence of fluency.

“This decision affirms that the teachers dismissal was unjustifiable,” said co-counsel James Messenger, attorney from the firm Weil, Gotshal & Manges LLP. In singling out non-native English-speaking teachers for testing, Lowell impermissibly discriminated against those teachers and acted against the best interest of its students and the City.

In November 2002, Massachusetts passed Question 2, which required that nearly all subject matter classes in the public school system be taught in English by teachers who were both fluent and literate in English. Question 2 did not define fluency, nor state that only non-native English speakers had to demonstrate English fluency or literacy. Other school districts made the so-called fluency determination based on classroom observation, interviews, or assessment of a teachers educational credentials and teaching track record. The Lowell School Committee, however, did not use classroom observation or interviews in their assessments.

“All my friends in the community know that I had been teaching for many, many years, and my co-workers were upset when they first heard about our firing,” said Mr. Duch. This decision is a victory for Lowell.

“After almost three years, it was exciting hear the news and to know that there is also justice in the classroom. I miss my work and look forward to going back and teaching,” said Mr. Oung.

“I had been forced out without consideration of the good evaluations or their thinking clearly about it—it was not right. It was devastating for my family, because everything had suddenly become closed to us. My son was planning to attend a university,” said Mr. Espada. With this decision we are finally getting back what we deserve—respect and dignity.

Mr. Duch, 43, fled Cambodias Khmer Rouge regime to a United Nations refugee camp in Thailand in 1979, where he studied English through a U.N. program. He went on to work as a bilingual teaching assistant translating for the U.N. when he was relocated to a refugee camp in the Philippines. Mr. Duch immigrated to the U.S. in 1983, where he worked for a California governmental agency, then moved to Lowell in 1984. He received his Bachelors of Science from Franklin Pierce College, and earned a teaching certificate. He began teaching in the Lowell school system in 1985. Mr. Duch taught bilingual classes at Daley Middle School in Lowell for a total of 17 years, and from 1990 to 2000, was also asked and assigned to teach two math classes to native English-speaking students. In 2001 and 2002, Mr. Duch taught mainstream students in a Title I class.

Mr. Oung, 39, was forcibly removed from his parents at age 12 and grew up as an unaccompanied minor in a U.N. refugee camp in Thailand. He moved to Falmouth, Maine at the age of 16, and his foster mother, the principal of a junior high school, encouraged his love for education. Oung attended Falmouth High School and graduated in the top 15% of his class, and attended Salem State College to get a teaching degree. He taught in the Lowell School District beginning in 1994, teaching bilingual classes at Bartlett Middle School, and was eventually asked to teach native English-speaking students in several assignments, including an MCAS preparatory class. A vital member of the school, he also coached Bartletts volleyball team.

Mr. Espada, 62, was born in Puerto Rico and enlisted in the U.S. Army during the Vietnam War. After passing 13 skills tests administered in English, the Army placed him in a war-zone military communications post and in command of English-speaking soldiers. He received four medals upon completing his service in 1971. After teaching in Puerto Rico for almost 11 years, he was recruited by the Massachusetts Department of Education and taught mainstream and bilingual classes at Lowell’s Robinson Middle School from 1992 to 2003. Mr. Espada was actively involved in the school community, organizing a Hispanic Parents Advisory Council to involve Latino parents in the school district and raise students standardized test scores, and served as a hearing officer for school disciplinary issues. He also volunteered as Robinson’s basketball coach for four years, and volleyball coach for three years, repeatedly leading both teams to city championships.

The Lawyers Committee for Civil Rights Under Law of the Boston Bar Association had served as co-counsel for Mr. Espada’s case.

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