Gilroy
– One month after four high school teachers spent the day not
speaking, district officials announced they cannot prevent the same
thing from happening next year without changing the collective
bargaining agreement.
Gilroy – One month after four high school teachers spent the day not speaking, district officials announced they cannot prevent the same thing from happening next year without changing the collective bargaining agreement.
In a seven-page document, the Gilroy Unified School District board said that unless changes are made to the collective bargaining agreement with teachers, the board cannot legally prohibit teachers from participating in future Day of Silence demonstrations during class time.
The document gives the opinion of the district’s law firm Kay & Stevens, and outlines various California Education Codes and current school board policies in the collective bargaining agreement that prevent the board from altogether banning teachers from participating in activities such as the Day of Silence.
“What the opinion said was that based on our current policies, they recommended us not to prohibit teachers from participating,” Superintendent Edwin Diaz said. “When we revise our policies and collective bargaining agreement, the legal opinion is basically saying that we should be in a better position to prevent teachers from participating in Day of Silence in the future.”
The statement is authored by the GUSD school board and is based on the summary provided by the district’s legal counsel. The district has refused to release the opinion, citing attorney client privilege.
Board policies that require revision to implement the board’s desire to protect instructional time from classroom interruption are those relating to harassment and discrimination issues, the political activities of staff members, and professional teaching standards.
According to the board’s statement, the district’s legal counsel advised the district not to prevent teachers from partaking in the Day of Silence April 13 because, “under the District’s current policies, preventing teachers from participating in the Day of Silence in 2005 could have been misinterpreted as the District taking a position against the goals of the Day of Silence and suggesting that the District is not committed to preventing discrimination and harassment.”
The Day of Silence is a nationally recognized demonstration promoting tolerance for gay, lesbian and transsexual individuals by encouraging participants to remain silent for one day to symbolize their oppression. Four GHS teachers and about 16 students partook in the Day of Silence, igniting debate throughout the community about teachers participating during instructional class time.
While the board unanimously supports the message behind the Day of Silence, it does not support teachers participating in the classroom because of its interference with classroom instruction.
California Education Code section 201(f) states that “public schools must promote tolerance and sensitivity in schools and in society as a means of responding to potential harassment and hate violence.” Had teachers been prevented from participating in the nationwide protest, the legal counsel argued they could be in violation of this code.
But the Pacific Justice Institute, a nonprofit organization, which has offered free legal advice to the board, came to a different conclusion.
“The board’s response is spineless,” said Kevin T. Snider, chief counsel for the PJI. “The board does not have to negotiate with teachers (about this). Teachers must teach.”
Snider’s argument uses the interpretation that teachers can be prohibited from participating in the Day of Silence because PJI considers it a breach of the teacher’s contract with the district to teach at full capacity, and interrupts classroom instruction.
“It is a breach of their fundamental duty to perform instruction,” Snider said. “The district can insist that teachers show up to work and perform their duties.”
The statement includes PJI’s explanation, but cites state education code Section 220, which prohibits discrimination of staff and students for any reason, as the legal counsel’s reason for not prohibiting teachers from participating in the Day of Silence.
“The District’s legal counsel has concluded that because the purpose of the Day of Silence is to protest discrimination and harassment of students based on sexual orientation and gender identity and to make such discrimination and harassment unacceptable in schools, then the message behind the Day of Silence is not a controversial one,” the statement reads.
The board’s statement concludes that the legal counsel does not consider the Day of Silence to be a political activity because state education law requires the purposes and goals behind the Day of Silence.
Unless the district can negotiate changes to the academic freedom clause in the collective bargaining agreement with teachers, it appears teachers will remain eligible for participation in the Day of Silence in the future, despite a unanimous opposition from the school board.
“Hopefully we’ll all work together,” said GUSD board president T.J. Owens regarding teachers and board members reaching an agreement about the usage of instructional time. “There’s many different ways to participate in Day of Silence activities that still have the same message.”
According to Michelle Nelson, president of the Gilroy Teachers Association, the GTA has not reviewed the board’s statement, but is aware that any board policy changes will have to be negotiated in their contract.
The school board and GTA meet Monday, May 23 to discuss contract negotiations. Amendments regarding the Day of Silence is not on the agenda.
Statements on participation
From the Gilroy Unified School District’s board statement released Friday regarding the legal opinion on teacher participation.
• “The District is required to bargain with the Gilroy Teachers Association before changing the collective bargaining agreement and implementing changes to Board policies that are mandatory subjects of bargaining.”
• “Board Policies need to be revised and provisions of the collective bargaining agreement need to be negotiated in order to ensure that students are not subject to hostile learning environments … Board Policies need to be revised and provisions of the collective bargaining agreement need to be negotiated in order to comply with the Board’s intent regarding classroom time.”
• Education Code Section 201
(b) “California’s public schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.”
(f) “It is the intent of the Legislature that each public school undertake educational activities to counter discriminatory incidents on school grounds.”
• Education Code Section 220
“No person shall be subjected to discrimination on the basis of sex, ethic group identification, race, national origin, religion, color, mental or physical disability or any actual of perceived characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code [this includes sexual orientation and gender identity.]”
• Education Code Section 233.5
(a) Each teacher shall endeavor to impress upon the minds of the pupils the principles of morality, truth, justice, patriotism, and a true comprehension of the rights, duties and dignity of American citizenship, and the meaning of equality and human dignity, including the promotion of harmonious relations.”
• The Collective Bargaining Agreement:
3.1.1.1. “A unit member shall have reasonable freedom in the classroom presentations and discussions and may introduce political, religious, or to otherwise controversial material, provided that said material is relevant to the course content.”
3.1.1.2. “In performing teaching functions, unit members shall have reasonable freedom to express their opinions on all matters relevant to the course content in objective manner. A unit member, however, shall not utilize her/his pupils with her/his personal, political and/or religious views.”
