Press Release

Mass. Appeals Court Rejects Flawed English “Fluency” Test; Affirms Reinstatement of Veteran Teachers in Lowell Public Schools


Three tenured public school teachers in Lowell, MA–two Cambodian Americans and one Puerto Rican–won a major victory when the Massachusetts Court of Appeals ruled yesterday that they had been improperly dismissed under procedures that failed to assess accurately their English language fluency.

AALDEF staff attorney Khin Mai Aung, who represented Vandy Duch, Vong Oung, and Pedro Espada at their arbitration proceedings and in the court below, said, “We are glad that the appeals court recognized that qualified teachers who are not native English speakers must be treated fairly under the law.” She added: “The Lowell school officials effectively stripped their employees of basic constitutional and statutory rights. Teachers should be evaluated on their classroom effectiveness, not their performance on an arbitrary and unproved test.”

The Court of Appeals affirmed the lower court decision and arbitration award, mandating reinstatement of the three teachers with full back pay and related benefits. It found that the Lowell School District had improperly subjected Duch, Oung and Espada and other non-native English- speaking instructors to “fluency testing,” rather than classroom observation and personal interviews, as mandated by the state Department of Education regulations. The Court further held that it would be unfair to rely on the fluency tests when the testers were not available for cross examination.

Co-counsel James Messenger, a partner at Weil, Gotshal & Manges, said: “The teachers contended that English fluency should be determined by classroom observation, and the Court of Appeals agreed that the Department of Education’s own regulations clearly established classroom observation as the preferred method of evaluation.”

A coalition of local and national civil rights groups represented by the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association-which also co-counseled to represent Mr. Espada in the underlying arbitration–filed an amicus brief, asserting that it would be in the public interest to reinstate the teachers.

In November 2002, the State of 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. Duch, Oung and Espada were certified to teach mainstream math and science and had received satisfactory ratings on several occasions, but in the fall of 2003, school officials determined they were not exempt from fluency assessment.

Pursuant to their arbitration victory, all three teachers returned to work in Lowell public schools in the spring of 2007 and are awaiting monetary damages, including back pay, pension benefits, and lost seniority.

For more information:
Khin Mai Aung
Staff Attorney
212.966.5932 ext. 219