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The Boston Globe

Opinion

LAWRENCE HARMON

Teacher, then arbitrator, overstep

Everyone is guilty of loose talk on occasion. But there’s a gulf between a slip of the tongue and sexualizing a high school student, especially on the part of a teacher. Former Lexington High School physics teacher Mark Zagaeski fell into that trap — twice — and lost his job. But along comes a labor arbitrator to extricate Zagaeski, dust off his reputation, and reward him with a couple of years of back pay.

The facts of the case as they appear in court documents aren’t in dispute. In 2011, Lexington school superintendent Paul Ash fired Zagaeski for “conduct unbecoming a teacher.’’ It began when a 17-year-old student jokingly suggested that she would pay Zagaeski for a better grade. Another student interjected, “You mean short of sexual favors.’’ That prompted Zagaeski to chime in, “Yes, that is the only thing that would be accepted.’’ The class laughed. A few days later in a tutoring session, the girl asked Zagaeski again if he would accept pay for a better grade. “Well, no, you know that the only thing that I would accept is a sexual favor,’’ he quipped. Another student present laughed. But that exchange prompted the girl who was subjected to the remark to complain to school officials, leading to Zagaeski’s termination.

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This case doesn’t rise to the level of super creepy. But the bottom line is that any teacher who violates a school district’s sexual harassment policy — with a student no less — should expect to be shown the door. And the public has a right to expect that a labor arbitrator who substantiated the facts will not then substitute his opinion on the proper punishment for that of a professional educator. Yet that is what arbitrator Philip Dunn did last year by reinstating Zagaeski and slapping him on the wrist with a two-day suspension due, in part, to the finding that the sexual harassment was “relatively minor’’ and only “nominally constituted conduct unbecoming a teacher.’’

To its credit, the Lexington school system resisted. First, it appealed the arbitrator’s decision to Middlesex Superior Court. Rebuffed there, Lexington School officials turned to the state’s Supreme Judicial Court, which heard oral arguments earlier this month. Now it falls to the state’s highest court to determine if it is strictly bound by the arbitrator’s findings — as Zagaeski argues — or if the arbitrator exceeded his authority — as Lexington claims.

Zagaeski, known as Mr. Z, used humor and informality to establish a rapport with his students. But he didn’t know where to draw the line. According to court documents, Zagaeski had a habit of overlooking racially tinged or sexually loaded remarks made in the classroom. Sometimes he joined in the banter. To his credit, he acknowledged to officials his failure to maintain an “appropriate boundary between myself and my students.’’ Zagaeski wants to chalk it up to a learning experience. School officials want him gone.

Maybe Zagaeski did learn his lesson. But that determination should belong in the hands of school officials, not a third party. State law grants hiring and firing authority to school superintendents, who are accountable to parents and the public. Arbitrator Dunn snatched away that power, leaving superintendents without the clout they need to manage effectively. The proper role of an arbitrator in a teacher dismissal case should be to determine if the superintendent met the burden of proof. They aren’t supposed to step in and run place.

There are plenty of good arbitrators around. But some have a tendency to go off the rails. Say a police commissioner fires an officer for using excessive force and lying to Internal Affairs investigators, as occurred last year in Boston. An arbitrator ordered the officer reinstated with back pay in that case, too, after determining that applying a prohibited chokehold “is not the same thing as choking or strangling’’ someone. Some distinction.

Arbitrator Dunn’s ruling isn’t nearly as outrageous. But it involves some tortuous reasoning of its own. Dunn argues, for example, that Zagaeski’s reinstatement is actually in the “best interests’’ of Lexington students due to his talent for reaching hard-to-teach students in the high school’s integrated math-physics program. Does that mean that a teacher’s ability to shed light on mathematical abstraction negates sexual harassment? Not according to state education law, which mandates that school districts provide students a place to learn “without threats to their sense of security.’’

Teachers need some leeway when it comes to instruction style. But not this much. Arbitrators need some leeway when interpreting misconduct statutes. But not this much. It should be obvious to anyone that a teacher who talks of trading grades for sexual favors — even in jest — doesn’t belong in the classroom.

Lawrence Harmon can be reached at harmon@globe.com.

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