The Difference Between The "Just Cause " Standard And The "Arbitrary & Capricious" Method The DOE Wants To Use In The Teacher Disciplinary Process

The DOE leaked their September 10th, 2009 contract demands to the News Media and while the DOE's demands are outrageous and disrespectful to the teaching profession. One of the more ominous demands is to replace the "just cause" standard to "arbitrary & capricious" as the rule in Arbitrator decision making. Why would the DOE want to replace the "just cause" standard with the "arbitrary & capricious" term is very simple. The use of the "arbitrary & capricious" term allows the Arbitrator to find the teacher guilty of the accusations without sufficient evidence to show the charges against the teacher is true. Let's look at the difference between the "just cause" standard and "arbitrary & capricious" term to determine teacher discipline.

Thanks to South Bronx School, he included a condensed version of the seven tests that the Arbitrator must find to be true to terminate a teacher.

"Just Cause" generally means; "the arbitrator first asks whether the employee's wrongdoing has been proven by the employer, and then asks whether the method of discipline should be upheld or modified." However in 1966, arbitrator, Professor Carroll Daugherty expanded this into seven tests that are frequently used by arbitrators. They are:

• Was the employee forewarned of the consequences of his or her actions?
• Are the employer's rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee?
• Was an effort made before discharge to determine whether the employee was guilty as charged?
• Was the investigation conducted fairly and objectively?
• Did the employer obtain substantial evidence of the employee's guilt?
• Were the rules applied fairly and without discrimination?
• Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record?

Therefore, the burden of proof is on the DOE to prove that the charges must meet all seven tests and that termination cannot be a discipline if all seven tests are not met. This makes it difficult for the DOE to achieve their ultimate goal in firing the teacher. Especially, if the teacher can show that the investigation was unfair and biased. I wrote about the corrupt investigations that go a long way in getting the teacher reassigned but also harms the DOE's case for termination against the teacher. On the other hand if the DOE gets their wish and only needs the "arbitrary & capricious " requirement, the burden of proof shifts from the DOE to the teacher since it is not based on actual evidence but on how the Arbitrator feels about the teacher. Arthur Goldstein wrote a piece on the DOE's contract demands which includes his take of the DOE's "arbitrary & capricious" demand and is a must read. South Bronx School also included the definitions of "arbitrary & capricious" and left in the hands of one person (Arbitrator) is quite scary.

Arbitrary is defined as;

• depending on individual discretion (as of a judge) and not fixed by law
• marked by or resulting from the unrestrained and often tyrannical exercise of power

Capricious is defined thusly;

• sudden, impulsive, and seemingly unmotivated notion or action
• a sudden usually unpredictable condition, change, or series of changes

In other words, the DOE can simply claim the misconduct happened and use hearsay evidence to meet the greatly diminished standard of "arbitrary & capricious" as the basis for terminating the teacher. This would greatly increase the termination rate and lead to even more teacher reassignment and 3020-a charrges.
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