STATE OF RHODE ISLAND

0026-00

STATE OF RHODE ISLAND COMMISSIONER

AND OF

PROVIDENCE PLANTATIONS EDUCATION

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Edward Charland

Pawtucket School Committee

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DECISION

Held: The school committee has failed to

prove by a preponderance of the

evidence that good and just cause

exists for the dismissal of Mr.

Charland. Mr. Charland is to be

restored to his position with back pay.

Since Mr. Charland was under a duty

to mitigate his damages, any sums he

earned from other work are to be

deducted from this award of back pay.

DATE: August 11, 2000

TRAVEL OF THE CASE

The Pawtucket School Committee has dismissed Edward Charland, a tenured

physical education teacher, from his position in the public schools of Pawtucket. It was

alleged that Mr. Charland forced a fully clothed student into a shower and allowed this

student—Student R---to go to his next class soaking wet. It is also alleged that Mr. Charland

lied to the Superintendent about this incident. These events, along with certain other prior

disciplinary actions relating to Mr. Charland, were found to constitute good and just cause

for Mr. Charland’s dismissal. R.I.G.L.16-13-3 Mr. Charland has appealed this matter to the

Commissioner of Education. R.I.G.L.16-13-4

STANDARD OF REVIEW

This matter is before the Commissioner for a

de novo,

independent

decision on

whether or not Mr. Charland committed the acts that are alleged to provide the basis for his

dismissal. Slaterry v. Cranston, 116 R.I. 252, at 263(1976) The burden of proof is on the

school committee to show by a preponderance of the evidence that Mr. Charland committed

the acts alleged. Audi v. Baillargeon, 121 R.I. 455 (1979)

BACKGROUND—FINDINGS OF FACT

Justice Scalia of the United State’s Supreme Court has observed that:

School sports are not for the bashful. They require “suiting

up” before each practice or event, and showering and

changing afterwards. Public school locker rooms, the usual

sites for these activities, are not notable for the privacy they

afford. The locker rooms in Vernonia are typical: no

individual dressing rooms are provided; shower heads are

lined up along a wall, unseparated by any sort of partition or

curtain; not even all the toilet stalls have doors. As the United

States Court of Appeals for the seventh Circuit has noted,

there is an element of “communal undress” in athletic

participation.

Still, Justice Scalia’s observations are not of universal applicability. The record before

us established that at Goff Junior High School in Pawtucket it was the rule that almost all

students took showers in T-shirts and gym shorts or some other form of shower attire. It

was extremely rare for a student to go “skinny dipping” in the shower room. Students were

expected to bring a towel and a change of underclothing to each gym class so that they

would be able to take a shower in appropriate attire.

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)

“But what has changed, the boys today I find to be very modest and protective of their privacy. Boys at

that age, I believe 12, they’ll wear a T-shirt, they’ll wear their gym trunks, they’ll wear an extra pair of

We note that the school district policy of forcing children to shower, even in their

clothes, is at the source of the problem in this case—not just the teacher’s implementation

of the policy. This policy should be carefully examined to determine whether it is in the best

interest of students—particularly at the middle school age.

It was not uncommon for middle school students to resist taking a shower. Since

shower evasion was a constant problem Mr. Charland had to make special efforts to ensure

that students, in accordance with school rules, took a shower after gym class. The Pawtucket

superintendent of schools had sent a memo to all gym teachers advising them that: "Showers

should be supervised by the teacher in their respective classes.” It was not unusual for

students to slip into the shower room, wet their hair, and claim that they had taken a full

shower. Students were admonished that a full shower meant getting completely wet. In

accordance with school policy there would be shower test days where students would be

checked by the Gym instructor to be sure that they had gotten completely wet in the shower.

This was determined in part by how wet the students shower attire was. Many years of

experience—28 to be exact--had made Mr. Charland an expert at detecting shower evasion.

It should be recalled that a shower was required by school rules, and if a student failed to

take one Mr. Charland might well be held accountable for this dereliction.

Given the structure of the facilities Mr. Charland had to work with, it was impossible

for him to observe all his students at all times. The Gym was on one floor and the drying

room was on another. The showers could not be viewed from the locker room. The controls

for the gang showers were located in a closet. When the showers were being turned on, the

teacher, if he were the one starting the showers, could not see the class. At times Mr.

Charland therefore had a student start the showers. On the day we are dealing with, Mr.

Charland operated the shower controls himself since there was a potential problem with the

temperature of the water.

The locker room was extremely cramped so Mr. Charland allowed students who had

completed their showers to go back down to the gym and quietly shoot baskets until it was

time to leave for the next class. All students were expected to leave from the gym rather

than from the locker room exit—but some students would leave by the locker room exit,

which was more convenient. While teachers were expected to keep their class in view, this

was not always physically possible for Mr. Charland to do. He could not view the students in

the locker room, the gym, and the showers at the same time. No matter what he did there

would be some students, at some times, who would be outside of his view. At least some of

these students might attempt to avoid taking a shower—something that Mr. Charland was

supposed to be vigilant against.

The locker room was a noisy place filled with boisterous students who were not

always completely cooperative with every school rule. At times Mr. Charland had to tell a

student more than once to comply with school rules.

underwear, some would wear shower clogs, some students would wear socks, and some would—not all. I

would think the exception today would be …for someone to go in without any articles of clothing…”

TESTIMONY OF: Charland

THE INCIDENT—FINDINGS OF FACT

In accordance with his usual policy Mr. Charland asked the students at the beginning

of gym class whether any of them lacked the needed clothing to participate in gym class and

to take a shower. The Student R was silent. Mr. Charland informed the class that it was a

“shower test day.” This meant that Mr. Charland would take special care to be sure that all

students took a proper and thorough shower. We accept as true the following testimony

from Mr. Charland:

Now, part of the instruction for the shower test, the only way that

I can observe a shower test is to have the boys wait until I get into

a position to observe what’s going on and take your shower. Now,

many times, because the boys were allowed to go downstairs and

shoot baskets after showers, lots of times the boys will run in, take

a shower, and get out. So part of the supervision is to observe

who’s already taken a proper shower and who has not.

But any

student who enters the shower before I get to my position for

supervision can be told by me to go back into the shower

and take a shower if I feel that they have not taken a shower

for the shower test. (Emphasis added)

Students knew from the orientation process that they could be sent back to take a

shower if Mr. Charland had doubts about whether they had really taken a shower. Mr.

Charland frequently had to send boys back to take a proper shower. Some would enter the

shower, just wet their hair, and then try to claim that they had taken a shower. Other

students might simply get some part of their attire wet and pretend that they had taken a

proper shower. Mr. Charland’s 28 years of experience have given him great skill in detecting

such subterfuges. He testified and we accept as true that:

The rule for clothing in the shower, I’m not telling them what

to wear or what not to wear. I’m not making no judgments

whatsoever. If you choose to wear an article of clothing into

the shower, you have to get it wet. And its very common for

me to say, “You’re not wet enough. Get back.” Now, if it’s

gym trunks, you can tell the front and back of the clothing is

wet or dry. There’s darkness, lightness, it’s dripping, and so

forth. With a T-shirt, you can see specific areas. If they run

through the shower, the front of the shirt is wet, the back of

the shirt is not. “You’re not wet enough.” If they just run and

stick their back in the shower, the front is dry. You say

“Look, you’re not wet enough.” If they just go in the shower,

under the arm is usually the last place to get wet…. You have

to understand Mr. Hearing Officer; part of the job is hygiene.

If you’re going to wear something, it has to get wet.”

During the school year in question there were least eleven times when students

refused to take a shower. In each of these cases Mr. Charland directed the student to take a

shower. Continued refusal to take a shower was dealt with by referring the student to the

principal for discipline.

The gravamen of this case is whether or not Mr. Charland “forced” student R to

wear school clothes while taking a shower. At the school committee level there was

testimony that Mr. Charland had bodily forced Student R into the shower. At the hearing

before the Commissioner the proponents of this testimony repudiated it and admitted that

this prior testimony was not the truth. The only thing Mr. Charland ever did was to order

student R to take a shower.

The complainant student, Student R, testified that:

1) Mr. Charland was about 10 feet from him during the incident now at issue.

2) Mr. Charland never raised a hand to him.

3) Mr. Charland never grabbed him and pushed him into the shower.

4) Mr. Charland never told him to wear his school clothes into the shower

We find these four statements to be true.

Student R testified that his school clothes consisted of blue jeans and a white T-shirt

with a colorful picture on it. His gym clothes were gym pants and a white T-shirt. We find

these statements to be true.

A witness to the incident, Student N, testified that it was a shower test day and that

student R “went into the shower and got his head wet and came out.” Student N testified

that on occasion he himself had evaded taking a proper shower and that Mr. Charland had

sent him back in to take a shower: “Yeah, He’s done that to me a couple of times. Nothing

really serious. He just says, “Go back in.” We credit these statements of Student N.

Under oath Student N reputed his own prior written statement that Mr. Charland

said to student R, “to go back in [the shower] and to not bother taking off [your] shirt.”

Student N also admitted that he was not telling the truth when he testified before the school

committee under oath that Mr. Charland had pushed Student R into the shower. Given

these facts we can find no real evidence in the testimony of Student N that Mr. Charland did

anything wrong. In fact the testimony of Student N is not particularly inconsistent with the

notion that Student R tried to evade taking a proper shower, that Mr. Charland caught

Student R trying to do this, and that Mr. Charland therefore ordered Student R to take a

proper shower. This of course is exactly what Mr. Charland was supposed to do.

Student Z testified that Mr. Charland “forced [Student R] with his voice” to take an

additional shower or showers. Of course if Mr. Charland believed that a student had not

taken a shower he was supposed to order the student to do so. No one ever testified that

Mr. Charland threatened, swore at, or browbeat Student R. In fact the weight of the

testimony from all students, including student R, leads to the conclusion that Student R did

not take a proper shower the first time and that Mr. Charland made the correct decision in

ordering Student R to take another shower.

We think that assigning the strongest possible value to everything said by Student R

we have a case where:

• Student R pretended to take a shower. {Shower 1}

• Mr. Charland caught him doing this.

• Student R entered the shower again for, in his own words “4 or 5 seconds”

{Shower 2}

• Mr. Charland sent back into the shower. [Shower 3}

• When Student R was still not wet he was sent back a 4

time.

All of this was exactly what Mr. Charland was paid to do. This case comes down to

an argument that Mr. Charland knew or should have known that that Student R was wearing

his “school” T-shirt rather than his “gym” T-shirt when he entered the shower. Student R

testified that he never told Mr. Charland that he was dressed and ready to go to class. Since

student R never said that he was wearing his only dry T-shirt into the shower we can hardly

fault Mr. Charland for being unaware of this fact. In fact Student R had sufficient time to

remove his blue jeans before entering the shower. It was a completely normal event to see a

student enter the shower room wearing a dry T-shirt and gym shorts.

On cross-examination Student R admitted that his gym T-shirt, which he ostensibly

had worn to take his first shower, was still dry except for some perspiration. In fact why he

did not put this dry T-shirt on in preference to a soaking wet one is a mystery that was never

resolved in his testimony. At one point he testified that he took his first shower in his gym

shirt, at another point he testified that he did not wear any shirt for his first shower, and

after a recess in the hearing he testified that he did wear his gym shirt into the shower.

But

if he wore this gym shirt into the shower and if he showered properly this gym shirt would

have been wet. Instead Student R testified that it was dry. None of this hangs together.

Another student, Student G, testified that there was no way for Mr. Charland to

know that Student R had taken a shower.

In sum our conclusion is that Mr. Charland did nothing wrong by directing Student

R to take a shower. Mr. Charland:

• Never ordered Student R to wear school clothes into the shower.

• Had no way of knowing that the T-shirt Student R was wearing was R’s school

T-shirt.

• Never browbeat or threatened Student R.

We credit Mr. Charland’s statement that he did not see Student R leave through the

locker room exit. Mr. Charland could not be everywhere.

Student G, testified that Student R was wearing a gym T-shirt during the first shower. The consensus of

student testimony is that Student R did not shower properly the first time he went into the shower.

CONCLUSION

Given these facts we cannot find that Mr. Charland did anything wrong. We

therefore must also find that Mr. Charland did not lie when he described his side of the story

to school officials. It is our opinion that the school committee has failed to prove by a

preponderance of the evidence that good and just cause exists for the dismissal of Mr.

Charland.

REMEDY

Mr. Charland is to be restored to his position with back pay. Since Mr. Charland was

under a duty to mitigate his damages, any sums he earned from other work is to be deducted

from this award of back pay.

Forrest L. Avila

Hearing Officer

APPROVED:

Peter McWalters, Commissioner

DATE: August 11, 2000