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Hearing officer: District’s suspension of Nuestro Mundo social worker had ‘chilling effect’ on black excellence work, should be overturned

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SANDRA RIVERA (copy)

Nuestro Mundo social worker Sandra Rivera talks about receiving a disciplinary suspension in March for using the N word during a leadership team meeting. Rivera says she was repeating what a student said to demonstrate that staff need to be prepared to respond to students' use of slurs.

An independent hearing officer found the Madison Metropolitan School District’s expectations on the use of racial slurs “were not clearly established or communicated” before a Nuestro Mundo social worker received a suspension for using the N word last year.

The officer recommended in a decision last month that the district rescind the disciplinary suspension of Sandra Rivera, who shared her story publicly in October following the controversial firing and eventual reinstatement of West High School security assistant Marlon Anderson.

In his Dec. 17, 2019, decision, hearing officer Dennis McGilligan writes that Rivera’s use of the word during a staff meeting on racial equity work “cannot be reasonably construed as normalizing the word and perpetuating its harm,” that the district’s communications on the use of racial slurs were unclear, and that her suspension had “a chilling effect on other staff’s commitment to work on black excellence.”

The Anderson case in October brought international attention to the district’s “zero tolerance” practice for the use of racial slurs, for which at least seven staff members were disciplined during the 2018-19 school year. Shortly after he was fired, Anderson claimed publicly a student called him a “b**** a** n****” to which the security assistant replied, “don’t call me a n****.”

People rallied against the discipline, including a student and staff walkout, and the district reinstated him without going through the grievance process. Though there is no board-approved policy regarding the use of racial slurs, the district has maintained it communicated the blanket ban on the N word to staff during last school year.

At the end of the week in which Anderson was reinstated, Rivera became the second MMSD employee to publicly share her story, explaining that she had used the N word during a March Site Based Leadership Team (SBLT) meeting to encourage colleagues to discuss how they should respond when students use the word toward each other.

“I shared a recent example that I had witnessed,” Rivera said at an October press conference. “In wanting to be clear, I quoted the student and said the N word out loud and in its entirety. I did not direct the word at anyone.”

McGilligan found “application of the ban on the use of the N word here is counter to its purpose” toward anti-racism and equity.

“The severe discipline dealt to (Rivera) has dramatically undermined MMSD's anti-racism efforts at Nuestro Mundo,” the hearing officer writes. “The record is replete with persuasive evidence (Rivera) is strongly committed to black excellence, anti-racism efforts and was a leader in that area on the SBLT. Yet the SBLT lost one of its leaders when (Rivera) voluntarily resigned from the SBLT from shame potentially reducing the school's capacity to advance this important work which the District considers a core value of its mission.”

The hearing officer was reviewing the case as part of the grievance process for staff to appeal discipline. It's the third step in the grievance process outlined in the employee handbook.

McGilligan notes confusion among staff about the district’s ban on the word, with many believing it was only expressly prohibited in the presence of or directed at students. Following the outcry over Anderson’s firing, district leadership and School Board members promised to have conversations about the practice.

Madison Teachers Inc. executive director Doug Keillor said in a press release MTI hopes the district will “continue to move away from its zero-tolerance practice to one that involves a more restorative approach.”

“MTI and its members are committed to work with the District and community in this difficult but critical work,” Keillor said. “We hope that this decision will be a step toward making this a reality.”

District spokesman Tim LeMonds wrote in an email the district cannot comment on personnel matters, but "the next step for the recommendation is for it to be reviewed by the District Board of Education where they will then render a final decision."

‘Flustered and confused’

According to the decision, after Rivera used the word during the Site Based Leadership Team meeting, other staff responded that she should not have used the word, and principal Josh Forehand said it should not be used in any setting.

“(Rivera) felt flustered and confused,” it states. “She apologized but she also noted that it was important for staff to talk about racial issues.”

Staff would later that day discuss their experiences when the word was used in front of them and “expressed confusion about who could use the word and who could not use the word,” according to the decision. The SBLT group also sent a letter of support for Rivera to administrators, suggesting she receive a warning but not disciplinary action.

“Disciplinary action will impact staff willingness to engage in conversations around race,” the letter states. “We are trying to create a culture where conversations can happen more often, where people can share openly, where we take risks with one another to talk about difficult, sensitive topics. This experience has taught us that we need professional learning around how to have these conversations.”

Thirty staff members later signed a letter supporting “restorative” actions rather than discipline, and principal Forehand “did not support a disciplinary suspension,” either, according to the decision. In his letter administering the district’s decision to suspend her, Forehand wrote that “the ‘N’ word is never to be stated to anyone, for any reason.”

Rivera did not receive any unpaid time off for the suspension, but the letter warned that “if you engage in similar conduct in the future, your employment with the district will be terminated.” Disciplinary suspension is the most serious punishment that can be given short of termination.

District says communications were clear

The decision notes the district had sent two emails to all staff during the school year regarding the use of the N word and other racial slurs, one in November and one in February. Forehand had also addressed the issue in a school letter to staff.

The first two communications specifically reference using a slur in front of or directed at a student, while the February communication states, “No matter the context or circumstance, the use of racial slurs or hate language aimed at a person’s protected class status is unacceptable in MMSD.”

During a disciplinary meeting to share her version of what happened, she reportedly “explained that she did not understand that you could not use the N word in any context.”

In its argument in the hearing summarized in the decision, the district “argues a hearing examiner should not second guess every disciplinary action taken by an employer,” and calls not using the N word in a professional setting “common sense.”

“The District submits using this word in the presence of others normalizes a word that carries and causes deep emotional wounds to those who have this ancestry and identity,” the decision states. “The District notes (Rivera) herself has acknowledged the word is inappropriate and harmful but then states she didn't know she could never say it. The District believes such a contention defies common sense.”

While the district contends its communication on the the use of racial slurs was clear, the hearing officer found confusion among staff, determining “common sense does not dictate that use of the N word in a professional setting is always unacceptable.”

“(Rivera) and many staff at Nuestro Mundo shared the common sense opinion that the N word should never be used as a racial slur directed at a student or anyone else but did not share the District's common sense understanding that it could never be used in any setting,” the decision states.

While the district contended any confusion over the policy was Rivera’s fault, the hearing officer noted that the district’s second email did not specify circumstances regarding the use of the word, leaving the district’s position open to interpretation.

“The record is clear that (Rivera) and others were largely left to their own devices to discern the District's expectations based on unclear communications, newspaper stories and school word of mouth,” the hearing officer wrote. “As such, it is unfair to blame (Rivera) for any confusion created. The problem originated with the District.”

McGilligan also cites the district’s “Zero Tolerance for Workplace Violence” policy, which includes two pages of narrative as its purpose, to undermine the district’s argument that its communication to never use the N word did not require further context or guidance.

“The District offers no good reason for failing to provide the same type of narrative and explanation as to the District's expectations regarding zero tolerance for use of racial slurs and inappropriate racial language especially as the District has done this in other zero tolerance situations,” the hearing officer wrote. “Based on same, the District's explanation that it is not necessary because ‘no means no’ is not satisfactory.”

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Scott Girard is the local k-12 education reporter at the Cap Times. A Madison native, he joined the paper in 2019 after working for six years for Unified Newspaper Group. Follow him on Twitter @sgirard9.