MANCHESTER — The Supreme Judicial Court of Massachusetts has heard oral arguments for and against a challenge to the 2005 dismissal of a former Manchester Essex Regional High School teacher and coach, who asserts his ouster was unconstitutionally upheld.
Thomas Atwater, 52, had taught at Manchester Essex Regional High School for over 20 years and had coached the girls' varsity basketball since 1991 when he was dismissed in March 2005 for inappropriately touching a student.
The court's written opinions are due to be released within the next 130 days.
The case centers on the night of Feb. 23, 2005, when Atwater — both sides agree — invited one of his basketball players, then 17 years old, over to his house for dinner and to review a tape of one of the team's recent games.
According to court documents, the two were alone together around 11:45 p.m. And while the student sat on his couch, Atwater began to massage her back under her shirt and soon slipped one of his hands down the back of her pants.
The girl jumped up and said she had to go, when Atwater hugged her in what she claimed was an attempt to prevent her from leaving, court papers indicate. But the girl broke away, ran out the door, and drove home.
Over the next few days, reports indicate, Atwater sent the student several emails, apologizing, confessing his error, and calling himself "stupid" and "a jerk."
The victim and her parents reported the event to the Manchester Police and the School District on Feb. 25, 2005.
Atwater soon signed affidavits confirming that he had made "an unwanted sexual advance" on the student and had touched her with "intent to fondle her."
Atwater, however, has since retracted these statements and claims that the student's attorney, Joseph Orlando, coerced him into signing them. He now claims minimal inappropriate touching and says his hand slipped by accident.
In January 2010, following a private arbitration process as directed by state law, the Essex County Superior Court at Salem upheld Atwater's dismissal and awarded the victim $5,000 in damages.
In appealing that decision, Atwater asks that his dismissal be reversed because the mandated arbitration process contradicts the Massachusetts Constitution, though this request is largely buried in the technicalities of the appeal.
Atwater's attorney, Garrick Cole, claims that the statute requiring arbitration with limited judicial review — rather than a trial before a judge — for disputes over the dismissal of a public school teacher is an unconstitutional delegation of judicial authority to a private individual, and away from the courts without sufficient supervision.
"(An arbitrator's) decisions can be as wrong as the day is long," Cole told the Supreme Judicial Court, "and it doesn't matter."
Cole argued Wednesday that Atwater's dismissal was "unlawful" because the arbitrator made the decision and the court appeared to assume she was right to do so, thus giving up its judicial powers to a private individual.
Cole also alleged that state Commissioner of Education Mitchell D. Chester, who referred Atwater and the Manchester Essex Regional School District to the arbitrator, did not ensure that the arbitration was properly performed and did not ask the arbitrator to withdraw once Atwater had asked her to, as her contract allegedly said she should. The facts of her contract, however, are in dispute.
Following Cole's argument, Assistant Attorney General Amy Spector insisted Wednesday that the statute is not unconstitutional, and that the arbitration process does not remove the final decision from the court.
Furthermore, she said, the commissioner of education had no role in the arbitration process, other than to recommend several professional arbitrators to choose from.
Geoffrey Bok, attorney for the Manchester Essex Regional School District, noted that the case was essentially moot.
"Based on admissions of Mr. Atwater," Bok said, referring to the signed affidavits, "(nobody) could reinstate this fellow."
Bok said that teachers are "held to a much higher standard" than others. Having the student at his house late at night and alone might not, in itself, be considered conduct unbecoming a teacher, he said, but "hand on butt is."
The Massachusetts Teachers Association and the Massachusetts Association of School Committees, meanwhile, each filed amicus briefs in favor of the arbitration statute, claiming it has served the state and its schools well for 17 years.
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