STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY
RACINE EDUCATIONAL ASSISTANTS
WISCONSIN EMPLOYMENT RELATIONS
COMMISSION, RACINE UNIFIED SCHOOL
DISTRICT and BOARD OF EDUCATION OF THE
RACINE UNIFIED SCHOOL DISTRICT,
Case No. 99-CV-1060
[Decision No. 29254-B]
[NOTE: This document was re- keyed by WERC. Original pagination has been
Racine Educational Assistants Association seeks a judicial review, pursuant to
227 Stats., of a decision by the Wisconsin Employment Relations Commission as relates to
incident and facts occurring on 3 February 1997.
The Petitioners submit that the Educational Assistant assigned to help high
students that were diagnosed as cognitively disabled severe was ordered to commit
an illegal act
when the Educational Assistant was ordered to provide opposite-gender bathrooming
The Educational Assistant was a female, with a long history of experience and
student was a 16-year old male.
The incident occurred during a contract hiatus. The
Petitioner submits that the District failed to maintain the status quo as to conditions of
thus violating the situation under the contract hiatus; the Petitioner submits that the situation
been the subject after bargaining point and therefore was a unilateral alteration of the
employment enjoyed by the Educational Assistant.
The facts of the case are not in dispute. The female Educational Assistant was
required to assist a male student in a bathroom/toilet function; the student was "CDS".
The Commission found that the Educational Assistant, in bidding for the job,
aware of the specific "duties and responsibilities" of the job; to-wit: the job required the
Educational Assistant to bathroom students (clean body fluids and waste); and the job posting
was not gender specific as related to such bathroom duties.
The Commission found, and it is not disputed, that the majority of the
assistants for the District were female; and prior to the incident female special education
and female educational assistants had provided bathroom assistance to the exceptionally
educational need students, including the cognitively disabled severe students. The
note that the ratio of male to female educational assistants required female assistants to attend
male students, however male educational assistants had not attended female students.
The Commission also found that the District had hired and provided
supervisors to supervise bathroom and shower rooms for non-special education students but
provided gender-specific supervisors as related to the exceptionally educational need
student including the cognitively disabled severe.
While this case involved a situation that would normally cause a person to
gender-specific supervision, the contract and the history of the District with regard to such
educational assistants and their duties do not support their position for the purpose of a
review of the Department's decision. The cases submitted by the Petitioner are not
with regard to a constitutional issue as to gender-specific supervision nor controlling with
to the Department arriving at a conclusion contrary to the facts and law. The Department's
decision is appropriate underneath the terms of the contract and the bidding process for the
and the District's policies and prior procedures are in conformity with the order given to the
Educational Assistant on the day of the event.
The Court concludes that the District did not unilaterally change its policies or
practices for the event that is the subject of the action; nor was the action by the District a
unilateral action contrary to the contract terms and conditions existing on the day of the
The Court, even if the Court disagreed with the decision of the Commission,
to affirm the Commission's decision.
The Petitioner's reply brief submitting that the District was driven by a cost
incentive and it was the disabled students' rights that must be observed or reviewed is
inappropriate in this proceeding.
The Court concludes that the actions of the District, as found by the
were appropriate and the Commission's decision is supported by adequate facts and
which are reasonable and appropriate upon the facts. The application and petition of the
Educational Assistants Association is dismissed. The attorney for the Respondent shall
order to this Court within 15 days of the date this decision is rendered for signature and
Dated this 4th day of August, 2000.
BY THE COURT:
Hon. Allan B. Torhorst, Circuit Judge