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The Official Blog of the Independent Community of Educators, a caucus of the United Federation of Teachers
The New York Post has decided to become the cheerleader for Rubber Room reform and while the paper has publicized some of the more egregious cases they have left up to Mulgrew and Klein to come up with solutions. Predictably both miss essential points.
First, the record needs to be cleared.
Remember when the words "Rubber Room" were too awful to say and we were cajoled into renaming this area as the teacher reassignment center? Well, it is obviously ok for everybody to go back to calling it the rubber room because Mulgrew calls it that. In any case the Post has highlighted six claimed abuses of the rubber room system which both Klein and Mulgrew agree is a symptom of a complex, evolved system that needs to be changed.
Where does the abuse lie?
For years the DOE has removed teachers from their classrooms based solely on unsubstantiated allegations and forced students to be taught by day to day substitutes. As principals were given greater authority over hiring and firing thanks to UFT contract complicity the rubber room, predictably, became a dumping ground for teachers and other staff that principals and other administrators simply did not like. The numbers grew and the UFT stood silent.
The UFT refused to hire investigators or supplement teacher defense strategy except to assign a couple of untrained people to act as a liaison to an already overwhelmed and under-funded NYSUT attorney defense team. As a result new rubber room occupants know as little about their case and are ill-prepared for arbitration hearings as they have always been.
The DOE hasn't done much better either. Knowing that UFT attorneys will gladly delay cases there is little pressure on them to move cases along. Both Mulgrew and Klein cite the lack of arbitrators as one of the main causes of rubber room expansion but the dirty little secret allows both DOE and UFT incompetence to delay cases. DOE attorneys have no authority or discretion, unlike other agency prosecutors, to withdraw cases and are generally forced to, at least, seek some plea agreement so that principals don't have to take the removed teacher back. The pleas, for the most part, involve monetary fines, but almost always require the agreeing teacher to become an ATR. Even totally exonerated teachers are forced to become ATRs.
Who is in the rubber room?
Klein wants you believe (and Mulgrew tacitly, by his silence, agrees) that the rubber room is made of totally incompetent teachers. Nothing could be further from the truth. The vast majority of teachers in the rubber are senior teachers with misconduct allegations, with a sizeable portion of the allegations coming from outside of the school system. Administrators have known for a long time that removing allegedly incompetent teachers from the classroom via charges of incompetence was extremely difficult because it required that these administrators actually prove their incompetence. While it easy to "U" rate a lesson thankfully most arbitrators recognize that 3020-a incompetence is not just a series of bad observations.
The Klein/Mulgrew Solution
Reading their op-eds you would think the rubber room "problem" (as they term it) could be easily solved. They want to suspend the accused (they already have this power in sexual allegation and felony cases conceded to by the UFT), hire more arbitrators or make them full time and put them to work doing administrative assignments (we will finally get those lunch forms in).
Just how would these "solutions" have changed the Post's so-called dirty dozen? Almost imperceptibly. They can't be suspended because they all had their hearings…just the DOE didn't like the outcome. More arbitrators would do nothing as they had timely hearings (unless you mean more arbitrators that didn't bother to listen to the facts) and putting them to work in administrative assignments is something that is routinely done for certain removed teachers and except for DOE ineptness could have been done for the teachers cited by the Post.
It is clear both the DOE and the UFT don't really care about the disruption to students' education or due process for tenured employees. The removal process is too swift and effectively unchallengeable. As long as the DOE permits principals to remove less favored employees and as long as the UFT refuses to effectively represent them the rubber room or whatever you want to call it will remain. It's a shame and we all lose.
With the recent smearing by the New York Post of Alan Rosenfeld, a teacher assigned to the rubber room since Levy was Chancellor, the UFT has demonstrated, once again, it has abandoned any sense or responsibility of being a labor union and is content to cash our dues but afford no real protection to us.
As reported in Sunday and Monday's Post Rosenfeld was charged almost 10 years ago while teaching at IS 347 in Queens, a school which was sharing space with other schools in District 75. The allegations concerned statements that certain female students made about him that were considered lewd. Rosenfeld went through a 3020a hearing and the arbitrator threw out all of the allegations as not credible with the exception of one double hearsay statement relayed to the arbitrator in an investigator's memo.
The arbitrator found that Rosenfeld may have made the one student uncomfortable, dismissed the other allegations as not credible and refused to discipline him except for a one week suspension. Rosenfeld "served" his suspension by staying out of the rubber room for a week.
What was left out of the Post story was the fact that Rosenfeld, at the time of the allegations was supervising Teach for America teachers and had been provisionally appointed as an Assistant Principal. His promotion was blocked and it was decided, according to Klein in Monday's NY1 interview, that "he didn't belong back in the classroom."
So the story breaks in the Post and now the Chancellor and the Mayor team up to make Rosenfeld the poster child of what is wrong with the teacher termination process. The UFT remains silent.
Since Rosenfeld has been in the rubber room he has been instrumental in helping teachers in the rubber room get their jobs back and advising them how to proceed while the Union and NYSUT lawyers ignored them. Several years ago when ICE and TJC had elected members of the UFT Executive Board Rosenfeld was invited to speak to the Executive Board about teacher maltreatment by the DOE and neglect by the Union. Rosenfeld brought other rubber room teachers to address the Board and has continued to argue on behalf of them at most meetings.
You would think that a person who remains in the rubber room through no fault of their own; who regularly fights for and advises accused teachers; and is well known by Mulgrew and Howie Schorr and the UFT top brass would get some kind of help, some communication…a phone call, some defense in the media.
How does one teacher counter a concerted press, Mayor and Chancellor lynching?
Mulgrew..at least SAY SOMETHING........I guess your silence says it all.
Two issues and three cases are dealt with today. The first deals with successfully suing a student for assaulting or otherwise injuring a teacher. The second deals with an Assistant Principal who won a U rating appeal by going to Court.
Zelinda Dinardo v. City of New York. 2009 NY Slip Op 8853; 2009 N.Y. LEXIS 4144, (NY, Dec. 1, 2009)
There has been a rumor going around that teachers can no longer sue students for assault due to this Court of Appeals decision. While winning has been made more difficult there still are circumstances you can sue.
Ms. Dinardo, a special education teacher, was injured by one of her students. She claimed that she had notified the school's administration about the violent propensities of the student and received verbal assurance that something would be done about him. After she was injured she commenced a lawsuit and won a $500,000 judgment against the Board. (She also sued the child in a separate action but it is unclear what happened with that case).
The Board appealed to the Appellate Division and the State's highest court, the Court of Appeals and in a decision with a sharp dissent our State's highest court ruled that the judgment would not stand. While the Court conceded that the assurances were made they found no special duty existed between the Board and Dinardo to make the Board liable for her injuries.
While it is difficult to define the special duty must be such that the teacher can reasonably rely upon. Just what Dinardo could do in a situation that she was in is puzzling. She can't refuse to teach the potential dangerous child but should have obtained more specific assurances that the administration knew of the child's dangerous propensities and that they were doing something about it. While not the normal teacher practice several well placed memos and a proactive Union could have prevented the loss of this judgment.
No sooner was the Dinardo case reported that a school safety officer met the same fate. Maria Rollins also injured by a special education student could not recover her damages because the Appellate Division found no special duty. Maria Rollins v. Board of Education, 2009 NY Slip Op 9292; 2009 N.Y. App. Div. LEXIS 9125, (AD 1st Dept, December 15, 2009)
In the Matter of Gloria Blaize, appellant, v Joel L. Klein, etc., et al., 2009 NY Slip Op 9021; 2009 N.Y. App. Div. LEXIS 8848 (AD 2nd Dept., Dec. 1. 2009)
Gloria Blaize was U rated in 2003 by District 22 Superintendant John T. Comer. The original case sought reinstatement to her position and reversal of the U rating but by the time she started the case the 4 month statute of limitations ran on her reinstatement claim (remember the time starts to run when you are terminated or demoted not after your U rating hearing or appeal).
In any case the Appellate Division noted that her claim for the U rating was still viable and sent it back to the Supreme Court for a determination. The Supreme Court affirmed the DOE and on appeal the Appellate Division reversed.
The Appellate Division cited several irregularities which required reversal similar to Jill Budnick's case reported below. These included the fact that Blaize was not provided a complete set of documents on which the U rating determination was based within three weeks of her challenge as mandated by BOE by-law 5.3.4A. The hearing took place over two years after her challenge which also violated BOE procedures.
In a sharply worded decision, yesterday, Justice Walter Tolub of New York Supreme Court rebuked the DOE for affirming a "U" rating given by an elementary school principal to a 20 year veteran when few of the procedural safeguards were followed. Jill Budnick, represented by private counsel, decided not to accept the rating and had claimed that she was targeted by the principal due to her seniority.
Justice Tolub found that the teacher evaluations and appeals of unsatisfactory ratings must be conducted in compliance with the formal procedures set forth primarily in two handbooks prepared by the Division of Human Resources, namely, "Rating Pedagogical Staff Members" and "The Appeal Process." The Handbook requires a Rating Officer (in this case, the school principal) to complete a thorough performance review for the academic year before rating the teacher (Section 11, at 3-4).
The Handbook states that the Rating Officer should make informal and formal classroom visits in order to improve and sustain effective teaching (Ex. 4, Section 1, A, at 1). A formal observation may consist of one full-period observation or a series of short visits by the principal (Section II, E, at 7). Discussion with the teacher before and after an observation must be built into the formal observation process, along with a post-observation conference and a written report, which should include prescriptive recommendations for professional growth where appropriate.
The Rating Officer must characterize each formal observation of the employee's performance Satisfactory or Unsatisfactory and indicate why this is so (Section 1, A, at 1). In arriving at the rating for a school year, the Rating Oficer should take into account all events and incidents manifesting professional growth, pupil guidance and instruction, and classroom management (Section, II, C, at 4). A U rating has serious implications, as it is a compelling reason to file charges against a tenured teacher and may affect the teacher's ability to obtain additional licenses and salary increments (Section II, G, at 9).
Reports of observations must be included in a teacher's official file and a teacher is permitted to append a letter or note of explanation or rebuttal to documents placed in the file (Ex. 4, Section 11, I, at 9-10). This appended material is considered part of the original document and should be permanently attached thereto (Section II, I, at lo). Any material to be placed in a teacher's file must include a notation that it is being placed in the file and a space for the teacher to sign and to indicate when he or she received a copy of the material.
Justice Tolub found that the rating officer did not provide pre and post observation conferences or any meaningful way to correct Budnick's alleged deficiencies. Additionally the Court noted that documents appended to the file letters were not included in the record on appeal and the appeals officer refused to mark into the record supportive letters from colleagues and other teachers.
The irregularities, according to the Court required that the U rating be vacated, an S rating be substituted and the DOE ordered to make the changes.