Thursday, April 8, 2010

The Rubber Room Battle Continues!

In Support of Closing NYC ‘Rubber Rooms’
By Attorney Dr. Joy Hochstadt

     On behalf of themselves and similarly situated tenured educators employed or formerly employed by the New York City Department of Education (“DOE”), and brought up on Disciplinary Charges since the abolishment of the Board of Education , Plaintiffs are bringing a class action lawsuit against the New York City Department of Education for violation of their Fourteenth Amendment rights to equal protection of the laws and to due process as well as their First Amendment right to speak out on important issues of public concern.

         Since 2002, the Mayor of New York City has had executive control over its school system, granted to him by enabling legislation enacted by the New York State legislature.  The Board of Education was dissolved and the operations of the City School District for the City of New York was assumed by a Department of Education.  Some of the previous functions of the Board of Education were transferred to 13-member Panel on Educational Policy appointed by the Mayor.

         The functions transferred are those embodied in New York State Education Law §2590-g. Education Law §2590-g, however, has no provision for the review and scrutiny of whether there is Probable Cause to proceed with the prosecution of Disciplinary Charges against tenured educational personnel.

          Without this due process protection of a vote on “probable cause,” by a school board independent of school administration there has been a many fold increase in the number of NYC teachers brought up on disciplinary charges.  The increase has largely reflected frivolous, exaggerated, and just plain erroneous charges by principals now needing nothing more than their supervisors’ signature to be rid of teachers they want out of their schools. 

         Since the abolishment of the NYC Board of Education in 2002 to the present time, between 1000 and 2000 tenured educators employed by the DOE were brought up on disciplinary charges without benefit of a vote of the Board of the City School District as required by the provisions of NYS Education Law 3020-a.

         Public school teachers and former public school teachers are seeking declaratory and injunctive relief, arising from the Department of Education’s intentional actions which have been to used to deny contractual and statutory rights to which all other New York State Teachers are accorded and for which New York City teachers were accorded prior to the advent of Mayoral control of the New York City Schools.     

         Public school teachers and other educational personnel employed by, or formerly employed by Defendant DOE are being brought up on disciplinary charges that are pre-textual, orchestrated, and in some cases perjured and fabricated no longer have a choice of arbitrator as all other educators in NYS outside of NYC still do; they no longer have the right to a three arbitrator panel when incompetence or pedagogical judgment is at issue. 

         NYC teachers a waiting hearings on disciplinary charges are removed from their schools and sent to Teacher Reassignment Centers (“TRC”), to await the commencement of the New York State Educational Law §3020-a (“3020-a”) process, typically a one to three year wait for the trial to even begin.  Nowhere else in the State are certified tenured educators warehoused, given no work, prohibited from doing other work or using electronic devices of any type and guarded by uniformed security personnel who must monitor their movement even to the lavatory.  Often their only administrative contact is with clerical level staff who treat them as “pariahs.”  Both the TRC’s (better known as “Rubber Rooms”) and the way the Collective Bargaining Agreement (“CBA”) with the United Federation of Teachers (“UFT”) supersedes the original statutory provisions of 3020 and 3020-a are unique to NYC.  Elsewhere in NYS an educator remains in place until the hearings begin (or, in certain instances, is asked to remain at home if the allegations suggest contact with students is contraindicated).  The educator outside NYC has a choice between the provisions of the 3020-a statute as enacted, or the local CBA; not so in NYC where the 3020-a was amended so the NYC educators have no option but the CBA.  The Class Action asks the Court to strike down this section of 3020-a as being unconstitutional in denying NYC educators equal protection of the law compared to similarly situated educators in the rest of NYS.

       Education Law 3020-a, under which tenured personnel may be disciplined for “Just Cause” requires that ‘before’ charges can be brought against a tenured educator, the School Board must: determine that there is “probable cause” for the proceeding with charges by a majority vote.  The Board then makes a determination within 5 days of the Charges being filed with the Board.  At that time they ensure that the decision to proceed with the charges is not frivolous, arbitrary, capricious or discriminatory.  This step is bypassed for NYC educators, another constitutional violation of equal protection which the Class Action seeks to have reinstated and enforced.

     However, without a School Board to perform this function, and without the duty to perform this independent review assigned to the Panel on Educational Policy, there is no oversight by anyone other than the tenured educator’s Principal to initiate the disciplinary process and Local Superintendent to endorse it.

     This pre-emption of due process review of Disciplinary Charges mandated by 3020-a, has been occurring since the Mayoral control of the NYC Schools began. Related to the failure of a School Board used to review has been a three to fourfold increase of 3020-a charges brought against NYC teachers compared to a lack of increase in the rate of similar charges being brought against tenured educators elsewhere in the State.

     These differential rates, of filing of disciplinary charges indicate de facto denial of equal protection of the 3020-a law when the additional due process safeguard was removed.  Further, the teachers brought up on disciplinary charges, since the advent of Mayoral control as a group, earn salaries that are on the average at least $20,000.00 higher and they are also disproportionately African-American, Latino, and over the age of 50.

       Without oversight of an independent Board, the charges preferred are more often than not, frivolous, arbitrary, capricious, and frequently an attempt to silence criticism by senior teachers and other educational personnel that observe new Principals undertaking inappropriate means to make it appear that students are progressing more successfully than is actually occurring in order to protect their own jobs since Principals and other Supervisors (e.g. Assistant Principals) traded their tenure for considerable incentive pay based on student performance in or around 2006.  Charges are also more often than not preferred against the highest paid teachers, since actual teacher salaries have been charged to school budgets since the advent of Mayoral control of the NYC schools.

     New York City students are thus, being deprived of some of the best educated and experienced teachers under the guise of purging the system of what the Chancellor has been told is “deadwood,” but in actuality is; any teacher or administrator who is perceived by the school Principal as a challenge to that Principal’s practices.
Consequently, NYC students have lost some of their most acclaimed teachers in Math, the Sciences, Film, Arts, and other subjects.

     The first Medical Illustration program in the nation was dismantled when its founder and beloved teacher, Plaintiff David Pakter was removed from his school in retaliation for his whistle-blowing on a new Principal’s policies.  The minority students who were prepared each year for the best colleges via this program lost an important vehicle to upward achievement and mobility.

     Teachers with established relationships with students assisted them with the development of their lives and careers but have been removed from the classroom and replaced with younger less experienced teachers by the Department of Education to save money and gain submissiveness.  The students of said teachers removed without probable cause suffer and the fine educational programs developed by those teachers are discontinued.

     Instructional initiatives that take years to develop is abandoned when an experienced teacher is replaced with first a year recruit.  Such replacement of tenured teachers to save money is not only detrimental to the instruction of NYC students but is against the law and it is a deprivation of the contractual, statutory and constitutional rights of Educators.

     Education Laws §§ 2590-j, 3020-a and 3020 were amended to treat New York City different from the rest of the state but these changes deny due process and equal protection to New York City tenured educators which they previously enjoyed and which remain the rights of tenured educators in all other parts of New York State.

Changes to NYC Teachers contract includes but is not limited to:

1.     The loss of the right to select procedures for the 3020-a hearing.
Only in NYC are  tenured educators, denied the provisions of the very statute under     
which their due process rights are protected  and have no option other than that  
offered by the UFT Collective  Bargaining Agreement.
2.     Only in New York City do tenured educators have no say in the selection of an arbitrator for their proceeding;
Instead Educators are assigned an arbitrator from a panel whose members are  
selected or retained by a process that may be influenced by factors other than to
obtain the fairest and most sympathetic arbitrators for the union members facing  
the charges.              
3.     Only in NYC are tenured educators brought up on charges for incompetence denied a three member arbitration panel.
Teachers are now being denied the statutory provision of the right to a three member panel for their arbitration, even if they request it as soon as they are served the charges and their case includes issues of incompetence or pedagogical judgment..
4.    Only in NYC, are arbitrators put on a permanent panel and paid up to $2000/day
In contrast to the statutory provision that states that only ad hoc individually selected arbitrators may be paid at the American Arbitration Association rate.   This arrangement tends to induce the arbitrators’ dependency on the steady permanent payment arrangement favoring the employer whom they perceive as the more powerful force in influencing their own job retention in the arbitrator role.
5.     Only in NYC are tenured educators removed from their teaching assignments and made to endure long waits in “reassignment centers” until they have a hearing.  Elsewhere in the state tenured educators who face allegations that are not deemed dangerous to students await their proceedings in place or if accused of conduct that could harm students await their proceedings at home.
6.    Only in NYC must tenured educators, await their hearings on the 3020-a charges in reassignment centers
These so called “Rubber Rooms” are tantamount to constructive termination and are intentionally operated in a manner designed to induce constructive termination before the 3020-a hearing has ever begun. The Ruuber Rooms are intentionally “hostile work environments” that deny educators basic civil rights.
7.     Elsewhere in the state when the tenured educator has completed the 3020-a process, they are returned to regular duty after a suspension or a fine or a letter of reprimand is imposed as a penalty.
Only in NYC are the almost negligible few tenured educators who are totally exonerated of any and all charges returned to their regular assignment.
8.    In NYC, all tenured educators who have undergone a 3020-a process, and have been fined, suspended, or even nominally or reprimanded, are forever, thereafter, relegated to perform day-to-day substitute assignments.
And thereafter looked down upon as “Pharisees” or bought up on more charges and sent back to the Rubber Room to face another 3020-a hearing, when the first proceeding has failed to accomplish the goal of terminating them entirely from the system.
9.     Only in NYC are tenured educators, awaiting 3020-a hearings reassigned to “holding pens” where uniformed guards monitor their movements.
There they must agree in writing not to use electronic devices of any kind; they have no assigned duties, but are not permitted to perform other work.

10.   These practices are in violation of Chancellor’s Regulation C-770.
Regulation C-770 specifies that tenured educators must be reassigned in their own community school district (which since the abolishment of those too they have not—the community schools districts have been reinstated to an extent but the “reassigned” teachers are still being sent to huge confinement facilities holding as many as 300 teachers at one place). Regulation C-770 also provides that “reassigned educators” must be assigned meaningful, appropriate professional work, and must be treated in a dignified, professional and respectful manner (the opposite of each of these are true).

     On June 27, 2008, the DOE and the UFT entered into an agreement which vowed to end many of the most egregious practices, herein complained of.  Agreement was executed by Defendant Klein and Randi Weingarten, then President of the United of Federation Teachers’ Union.  That agreement has not been complied with by the DOE or the Defendants. 

Instead, NYC educators have been, and continue to be herded into over-crowded spaces which confine as many as 300 tenured educators, in a single space (25 Chapel Street, Brooklyn, New York) or in detention camp environments, that are comprised of trailers within chain link cages, prison-styled and supervised by a uniformed employee referred to as a “warden.” (W. 193rd Street and Audubon Avenue, New York, New York).

         The rubber rooms are a totally pre-adjudication detention center.  To further harass reassigned educators, they are supervised by unskilled, clerical level staff subordinate to Defendant Rivera, who with Defendant Rivera and the Principals who sent them to the rubber rooms, make post hoc rules, change the rules after the fact and intentionally conduct themselves in a manner most likely to induce Plaintiffs to suffer humiliation, defamation and to retire earlier than they would otherwise elect to retire.

   The conditions can be horrific; the overcrowding and the poor air circulation in the windowless space that was the 333 7th Avenue rubber room, with several Public Employees Safety and Health (“PESH”) violations having caused serious respiratory disease in at least 25% of the “reassigned” tenured educators, and having caused the death of one educator, Gilda Teel, whose bronchial pneumonia was not only directly due to the poor air quality in that rubber room, but was exacerbated by clinical depression caused by the false and unjust, but nevertheless trivial single accusation against her, for which the DOE sought her termination.

Among the questions of law and fact common to Teachers and Educational Personnel is:
 (1) Did the by-passing of Board of Education review for probable cause and vote as to whether the 3020-a charges should be brought, prior to their being brought against tenured educators, is in violation of NY Educ. L. 3020-a constitute denial of due process?

(2) Does the treatment of NYC tenured educators having fewer options, under the 3020-a, and 3020 laws than tenured educators throughout the rest of NYS, constitute denial of equal protection under the law to NYC educators.

(3) Does the often several year confinement to Rubber Rooms for 7 hours per day for up to 196 days per year for pedagogues and longer for administrative titles, under the terms and conditions
incumbent in and enforced in said Rubber Rooms, which is always pre-adjudication of any guilt being found on any charges, constitute a denial of due process rights.

(4) Does the violation of Chancellor’s Regulation C-770 which requires any disciplinary reassignment must be within the Community School District, and that appropriate professional work be assigned, constitute contractual and due process violations.  
(5)    Should Rubber Rooms be shut down as a result of being intentionally operated in a manner inducive of constructive termination, having violated?

 (6)Are Teachers and other Educational Personnel due process and state guaranteed tenure rights being violated?

(7) Have the civil rights of NYC educators been impermissibly injured by the New York City Department of Education? If yes, then should NYC Teachers and other Educational Personnel subject to charges since disbanding of the NYC Board of Education, as a minimum, be entitled to have any adverse ruling made against them, expunged in order that they may secure other education opportunities and not be collaterally estopped when they make their individual claims.  

(8) And lastly, whether as a result of those violations Teachers and Educational Personnel who have not already made claims for damages in their own prior Individual Actions be entitled to damages in this Class Action and should not all NYC educators be prospectively entitled to injunctive relief so that these egregious practices end?

For more information contact Dr. Joy Hochstadt
 Jennifer Saunders @

EDNY Class Action



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