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City Agrees to Shut the 'Rubber Rooms'

Friday, April 16, 2010

The city’s infamous rubber rooms will close by the end of December. Suspended teachers accused of incompetence or misconduct will no longer report for duty to these reassignment centers, where they collect pay and do nothing. Instead they’ll work in Department of Education offices while waiting for their cases to be resolved. The city has also agreed to expedite the lengthy hearing process.

It takes 18 months on average for suspended teachers to get out of a rubber room. That’s partly because they can wait for months before charges are even brought against them. And it takes a long time to go through the hearing process. The city’s new agreement with the teachers' union is intended to speed things along says Chancellor Joel Klein.

“The whole theory is, let’s get it done,” he said at a press conference with the mayor and the United Federation of Teachers president. “Those who don’t belong in the system should be removed. Those who belong back in the classroom should get back in the classroom. It doesn’t help to wait three to four years to go through a process and then return somebody to the classroom.”

Under a new timeline, the city will have 10 days to bring charges against a teacher accused of incompetence. And it gets 60 days to charge a teacher with misconduct, because that’s much more serious. If no charges are brought, the teacher goes back to the classroom. But the investigation can still continue. Teachers accused of serious felonies like sex abuse can still be taken off the payroll.

The city and the union also agreed to address the hearing process when a teacher is charged. The system moves slowly because there are only 23 arbitrators hearing these cases. The city will expand that number to 39 starting in September. And the arbitrators will be asked to work faster, holding 10 hearings within a 60 day period. United Federation of Teachers President Michael Mulgrew says they often take longer. And that’s what keeps teachers in rubber rooms.

“It’s the hearing process itself,” he explains. “We have to hold to 10 days, 10 to 14 days, over a 60 day period. That’s what’s going to make the difference. That plus the investigation period. And that’s what we’re trying to do. And once the whole system starts working that way, then it’s sensible, common sense, you have due process for people but at the same time you have something that’s fast and fair for the system.”

The city and the union have tried before to address the problem by adding a few more arbitrators in 2006. But both sides accused the other of dragging things out.

It’s easy to see how one might come to that conclusion when observing the hearing process up close.

On the sixth floor of a city building on Chambers Street, attorney Nicholas Penkovsky is on his way to defend a city teacher who’s been suspended over allegations of incompetence. He’s armed with a rolling luggage cart filled with paperwork.

“One of the interesting things they did was they turned over 800 individual documents,” he says.

That’s right -- 800 documents provided by the Department of Education, including many duplicates. All to remove one teacher.

“His personnel file, lesson plans, observation reports,” says Penkovsky, listing them. “His licenses, his marriage license, his medical forms, anything they can find they turned over.”

Penkovsky, and the documents, are on their way to a hearing. We’re in the former Emigrant Savings Bank building. Here on the sixth floor, a labyrinth of corridors is reserved for Department of Education grievances. Arbitrators sit in tiny gray rooms listening to allegations involving teachers with too many absences, and teachers fighting the city’s effort to terminate them.

“Hi, we’re here for Ebewo,” says Penkovsky, greeting a receptionist.

Penkovsky’s client is Dr. Michael Ebewo. He’s a special-education teacher who worked in the New York City schools for almost 20 years. In 2008, the principal of a Manhattan middle school accused him of incompetence. He’s been in a rubber room ever since, in a compound of trailers in Washington Heights. Ebewo believes he’s innocent.


Dr. Michael Ebewo is a special-education teacher who was suspended by his principal for incompetence in 2008 and has been fighting the allegations. He’s now going through the hearing process with his attorney.

“I like teaching and I’m a good teacher,” he says. “I trained myself to teach and I don’t think I need to be forced to leave the job that I love so much.”

It took more than a year for Ebewo’s case to get this far -– and that’s what the city intends to fix. This is his eighth hearing since December. During the session, a former supervisor is called as a witness to describe how Ebewo didn’t engage all his students during a math class. Ebewo’s lawyer, Nicholas Penkovsky, then grills her about the math curriculum. It feels like a court case, which is also what the city wants to expedite. The arbitrator, who would not allow WNYC to record the session, sat at the head of a long table and fielded objections from the city’s attorney and from Penkovsky.

Ebewo’s case will probably get resolved shortly. But he’s also among seven teachers who have tried to sue the city over the rubber rooms. One of his fellow plaintiffs, Julianne Polito, claims the city violated their civil rights by placing teachers in rubber rooms for so long. She’s been in the Washington Heights location since the fall and has yet to be charged.

“That’s harassment,” she says. “That’s retaliation, that’s a violation of due process rights.”

Polito and the others claim they’ve been falsely accused of incompetence and misconduct partly because they’re veteran teachers at the top of their pay grade, and for speaking out against administrators. Polito is 56. She teaches at a Harlem middle school where she’s been accused of corporal punishment for three years in a row. Each time she was sent to a rubber room, only to be returned to her school months later when the city declined to remove her.

“Anyone who ever has ever been investigated for anything, you build on that and you continue with that theory. So over and over again I’ve gotten letters about corporal punishment,” she explains. When asked if she’s ever touched a student she says, “Once when boy punched me in face, I moved his arm away from my face.”

Under the new agreement, teachers like Polito would be returned to their schools much faster if a case can’t be made.

It’s not clear if Polito and the other teachers have a case against the city –- especially now that the rubber rooms will be closed. They have tried twice before to bring a lawsuit, but they were denied by a judge who sided with the city’s motion to dismiss. He even made the teachers pay $11,000 in fines. But this month another judge said they could try a third time.

If their case goes nowhere, one thing is certain: The city says their hearings should start moving faster, and they’ll be out of the rubber rooms by the end of the year.

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