Tag Archives: 3020a Process

A Very Close Look At Tenure

South Bronx School posted the first twelve of what promises to be many hundreds of pages of transcripts from Christine Rubino’s 3020a hearing. This is the supposedly fair hearing process through which teachers in New York City accused of wrongdoing have to go to determine whether or not they get terminated.

This is tenure in action. Anyone who still clings to the fallacy that tenure means a job for life should read these transcripts. By the way, the “tenured” Christine Rubino was terminated in this hearing.

It has been some months since I have read a book. Yet, in that time, I have read a few 3020a transcripts from different teachers and I am always enthralled by what goes on in those secretive little rooms on Chambers Street. This is the type of reading material that can be made into a great and sad movie, like a Greek tragedy or, more appropriately, a farce.

From a distance, the 3020a process resembles a legal proceeding. There is a judge, known as an arbitrator. There are lawyers: a defense attorney (appointed by the union by default) for the teacher and a lawyer for the Department of Education (the one who tries to terminate the teacher).  There is a stenographer keeping records. There are supposedly neat protocols and procedures determined by state labor law.

These protocols, again, resemble a court of law. There is a pre-hearing where the lawyers exchange evidence, the most important of which is a list of witnesses. This process is called “discovery” in a regular court of law (correct me if my legalese is off here). Then, witnesses are examined and cross-examined by the lawyers. Attorneys can object and have those objections sustained or overruled by the arbitrator.

Upon closer look, however, the fancy sheen of these hearings hides a rotten core. We can see this rotten core in the transcripts of the Rubino case.

As is mentioned in the transcripts, Christine rid herself of her union-appointed lawyer during the pre-hearing. This is understandable. Teachers who have gone through this process raise concerns that the union lawyer is not really on their side. For example, union lawyers always advise teachers to close off the hearing to the public. This allows them to work clandestine deals with the arbitrator and DOE without input from the teacher. These deals routinely end up with the teacher getting either the pink slip or forced resignation. It seems that the union lawyers have an interest in shepherding as many veteran teachers out of the system as possible. In many cases, the lawyers advise the teacher to resign even before the hearing begins. The same thing can be said for union leaders at both the school and district level who, as I have seen on many occasions, advise teachers facing 3020a charges to merely lie down and die by allowing the DOE to take their careers from them. Therefore, even before the pre-hearing begins, the union, the supposed defender of the teachers, beats it into the teachers’ heads that there is no hope.

How hard, then, do you expect the union to fight in a teacher’s favor? Campbell Brown says the United Federation of Teachers goes to bat for sexual predators. In reality, they do not go to bat for anyone.

So, after being subject to the union’s defeatist attitude for months, Christine fired her union attorney. She saw him in (in)action during the pre-hearing and knew she was toast if he continued to represent her. She signed off on his release, at which point he gave her all of the pertinent documents given to him by the DOE during discovery. This was late in the day of February 16, 2011. The hearing was scheduled to start the morning of February 17, 2011. Christine had mere hours to scrounge up the money to find a new, non-union lawyer. She also had to get home to feed, bathe and tuck in her two young children who she raises by herself.

Needless to say, when the next day rolled around, she was short a lawyer. She knew that she was going to retain Bryan Glass as her attorney, but did not have the time to get him the $5,000 he charges for his services. She had the money, which she had to scrap together throughout the course of the previous evening, but not the time to get it to him. All she needed was an extra day, an extra few hours even, to get him the money and have him come to Chambers Street.

Therefore, the entire first day of Christine’s hearing (the day covered by the transcript at the South Bronx School website) revolves around the DOE lawyer maneuvering to start the proceedings without Christine’s lawyer. He had a lot of help in this from the arbitrator and our old friend, Randi Lowitt.  Christine was faced with the prospect of being her own lawyer that day. She at least wanted an hour to go over the humungous stack of files given to her the day before so that she could know who the DOE was going to call as witnesses that day. As she said:

… I had just gotten the packet. So I would like to read it. I really haven’t been given much time. Once I left Mr. Glass, I went home to my two children and was enthralled in homework and bath and bedtime. So I could not read that. I would like to have some time to read this and go through the documents. I need a good hour or two. And Mr. Glass will get his money by the end of today or tomorrow, so that he can take on the case. So, right now, I have no counsel.

And our good friend Randi Lowitt responds later:

The case, as I told Mr. Glass on the phone last night, and I know he wasn’t representing you, and as Mr. Kelly (the union lawyer) told you yesterday during the course of the prehearing conference, the case is properly scheduled. The timing is properly met. Nothing has been improperly done, relative to the scheduling of this case. And that is why today’s hearing has not yet and will not be adjourned. It is a properly timed, properly commenced action. And it will proceed today. You will be able to participate in it, to the extent that you wish. The Department has the obligation to bring the case forward. So, unless I’m speaking out of turn, Mr. Gamils (the DOE lawyer), he’ll make an opening statement. I assume he has a witness or two here for us to hear. He’ll question them. You’ll have the opportunity to cross-examine them. And that’s the way the case proceeds. And the next hearing date is February 28th. So there is plenty of time, between now and then, if you chose to retain counsel…

Therefore, because the case is “properly scheduled”, it does not matter if Christine has a lawyer or not. Christine can cross-examine the DOE’s first witness, which happened to be Christine’s principal, on her own. For all of the proper rules and procedures established by 3020a, apparently a properly represented teacher is not one of them. Even accused terrorists at Guantanamo Bay get some sort of representation. But, hey, we are teachers. We are worse than terrorists in the eyes of everyone else.

Of course, the DOE lawyer chimes in later with this revealing nugget:

I don’t think it’s appropriate for the Department to make any type of comment on Ms. Rubino’s statements. All we’re going to say is that we believe that she was well aware that this hearing was commencing by February 3rd. She had requested the hearing. She has spoken to counsel previously. She was adequately represented yesterday. The Hearing Officer made a representation that the hearing was commencing today. She still chose to fire her counsel and she has come today without counsel. Department is ready to proceed and, at that point, we will rest making any comments regarding her statements…

So, Christine was told way ahead of time that the hearing was going to start that day. Despite that important fact, she still chose to fire her lawyer. What a horrible decision on her part! I mean, she knew the hearing to decide her career and whether or not she will be able to feed her two children was starting February 17, 2011, and she had the gall to not want her incompetent, defeatist and uncooperative union attorney to be in charge of her defense. She is just so difficult. To hell with her representation. If she does not want to play ball the way it is supposed to be played, she can defend herself. We, the almighty DOE, are ready to proceed. After all, we had an army of high-priced New York City Police Department detective drop-outs investigate her for a year, go through her garbage, question her friends and write up reports through Richard Condon’s office, and we did it with no time limit and no pressure whatsoever. We took our sweet old time and spent hundreds of thousands of dollars railroading Christine Rubino for the past year. It is only fair that she have no opportunity to get real representation or even get an hour break so she can read the thousands of pages of “evidence” we handed off to her deadbeat lawyer yesterday. Most of that evidence we have absolutely no intention of using anyway, since it is a tactic we use to prevent the other side from properly preparing a defense.

Yes, this is exactly what Mr. Gamils, the DOE lawyer, is saying.

To her credit, Christine held her ground. She held the floor as long as she could to reiterate her point that she needed proper representation that would take her one measly old day to get. She kept explaining how it was not fair that she was being forced to proceed without representation, or at least a break to give her the opportunity to prepare. At one point, she even said that she felt as if she was being punished for firing her union lawyer. That is precisely what they were trying to do. It is typical DOE: retaliation for not playing their brand of filthy ball. Retaliation with the complicity of the union.

And then we get to my favorite Randi Lowitt quote of the entire hearing:

Oh, okay. I have been reviewing in my mind the conversation we had over the past hour or so. And while acknowledging that there is no obligation at all, anywhere, for me to do so, I am going to grant Ms. Rubino’s request for an adjournment for today. Please be clear, on the record, that if State Education does not cover my fee–obviously, I am not going to let the DOE cover it because the DOE is not asking for the adjournment–and it will be your responsibility to cover my fee, Ms. Rubino. Do you understand that? If the State Education Department does not cover my fee–but I’m going to submit it to them because we have been working this and that’s the way it goes. Um, but I do not want to disadvantage you, especially when it comes to questioning witnesses, with not having counsel present. Acknowledging the fact that although you were told, yesterday, that the hearing would go forward today, you were not able to retain counsel as expeditiously as you might have wished….

So, Randi Lowitt, a woman who gets paid upwards of $1,800 a day, does not want to adjourn because she fears she will not get paid her daily “fee”. She demands that the woman she knows she is going to terminate, the woman who is blowing her life’s savings on salvaging her career, pay her daily fee if “State Education” does not cover it. This just so Christine Rubino can get halfway decent representation. Christine’s children have to starve so Randi Lowitt can keep driving her Mercedes (I assume) and living in her McMansion (I assume). Apparently, people can make a great living from destroying teachers and making inane sports references (read the transcript) all day long.

Of course, this could have also been Lowitt’s way of trying to dissuade Christine from asking for an adjournment, in which case it makes Lowitt a liar and a bully. Liar, bully, extortionist or teacher-killer, you decide.

Yet, Christine stuck to her guns and received the adjournment she was seeking. As you can read in the transcript, she refused to be bullied by the DOE, Randi Lowitt and Theresa Europe.

Unfortunately, this was just the start of many daily uphill battles Christine Rubino had to fight. We know what happened at the end of this hearing. We also know that the New York State Supreme Court overturned Lowitt’ s Draconian termination. Unfortunately, Lowitt got the case again and suspended Christine for two years without pay. That is two years of being unable to pay her mortgage or feed her children. All the while, Randi Lowitt lives high on the hog terminating, extorting and taking revenge on teachers.

This is another close-up of the 3020a process. This is what “tenure” looks like for New York City public school teachers. Oh, what cushy gigs us teachers have.

More Tales “Shocking to the Conscience”

There might have been a time when the 3020a process had some integrity. Under the reign of Pharaoh Bloomberg, however, whatever integrity it once had has come into question.

When a teacher does not agree with a ruling of the independent arbitrator, their only recourse is to appeal to an actual court of law. For many teachers, the cost of lawyering up and the inordinate amount of time it takes to go through the court system makes appealing the arbitrator’s decision out of the question.

Yet, more and more, teachers who go to the court system see some form of justice served. It must be pointed out that judges generally do not like vacating decisions of labor arbitrators, since doing so reduces the integrity of the arbitration process. The fact that so many judges are doing so proves that NYC’s 3020a process is broken.

Take the case of Nicole Moreno-Lieberman. The NY State Supreme Court vacated the independent arbitrator’s ruling of a $7,000 fine. Judge Lucy Billings’ recent decision says a mouthful about the pitfalls of the 3020a process.

Ms. Moreno-Lieberman was a dean at P.S. 169, a district 75 school. She received a complaint that “Student A” had tried to kiss and grope his former girlfriend, “Student B”. “Student B” complained to Moreno-Lieberman about the harassment, who called “Student A’s” father in for a conference on the following Monday (this all took place on a Friday). “Student A” then wrote a note on a napkin to another student, “Student C”, explaining that he would rather kill himself than allow this complaint to be the reason he has to return to the Dominican Republic. He asked “Student C” to deliver the note to “Student B”, which also contained a request that she retract her complaint. “Student C” dutifully delivered the note to “Student B” and “Student B” delivered the note to dean Moreno-Lieberman.

The note was written in Spanish. A school aide translated the note into English for Moreno-Lieberman. Appropriately, Moreno-Lieberman brought the note to the school guidance counselor. The counselor interviewed “Student A” and required him to write another note promising that he would not hurt himself. She then determined that “Student A” was well enough to return home on his own.

When “Student A’s” father came in for the meeting on Monday, Moreno-Lieberman learned that the boy did indeed try to hurt himself and was hospitalized. Moreno-Lieberman showed the napkin note to the father, at which time the guidance counselor came into the room. They talked about the attempted suicide of “Student A”, then left the room to ask the principal if they could see the distraught boy in the hospital. When they returned to the room, “Student A’s” father was preparing to leave. Moreno-Lieberman did not realize he had taken the note with him. She called him later in the day to ask if he could return the note, but he never did.

Both Moreno-Lieberman and the counselor were brought up on 3020a charges. Moreno-Lieberman’s charges demonstrate the underhanded way the Department of Education goes after teachers. Why Nicole Moreno-Lieberman was brought up on charges at all in this scenario is tough to understand. She seemed to go through all of the proper channels when it came to both the harassment and the threatened suicide. Keep in mind that District 75 is for special needs students, and perhaps scenarios like this are pretty common in this school.

Yet, because a student tried to hurt himself, someone’s head needed to roll. The DOE slapped Moreno-Lieberman with the following four charges:

a) upon learning of Student A ‘ s suicide threat, she failed to notify the principal, allowed Student A to be released from school without notifying his father of the suicide threat, and did not telephone 911 for help for Student A

b) based her conduct set forth in Specification I, she endangered the physical, mental, and moral welfare of Student A, a child

c) based on her conduct set forth in Specifications I and 11, she failed to prevent or contributed to Student A ‘ s suicide attempt and hospitalization

d) She, albeit unintentionally, negligently allowed a student’s handwritten suicide note, written on a napkin and referred to as the “napkin note,” to be taken from the school by the student’s father without preserving a copy of the note. Further, her serious negligence . . . impeded the investigation” by Department of Education into school personnel’s handling of the student’s threat to harm himself.

These charges are designed in a way that, if you are found guilty of the first one, chances are you would be found guilty of the next two. However, if you are exonerated on the first one, then you must be exonerated on the next two. That is why the fourth one is there. If the DOE cannot get you on one major thing, they will throw a trivial thing on there, or several trivial things. As a chapter leader and someone who has read dozens of 3020a charges of teachers across the city, this is the standard way the DOE tries to get teachers.

As an arbitrator, someone who needs to be approved every year by the DOE to retain my position, I would look at these charges and ask “which one(s) will this teacher be found guilty of?” That is how the system is designed. Arbitrators always have to split the baby. The DOE knows this, and always slaps teachers with charges that make it easy for the independent arbitrators to do just that. Therefore, teachers are rarely ever exonerated. This allows the DOE to turn around and say “see, we never accuse a teacher who is not guilty of something”. It makes it seem as if the DOE and the 3020a process have integrity. Yet, “integrity” is the last word that comes to mind when you look at this crooked process.

The DOE’s arbitrator, David Hyland, dismissed the first three charges. On the fourth charge, Hyland found Moreno-Lieberman guilty. She allowed the “napkin note” to walk out of the school with the father, which hindered the DOE’s investigation into how this matter was handled. Hyland fined Moreno-Lieberman $7,000 for her “negligence”.

This ruling was torn apart by Judge Lucy Billings of the New York State Supreme Court:

A review of the testimony by petitioner, the Department of Education investigator Derrick Dottin, the school principal Scallon, and Student A’s father shows that, when petitioner handed the “napkin note” to the father, she did not intend that he keep it. Her distress upon learning of Student A ‘ s suicide attempt, however, overcame her customary professional discipline, so that she neither sought to retrieve the note from the father before he left, nor arranged to copy it. This record supports the Hearing Officer’s decision insofar as he found that petitioner was negligent in failing to satisfy her responsibility to preserve school records.

Despite a careful, conscientious opinion, the Hearing Officer nevertheless overstated the importance of the missing “napkin note” to respondents’ official investigation of the circumstances surrounding the charges against petitioner. The investigation focused on the possible further step to have been taken by school personnel to prevent Student A ‘ s suicide attempt. Among the school employees, students, and family who read the note, including petitioner, school aide Gabriel, guidance counselor Vartanova, Student A, his father, and Student B, there was no disagreement about the note’s contents. No evidence suggests that the note’s exact wording or appearance was of a consequence to the investigation.

As painstaking as the Hearing Officer’s recitation of other factual details may be, his decision fails to consider these critical circumstances. The Hearing Officer never explains why documentation of the note’s undisputed contents was central to the investigation’s conclusions–because, when the missing record is considered in the context of the consistent evidence set forth above, how the note’s physical absence hindered the Department of Education, in its investigation or otherwise, is inexplicable.

The Hearing Officer admittedly never explains how physical possession of the napkin would changed the investigation’s direction or conclusions, but simply declares that he “will not speculate on exactly how the investigation might have turned out differently had the ‘napkin note’ been available.

In other words, David Hylan found that Moreno-Lieberman hindered the DOE’s investigation when she neglected to secure the “napkin note”. Yet, Hylan at no point explains how the absence of the note hindered the investigation. The contents of the note were never disputed by anyone who had ever seen it. Everyone agreed on what it said. Yet, Hylan still found her guilty of hindering an investigation.

And that cost Moreno-Lieberman $7,000. In response, Judge Billings decided the following:

Yet the Hearing Officer justified the amount of the $7,000 fine he assessed against petitioner on the significance of the missing “napkin note” in somehow obstructing respondents’investigation of the charges, to “teach her a lesson about the importance of preserving Department of Education of records. Petitioner already was punished by losing her position as the dean of discipline. The $7,000 fine, arrived at without reference to any specific criteria whatsoever for the imposition of fines, is excessive to the point of shocking the conscience.

In fact, the absence of any specific guidelines for the imposition of fines in teachers’ disciplinary proceedings shocks the conscience and is a deficiency to be addressed by respondent or a legislative body. While respondents and their designated Hearing Officers unquestionably are authorized to impose fines on teachers for disciplinary offenses, the decision makers must do so fairly, not arbitrarily.

Neither the Education Law, nor the Chancellor’s Regulations, nor any other code fixes any “primary standard” or articulates any objective test or gauge, to guide respondents’ or  Hearing Officers’ exercise of authority and discretion in their assessment of monetary penalties. Their assessment of penalties that they are charged to administer may be upheld if the assessment is rational and not excessive, yet no statute or interpretive regulation articulates a standard or gradation against which to measure the rationality or excessiveness of a monetary penalty.

In sum, the absence of any statute or implementing regulation to guide the evaluation of fines to be imposed allows unfettered, standardless, arbitrary administrative decision making. By delegating unbounded latitude to respondents and Hearing Officers in these administrative actions, the statutory and regulatory scheme leaves their decisions subject to untrammeled discretion.

Translation: the arbitrator had no good reason to slap Ms. Moreno-Lieberman with a $7,000 fine. There is no Chancellor’s Regulation, state law or legal precedent that sets any sort of penalty for failing to secure school records. Therefore, David Hylan could only have arrived at his $7,000 decision arbitrarily. This is dangerous, since arbitrators in these cases have a tremendous amount of latitude in setting penalties. They have a responsibility to do so fairly and not based upon numbers they pull out of thin air.

Judge Billings even goes further and claims that, based upon her reading of legal precedent, the maximum fine for Ms. Moreno-Lieberman should be $1,000. Not only did Judge Billings vacate the findings of the independent arbitrator, but did his job for him in coming up with a just ruling.

Judge Billings is right on with everything she wrote about this case. More and more judges are looking at the rulings of 3020a arbitrators and claiming that they are “shocking to the conscience” of the court. This should not be, since arbitrators should be fair and impartial. However, because these arbitrators are on the DOE payroll and depend on being reappointed every year by the DOE to keep their positions, they will always find something against any teacher who is brought in front of them, no matter how frivolous or arbitrary the charges.

A $7,000 fine is ridiculous for losing a note that everyone had already seen. The DOE spent what must have been millions of dollars in reassigning Ms. Moreno-Lieberman, paying an arbitrator and hiring lawyers to argue the case in front of both an arbitrator and an actual court of law, not to mention an investigation that must have taken at least a year. In the end, the DOE will not even get $1,000 of that back from the teacher they harassed and demoralized.

This is the unseemly underbelly of the NYC Department of Education. If a real reporter (not the clowns at the Post or Daily News) were to do an expose on the waste and corruption that takes place in these 3020a hearings, they would find enough dirt to outrage taxpayers for years. Until that time, the 3020a process rolls along as corrupt and wasteful and secretive as ever.

Let this be a message to any teacher who finds themselves in the same situation. Do not give up. The independent arbitrator’s findings are not the end-all, be-all of the process. It may cost money and time, but if you appeal their ridiculous findings, you have a good chance of being cleared by an actual court of law that does a much better job of meting out justice.

The DOE’s Moral Bankruptcy

As a potential witness in an ongoing 3020a hearing for a colleague, it has been made very clear to me that I am not to talk about specifics of the case. The same goes for my colleague. One gets the sense that the Department of Education treats this as an actual trial.

We have already seen in the case of Chaz that the DOE has no problem with revealing incomplete information to the media about cases that have already been resolved. Despite the fact that independent arbitrators have already closed the cases of 16 teachers, the Daily News was able to run an article about these teachers along with Dennis Walcott’s sentiments that they should be fired.

The Daily News was only able to run this story because the DOE gave them biased and incomplete information.

It does not stop there. Susan Edelman of the New York Post ran a story this morning featuring teachers who got in trouble for things they have said on Facebook. The first teacher that was mentioned stuck out:

Meanwhile, Facebook is an occupational hazard. Patricia Dawson, an English teacher at the HS of Economics and Finance in Manhattan, is fighting DOE termination on misconduct charges for jesting 15 months ago on her Facebook page, “I’ll bring a gun to school” to get into security-controlled elevators. Several students joined in the banter — one offering to bring a gun to help her.

“No one took it seriously,” an insider said.

Colleagues say Dawson should not lose her career over a wisecrack, but her words, which the DOE deems harmful, are carved in cyberspace.

Patricia Dawson is “fighting termination”. Does this mean that the DOE is still doing an investigation or conducting a hearing? Does this mean that the hearing is over and the teacher is waiting on the arbitrator’s decision? Whatever it is, judging from this passage, the case is not yet closed.

I am sure that, just like my colleague, Patricia Dawson was warned against talking about the case. So how did the NY Post get information about a case that is not yet resolved?

There could only be one answer: the DOE gave them the information.

Why is it that a teacher cannot talk about their case, but the DOE can?

It seems to me that the DOE is looking to put pressure on the investigators and/or arbitrator to make the “right” decision. And what is the “right” decision?

That’s right, termination.

If they are able to cause enough of a public uproar, the arbitrators will be pressured to make the decision that the DOE wants. All the while, the teacher is not allowed to speak out or give their side of the story.

This is just one of the many ways that the 3020a process is skewed against the teacher.

It is fitting that the article ends with a mention of Christine Rubino. As we have seen, Rubino was able to get her termination overturned in New York State Supreme Court, a decision that the DOE is currently appealing.

During Rubino’s hearing, the DOE made up charges as they went along. They added new charges not originally included as they went into her past and tried to find things they could twist out of context.

So while the DOE tried to scare teachers with a sense of gravitas about these termination hearings, the fact is that they are nothing more than kangaroo courts. While most teachers do not get fired, the vast majority are found guilty. Exoneration is rarely ever an option for a teacher brought up on the most frivolous of charges.

How much tax money is being spent on these hearings? How much money is being wasted on lawyering up so the DOE can fire someone for something they said on Facebook? In an age of supposed budget cuts where art and music are disappearing and schools are being closed, this waste of tax dollars should be a crime.

Our tax dollars, the hard-earned money of working people, are being spent to fire other working people. And if the DOE can fire these working people for such trivial things, it sets a nationwide precedent for employers across the country to do the same.

This is the twisted game Bloomberg’s Department of Education plays. To say it is unethical is an understatement. To say that it is underhanded falls short of the mark. This is pure evil done by people with no scruples and no sympathy for those who have to actually work for a living.

The 3020a process is in need of a major overhaul. Add it to the list of things for which our union should be fighting, but is not.

The Human Cost of Teacher Bashing: The Christine Rubino Case

Readers of this blog are familiar with the story of Christine Rubino.

Rubino is a veteran teacher with 15 years’ experience in the Department of Education. In June of 2010, she was teaching at P.S. 203 in Brooklyn when she made the following comment on her Facebook page:

“After today, I’m thinking the beach is a good trip for my class. I hate their guts,”

The comment was made the day after a 12-year-old girl drowned at the beach on a class trip. A few days after making the comment, Rubino took it down from her page. Yet, the damage had already been done. A coworker of hers printed up the comment and showed it to the principal, who then called the DOE.

Since the comment came to light in June, it was not until the following September, after the new school year had begun, that an investigation was launched. Rubino was not pulled out of her classroom during the investigation and had no idea the DOE was conducting one.

It was not until after the DOE had completed their investigation that she was pulled out of her classroom to await a 3020a hearing. The DOE’s recommended penalty? Termination.

Rubino’s original, union-appointed (NYSUT) lawyer had advised her to resign at the outset of the hearing. Believing that this was not an incident that warranted termination, Rubino fired her union attorney and called in outside representation in the form of former NYSUT lawyer Brian Glass.

Sue Edelman of the New York Post had showed up to the hearing. It was her right, since Rubino requested to make the hearing open to the public, a right many NYSUT lawyers try to dissuade their clients from exercising. This raised the ire of the DOE, including the arbitrator assigned to the case, Ms. Randi Lowitt.

This is when the DOE decided to play hardball. Theresa Europe, head of the DOE’s Administrative Trials Unit, sat in on the hearing to stare daggers at the arbitrator. This is not the usual practice, Europe ostensibly having better things to do with her time than to concentrate on any single case.

Throughout Rubino’s ordeal, the DOE kept throwing on charges that had nothing to do with the original Facebook post. They tried to bring up an instance in 2008 when a student had assaulted Rubino, trying to twist it into a corporal punishment charge. Students who had been coached to testify in the most damning possible way for the DOE were tripped up during cross-examination. At least one of them was forced to admit “that’s what they told me to say”. The principal testified that Rubino was a wonderful teacher who never had a problem.

Most importantly, Rubino herself had expressed genuine remorse throughout the process. The fact that she had taken her Facebook post down a few days after writing it shows that she had felt bad for writing it. She testified that she regretted writing it. At no point did she stand by her words. She acknowledged that it was a statement made out of frustration, a place every teacher finds themselves every now and then.

After all of this, what punishment did Randi Lowitt decide upon? Termination.

We should stop here for some commentary.

It was about a year between the Facebook post and the notice of termination. That means a year of investigations, lawyers and substitutes to cover Rubinio’s class. All of this for a Facebook post that was taken down after a few days. Needless to say, it was a tremendous squandering of resources.

And who is this coworker who informed on Christine Rubino? A man who is currently awaiting his own 3020a hearing for abuse charges that could wind him up in prison. This is one of the seedy underbellies of school politics. There are informants in every building. Usually, the informants are those with lots to hide: either they are creeps or incompetent. They play the role of informant because that is what gets them through another year. It is the only role that they are able to play, one that shines the spotlight on others in order to take it off themselves. It is a system conducive to destroying good teachers while protecting the worst our profession has to offer.

Of course, these informants would not have any power if not for a principal who feeds into their informing. In my experience, most administrators are happy to have a few glad-handers and back-slappers on their staffs, ones who share gossip in hushed tones in the principal’s office.

And then there is the matter of what the principal did with this information. Despite the lines that principals run that they do not have a choice but to call in complaints to the DOE, there is always a choice. A human being with people skills might have called Rubino into her office, asked about the post and gave her a reminder of professional conduct outside of school hours. At the very worst, the principal could have given her a letter in the file. The transgression did not warrant anything more than some sort of in-house disciplinary action.

But the rumor mill reveals that principals are under strict orders from Tweed to call in any Facebook incidents that come to their attention. Of course, this still does not mean that the principal has to follow this directive. The DOE refuses to set a clear social media policy for teachers. They want to formulate policy through precedent and they want to set the strictest precedent possible. Bloomberg’s DOE, at the end of the day, is an entity that aspires to be corporate. They want to set a strict precedent for teachers in NYC because they know it will set a strict precedent for the teaching workforce throughout the country, not to mention the workforce in general. It is Bloomberg’s gift to corporations. He wishes to give employers nationwide more and more control over the lives of their workers.

This is why the DOE had Rubino’s verdict determined before she sat in front of a hearing officer. Even on the best of days, the 3020a process is skewed against the teacher. In those instances where the DOE already has their minds made up, the teacher’s fate is sealed. This explains Theresa Europe’s glowering presence and the final verdict that is just too ridiculous to be called anything close to fair.

Termination left Rubino without a livelihood. A career and a school that had defined her for 15 years, in which she had an unblemished record, were completely cut off. Rubino had to find a way to support her two children without any sort of financial support. She took to tutoring students in her neighborhood. She took to doing odd jobs here and there like focus groups. Still, it could not replace the salary she had achieved as a teacher of 15 years. She started falling behind on her mortgage. Eventually, she had to sell the house in which she lived with her two children. Before she had been terminated, she took out a massive loan against her retirement account. It was one of the only means she had to sustain herself and her children.

While all of this is going on, she was the subject of countless news columns, including Susan Edelman’s at the New York Post. Edelman brought a photographer with a telescopic lens to stalk 51 Chambers Street in order to catch a candid photograph of Christine Rubino. What is worse, in my opinion, than the half-baked and half-digested stories spit up by New York’s newspapers about teachers who face termination are all of the comments left by readers who say things like “fire her, she’s not fit to be around children”. It would be hard for me not to stalk the internet and correct every judgmental dimwit who thoughtlessly called for my head on a platter. I guess none of these people ever made a mistake or had a candid moment that, if discovered, might also lead them to lose their jobs.

But there was a lot of fight left in Christine Rubino. Knowing that the verdict she received was unfair, she did what more and more teachers are doing with the independent arbitrator’s ruling: she took it to court. By this point, most teachers are so beaten down that they cut their losses and find someplace to lick their wounds. Plus, traditionally, courts of law have been hesitant to overturn rulings by labor arbitrators for fear of weakening the integrity of the arbitration process.

Rubino hunkered down for another round of battle with the DOE, this time in front of the State Supreme Court and Justice Barbara Jaffe. Jaffe reviewed the details of the case, the hearing and of Rubino’s career. She deemed that the Randi Lowitt’s decision was “shocking to the conscience” of the court and vacated her decision. This type of thing is becoming more and more common in New York City. Rubino’s attorney, Brian Glass, wrote the following letter about this issue:

“This is the fourth 3020-a decision in which I have had the penalty vacated by judges in the last approximately two years. I also have had at least 3 Unsatisfactory annual ratings of teachers overturned in the same time period. Each decision has been by a different judge. I frankly was not optimistic about winning any of these cases. There appears to be a recognition by the courts that the 3020-a process as well as the U rating appeal process have become wrongly exploited as a weapon of the DOE gestapo that has sought to demonize teachers over relatively minor incidents. There also appears to be a recognition that these so-called “neutral due process” procedures for teachers are in reality not neutral at all, given the powerful financial incentives of the hearing officers to not risk their own livelihoods in such cases. Hearing officers who dare not to do the DOE’s bidding risk their livelihoods by not imposing overly harsh penalties that assuage the DOE bully prosecutors. Fortunately, there are judges in this country who are wholly independent of the DOE and are compassionate enough to understand the importance of due process in this democratic society as well as allowing individuals to learn and move on from their mistakes.

The DOE almost certainly will appeal this judge’s decision, invoke its automatic stay for 9 months, and tie up this case in litigation for the next year. Even if Ms. Rubino is successful on appeal, the DOE will seek to further delay her reinstatement by insisting on additional costly hearings and arguing that only the most severest of penalties must be imposed. The DOE and media outlets favorable to its present policies will also likely criticize the courts rather than the DOE prosecutors, claiming how outrageous it is that Ms. Rubino should get a second chance at restoring her career. Unfortunately she has a long road ahead in her quest to restore her livelihood and reputation.

The DOE did not need to elect to invoke the 3020-a process in this case. A simple warning to Ms. Rubino about her mistake would have sufficed, and this would not have been repeated. Perhaps in this time of scarce resources, the substantial time and money on this case could be better allocated by the DOE positively supporting its teachers in the classroom rather than demonizing and punishing its staff.”

Most recently, Peter Principe also got his termination verdict overturned after the same process of a biased hearing, media bashing and a deprived livelihood.

For Christine Rubino and Peter Principe, the war is not yet over. Barbara Jaffe might have overturned Randi Lowitt’s decision, but the DOE is sticking to its anti-teacher guns. Jaffe concluded that Rubino should have another hearing to find a lesser penalty. And the arbitrator for this hearing? Randi Lowitt.

Who knows how bitter Randi Lowitt will be after a judge has already vacated her first decision? She might give a lesser penalty, but it can still be a harsh one. She can exact any type of penalty she wants short of termination. It can be an unpaid suspension for a ridiculous amount of time or it can be a fine meant to drive Christine Rubino into the poor house once and for all. And who knows if she won’t have Theresa Europe in that hearing room glowering at her again to ensure she makes the right decision? If the details of these 3020a hearings prove anything, it is that the DOE cannot be trusted to honor its contract with the UFT with a fair hearing process.

Here is a novel idea for Randi Lowitt, Theresa Europe and the general public who want Christine Rubino’s head to roll: the woman has suffered enough. Her two children have been forced out of their home, she has had her name dragged through the mud and the public has put her under enough scrutiny to last a lifetime. For one human moment, a moment that she immediately regretted, Christine Rubino has been repeatedly pummeled into the ground. Much more than I, she is entitled to the moniker “assailed teacher”.

This is the human cost of the DOE’s war on teachers. These are the facts that they do not include in their notices of termination and press releases. All of us, no matter what we do for a living, are entitled to our mistakes. We are entitled to blow off steam and should have the ability to speak freely in whatever forum we choose. This not only goes for teachers, but for all human beings.

Employers across the country, whether public or private, exercise greater control over the lives of their workers than ever before. Not only do they own the labor of their workers for the time they are on the clock, they are coming to own everything their workers say and do in their personal lives. What used to be protected speech is increasingly being regulated by entities who do not work by any sort of Bill of Rights. In the case of Christine Rubino, they did not work from any sort of written policy at all. The rights of employers more and more are coming to supersede our most cherished democratic values.

This was the original purpose of “tenure” for teachers. They were supposed to be protected from frivolous allegations. Today they can you for letting off steam on Facebook. Tomorrow they can you for having the wrong political views, the wrong sexual orientation or the wrong color hair. There is something much more fundamental behind the war Bloomberg and Walcott have declared on the rights of teachers. It is more than corporate education reform. It is a war on our most fundamental American values, values for which people have fought for over 200 years.

What happens to one teacher happens to us all. What happens to one worker happens to us all.