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.