During this past school years’ Spring Break, I attended the latest act in the ever-unfolding drama of the NYC Department of Education versus Christine Rubino.
Christine was terminated in 2011 after some comments she posted on her personal Facebook page. The DOE’s arbitrator, Randi Lowitt, believed that this one incident made Christine unfit to teach forever, despite 15 years of spotless service. Facing financial and professional ruin, Christine hired the Teacher’s Lawyer, Bryan Glass, to appeal Lowitt’s decision to the New York State Supreme Court. Justice Barbara Jaffe found that Lowitt’s decision was “shocking to the conscience” of the court and mandated that Lowitt come up with a less harsh penalty.
Meanwhile, the DOE appealed Jaffe’s decision to the New York State Appellate Division. While the case was working its way up the calendar, Lowitt handed down her new decision: 2 years suspension without pay. This decision kept Christine in poverty just long enough so that she had to sell the house in which she was raising her two young children. I suppose it makes sense in some twisted universe somewhere for Lowitt to traumatize two young children for the sake of protecting countless other children from Facebook statuses they will never see.
Right after Lowitt’s new decision was handed down, the DOE’s appeal was ready to be heard by the Appellate Division. As opposed to the State Supreme Court, whose cases are heard by one presiding judge, the Appellate Division has a panel of 5 justices. I arrived relatively early and was able to listen in on some of the other cases being heard. The justices on the panel seemed fair. They were patient with people who did not have lawyers and asked pointed questions that showed they had not only listened to the arguments, but read the background of each case. How would they receive the Christine Rubino case? Christine’s future literally hung in the balance.
Christine’s case was called. Bryan Glass headed to the podium as did the DOE’s lawyer, Deborah A. Brenner. The litigants at the Appellate Division have only a few minutes to make their cases before the justices start asking their questions. Brenner started the case by painting Christine Rubino in the worst possible light. Not only had Christine said something bad on Facebook, she lied about it, tried to have her friend lie about it and did not show any remorse for her actions. Brenner basically summarized Lowitt’s original decision and justification for terminating her.
Bryan Glass pointed out that Christine did show remorse. After all, she had taken down the comments three days after she posted them, well before she knew of any investigation against her. He also called into question the idea that Christine tried to cover up the matter. As I have written here before, the DOE investigators pretty much browbeat Christine’s friend in the back of a DOE car (yes, they have those) until she said what they wanted her to say. The browbeating included threats of going to jail on Riker’s Island for lying to investigators, a bluff on their part since one cannot be prosecuted for such an act. Despite the fact that Christine’s friend had this horrifying experience on tape, Lowitt did not at all consider it when making her decision.
Once Glass had ended his presentation, it was time for the jutices to ask questions. The first few questions sought to clarify the timeline of events, like when the comments were made, when she was terminated, etc. It is difficult for me to remember all of the details now almost 6 months after the case. However, one justice in particular deserves to be singled out for a job well done.
Justice Sallie Manzanet-Daniels saw through Deborah Brenner’s disingenuous arguments. Throughout the previous cases I watched, Justice Manzanet-Daniels seemed to always sympathize with the underdog. She asked Brenner questions along the lines of, “why is termination the only penalty you’re willing to hand down?” Brenner stammered and reiterated the line of logic laid out by Randi Lowitt. Then Justice Manzanet-Daniels picked up on the matter of the supposed cover-up by Christine. She questioned why Randi Lowitt had not mentioned the audio tape of DOE investigators shaking down Christine’s friend in her decision and said that she would like to hear the tape. Brenner responded that the facts of the case are not before the court, just the arbitrator’s decision. Essentially, Brenner was instructing the justice on a point of law and procedure.
At that point, Justice Manzanet-Daniels became visibly ticked off. I am no litigator but I do know that it is not a good idea to try to instruct a judge on what should go on in their own courtroom, no matter how wrong one thinks the judge might be. Justice Manzanet-Daniels promptly closed the giant binder in front of her that contained all of the paperwork of the case and said something along the lines of “you’re right, it doesn’t matter”. She had probably made her decision right then and there. All of the justices had obviously seen the DOE’s case for the sham that it was, but Justice Manzanet-Daniels saw right to the marrow of things. What was revealed on the tape, as well as how the tape was not even part of Lowitt’s decision, was the Rosetta Stone of the entire DOE v. Christine Rubino fiasco, and Justice Sallie Manzanet-Daniels knew it.
Deborah Brenner was beaten from pillar to post by the Appellate Division. All of the justices, in one way or another, questioned the DOE’s rabid opposition to allowing Christine Rubino back in the classroom. All of them seemed to know that this case was about more than just a Facebook post. Yet, Christine Rubino herself was not so sure. After years of being vilified by the DOE and the media, she was not going to bank on anyone helping her get justice. It would be a long few weeks before the court’s decision was known.
When the decision finally did come down, it was not reported on by any of the outlets that had vilified Christine Rubino. Why would they report it? The New York State Appellate Division ruling 5-0 in favor of a teacher who had been wrongly terminated is not in step with the teacher-hating narrative they are trying to spin. That means that 6 judges in total heard the case of the DOE v. Christine Rubino, including Barbara Jaffe, Sallie Manzanet-Daniels and the rest of the Justices in the Appellate Division, and every single one of them sided with Christine. The only people who wanted to see Christine terminated were Randi Lowitt (who receives a DOE paycheck) and the New York print media (who will print any story that maintains their coveted access to Tweed and City Hall). People who have delved into the facts of this case objectively all come out on Christine’s side.
Despite the decisions by the Supreme Court and the Appellate Division, it is hard to say that justice was served. Most people in Christine’s situation would not have fought as hard as she did. They would have licked their wounds and moved on to try to make their way in another profession. Nobody would blame them for doing such a thing either. It becomes almost impossible to believe in yourself when the DOE, the media and the general public are all saying how horrible you are. Because of the efforts of these forces, Christine and her children had to live in poverty for two years. They had their lives uprooted. Christine now has to rebuild her public image. If not for an inextinguishable fighting spirit, Christine Rubino would have gone the way of countless other unfairly persecuted teachers.
This school year marks her return to the DOE not as a teacher but as an ATR. While she has won the first major battle in this war by getting back on the payroll, there is still a long fight ahead. Not only does she, like every other ATR, have to fight to get back into the classroom but she is probably due some major monetary justice due to everything through which she has been put. Whether or not Christine wants to fight these battles is totally up to her. Nobody would blame her if she stopped now.
In a particularly comical turn of events, the DOE is currently appealing the decision of the Appellate Division. However, they have to appeal it to the branch of the court system that handles appeals, which is the Appellate Division. The DOE is appealing the ruling of the Appellate Division to the Appellate Division. They would be wise to send a lawyer who is not going to lecture the justices about procedure. Then again, the DOE has never been known for their wisdom.
The DOE is afraid of defeat. They fear that they would not have the luxury to fire teachers for similar infractions in the future if Christine Rubino is able to ultimately win. If they could fire teachers for Facebook posts, what is to stop them for firing a teacher for a comment they make on a blog or something they say at the supermarket? Christine’s victory has limited their latitude as employers who like to fire people. Apparently, they have no problem with throwing more money into their obsessive quest to crush this one lone teacher who dared to fight them. At what point will they call off their legal dogs?
Whichever way she chooses to go, Christine Rubino has fought the good fight for herself and all other persecuted educators.