Due Process Protects Students and the Rights of Teachers, “Punishing” Teachers to Intimidate Them Is Disgraceful and Only Strengthens Unions

 As we move into the home stretch the mayor and his minions are stepping up the assault on teachers and their union. One leg is the appointment of a “kinder, gentler” chancellor who will assuage the anger of parents, especially parents of color. Another is through the Bloomberg/Murdoch partnership, the New York Post. The Post is in the middle of a four-part series attacking the teacher discipline procedure. The paper should be embarrassed by the shoddy reporting.

 The article names, with photographs, specific teachers and the amount of salary collected during the suspension, hearing process, as well as the crimes of which they were convicted. The fault, according to the Post, is that of the union.

 Last year at this time 660 teachers sat in rubber rooms at a cost of $40 millions a year. This year there are about fifty, some awaiting decisions after the conclusion of hearings, some hearings in progress and some awaiting the investigation of accusations of in-school or out-of-school misconduct.

 Why a reduction of 600 teachers?

   The Chancellor used the teacher discipline process to threaten and intimidate teachers. If a Sword of Damocles (“Does not Dionysius seem to have made it sufficiently clear that there can be nothing happy for the person over whom some fear always looms?”) hung over the head of every teacher they would become docile and do what they were told. Rather than a teacher discipline procedure that followed the rule of law the chancellor used the procedures as a Star Chamber, locking teachers away for months and years, at enormous costs to the city.

  Last year the mayor agreed to expedite the procedures, rubber rooms were eliminated and strict time limits put in place and enforced.

  The result: 600 fewer teachers sitting in virtual incarceration.

   The Post article gives the impression that the system is filled with “criminals,” teachers who committed heinous crimes and somehow “got off.”

   The Contract has a special section dealing with “serious misconduct,”

  The parties agree that certain types of alleged misconduct are so serious that the employee should be suspended without pay pending the outcome of the disciplinary process. Serious misconduct shall be defined as actions that would constitute:

  1. the felony sale, possession, or use of marijuana, a controlled substance, or a precursor of a controlled substance or drug paraphernalia as defined in Article 220 or 221 of the Penal Law, or
  2. any crime involving physical abuse of a minor or student (crimes involving sexual abuse of a minor or student are addressed in paragraph 6 below.), or

 any felony committed either on school property or while in the performance of teaching duties, or

  • any felony involving firearms as defined in Article 265 of the Penal Law.
  • Tenured pedagogues who have been convicted of, or who have pled guilty to, any felony not addressed … above shall be suspended without pay pending the final outcome of the Education Law §3020-a disciplinary proceeding

 If the accusations involve “sexual misconduct involving students or minors” the process is as follows,

  A tenured pedagogue who has been charged under the criminal law or under §3020-a of the New York State Education Law with an act or acts constituting sexual misconduct (defined below) shall be suspended without pay upon a finding by a hearing officer of probable cause that sexual misconduct was committed.

A rebuttable presumption of probable cause shall exist where the Special Commissioner of Investigations (“SCI”) substantiates allegations of sexual misconduct, or a tenured pedagogue has been charged with criminal conduct based on act(s) of sexual misconduct.

A report from the Chancellor’s Office of Special Investigations (“OSI”) substantiating allegations of sexual misconduct is relevant evidence of probable cause but does not create a rebuttable presumption of probable cause.

In §3020-a proceedings, a mandatory penalty of discharge shall apply to any tenured pedagogue a) found by a hearing officer to have engaged in sexual misconduct, or b) who has pleaded guilty to or been found guilty of criminal charges for such conduct.

  The time limits for all teachers have been greatly expedited, the department can no longer sit a teacher for months or years.

   The delays that allowed teachers to collect salary for years were tacitly condoned by the mayor and the department. The “excuses” of not enough investigators or lawyers or arbitrators were a subterfuge, once the mayor decided to negotiate with the union an agreement was reached that saved the city tens of millions of dollars.

  The hue and cry that teachers convicted of crimes were returned to the classroom is equally without merit.

  If you ask the department how many teachers were accused of incompetence and how many  were convicted and the nature of the penalty you will be rebuffed.

 The answer is an embarrassment: very few teachers are accused of incompetence.

  Principals whine it too difficult and takes too long. Isn’t the job of the principal to monitor instruction, to visit classrooms, to offer support and assistance, to write reviews of lessons? (The reason school reformers are so intent on using test score data is it relieves principals of the responsibility to actually be involved in classroom instruction, a task that eludes too many school leaders).

  One class of teacher discipline cases deals with out-of-school misconduct that is not drug, sex or weapons related. The arbitrator in deciding on a proper penalty takes into account the teachers record, i.e., their evaluations, opinions of supervisors and perhaps parents and former students. The arbitrator decides on the likelihood that the criminal penalty and the penalty assessed by the arbitrator is a sufficient warning to result in the rehabilitation of the teachers. There are forty years of case law to draw upon.

  The legal concept of stare decisis, precedent, impacts the decision of an arbitrator.

  The complaint about the “fairness” of arbitrators is akin to complaining about a jury. Arbitrators are jointly selected by the parties for one-year terms and either party can strike an arbitrator from the list at the end of the year.

  The current teacher discipline procedures, as amended by the contract, are a model that should be adopted as widely as possible. It is quick, protects the rights of the teacher and allows management to save dollars and time.

  So-called school reformers and the Tea Party conservatives hate due process procedures, they force management to actually prove by “preponderance of evidence” the guilt of the accused.

   It is a sad day when supporters of democracy around the world bemoan democracy at home. Justice must be swift and fair.

  The Post would scream, as they should, if any governmental agency impinged upon their First Amendment Freedom of the Press rights, they should not deny the rule of law to teachers.


One response to “Due Process Protects Students and the Rights of Teachers, “Punishing” Teachers to Intimidate Them Is Disgraceful and Only Strengthens Unions

  1. I cannot agree with you more on this article. However, it was not 660 but 744 educators because in the final months April-June of last year principals saw their last chance to get teachers out of their school and off their payroll.


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