Tuesday, September 01, 2009

Comments about the Rubber Room

A friend of mine, a lawyer who is very familiar with the process of trying to remove bad teachers in NYC, shared these comments:
In federal court, even in the most complex litigation, judges tell you how many days you have to present your case, and both sides have to present their cases in this period of time, period. In contrast, teacher disciplinary hearings can take forever because no ground rules/limitations are set for the process (how much time you get to present your case). Teachers' lawyers, of course, have every incentive to drag out proceedings, because even if a teacher is bound to lose a case, extending the case by a few more hearing dates will give a client 2-3 months more time on payroll.  (Think about how that affects all the other cases on an arbitrator's long docket of cases.) Arbitrators are reluctant to limit the amount of time given for the presentation of cases for fear that their contracts will not be renewed by the union.
It's crazy, but in these proceedings there is an overwhelming amount of process, but very little justice, particularly when we think about the wrongly accused, who sit in Rubber Rooms awaiting their turn. (Justice delayed is justice denied.)
These incompetence cases are way over-litigated, particularly for "administrative" proceedings that should be governed by fairly permissive evidentiary rules that give strong weight to hearsay evidence.  At the end of the day, these incompetence cases, with PIP Plus, should be cases based almost entirely on the documentary evidence (plain-written memos and other records), and should not require every conceivable witness to explain what they wrote (years earlier) or to recall the minutiae of the details in their memos; that's what takes forever, particularly during cross-examination (where irrelevant, non-probative questions abound and waste time).  These are business records prepared by professionals, and the documents should speak for themselves!
It is almost impossible to get teachers fired for incompetence. Truth be told, these cases require one not only to prove incompetence (which is no easy task in front of even bright, fair-minded arbitrators whose engagements must be agreed to by both union and the DOE), but also that the teacher has no redeeming quality left to allow for one last chance. That's really difficult.  Absent the ability to show that a teacher is not remediable, an "incompetence case" is lost and a teacher is given another chance.
A good defense – a fail-safe legal strategy if employed by teachers’ lawyers in these proceedings – would be for a teacher to acknowledge a great deal of the deficiencies in performance, to show that the teacher is actively engaged in professional development activities, and to stress that the teacher will not blow another opportunity.  Such a defense works every time, because the real standard for “incompetence cases” is gross incompetence plus unwillingness/inability to remediate.
What's really sad is that a system that allows for the protection of the grossly incompetent can do nothing to remove the merely mediocre.  In fact, a principal would never try to get rid of a mediocre teacher because (a) it is an ordeal and (b) absent an ability to show that the teacher is not remediable, it would be a waste of time. And that's how principals look at it as a practical matter.  The track record in these incompetence cases supports principals’ instincts not to prosecute borderline incompetent teachers.
There are potential solutions; the system can be changed through legislation, given that 3020-a proceedings are a statutory construct.  Limit the number of days, by statute, in which these cases can be concluded—say 10 hearing dates total. This would give arbitrators cover to demand that the litigants present the most salient parts of their cases without over-litigating cases. Wrongly accused teachers would benefit because their cases would come up sooner, and justice for these teachers would not be delayed. Capping trial dates is a pretty good solution that would really help move cases and ensure that all sides have an adequate opportunity to be heard—protecting everyone’s due process rights, including those of the grossly incompetent.  Indeed, incompetence proceedings should not take the same amount of time to resolve/litigate than complex, class action tobacco litigation. 
The question is, who has the gravitas to persuade the UFT that resolving incompetence cases in the span of 10 hearing dates best serves all teachers—particularly the wrongly accused?  It would be unfortunate if the UFT were to view a cap on hearing dates as an assault on teachers’ "due process" rights—all that our system of justice promises is to offer litigants their day in court with rules that are fair to all parties (recall that federal court judges always set rules/limitations for trial days, lest they have a total backlog of cases).
Limiting 3020-a hearings to no more 10 full days of trial, including opening and closing arguments, might prove revolutionary (at least by NYC standards).  But one must be able to persuade a powerful union that their members’ due process rights are still being protected, and give cover to union leaders and politicians, all of whom have a stake in ensuring that the current system doesn’t continue protecting the grossly incompetent in administrative proceedings that rival capital punishment cases in time and resources.

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