Once hired, hard to fire

Firing a New York City teacher for incompetence or misconduct is a slow, costly process, writes Steven Brill in The New Yorker. While teachers wait two to five years for a hearing, they report to a “rubber room.” They receive full pay and continue to accrue pension and other benefits.

The teachers have been in the Rubber Room for an average of about three years, doing the same thing every day — which is pretty much nothing at all. Watched over by two private security guards and two city Department of Education supervisors, they punch a time clock for the same hours that they would have kept at school — typically, eight-fifteen to three-fifteen. Like all teachers, they have the summer off.

Rubber-room denizens complain their “human rights” are being violated.

Seven of the fifteen Rubber Room teachers with whom I spoke compared their plight to that of prisoners at Guantánamo Bay or political dissidents in China or Iran.

All this has been reported before, but the details make the story.

On the union web site, Brill spots a “vindicated” teacher, who the union says was persecuted by a principal who wanted to get rid of senior teachers. In fact, she’d passed out drunk in her classroom. After cutting a deal to return on condition she stay sober, she again passed out drunk and was fired.

He goes to a hearing for a teacher charged with incompetence that he estimates will cost $400,000 and take half again as long as O.J. Simpson’s trial.

(Arbitrator Jay) Siegel, who is serving his second one-year term as an arbitrator and is paid fourteen hundred dollars for each day he works on a hearing, estimates that he has heard “maybe fifteen” cases. “Most of my decisions are compromises, such as fines,” he said. “So it’s hard to tell who won or lost.” Has he ever terminated anyone solely for incompetence? “I don’t think so,” he said. In fact, in the past two years arbitrators have terminated only two teachers for incompetence alone, and only six others in cases where, according to the Department of Education, the main charge was incompetence.

When a school is closed or a job is eliminated, the excessed teacher has to apply at other schools. Most are rehired. Those who aren’t can keep collecting their full salaries while working as substitutes or not at all. This year, principals aren’t allowed to hire new teachers (except for some specialists), but they are refusing to hire excessed teachers, reports the New York Times. Principals fear the unhired and excessed teachers aren’t very good and don’t want to pay their high salaries. And, of course, they know that once they’re hired they’ll be very hard to fire if they don’t work out. Instead, principals are hiring young teachers, who earn much less, as long-term substitutes or pretending that they’re specialists when they’re not.

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  1. tim-10-ber says:

    So…since this process is an absolute waste of tax-payer dollars why aren’t they up in arms? Oh right, this is one of the first times the public gets a glimpse inside this crazy process. We have it in Tennessee, too.

    There needs to be a no excuses policy with the teachers just like with the kids. If you do x, y or z you are fired. It is in the contract. Just like the kids if they are caught with drugs the first time they are expelled.

    We need an effective way, less costly and time consuming way to put teachers on probation and then get them out.

    Sadly, I am seeing more and more teachers saying their job is just a pay check. I would never want that teacher for my child. I do know ed schools are moving wanna be teachers out of their programs but they probably are not catching enough of the mis-match candidates before they get to the schools.

    Yep, really need to figure this one out. What an absolute waste of time,, energy and money. So sad…

  2. The teachers have been in the Rubber Room for an average of about three years . . .

    So whose fault is it the process is so expensive? If all these teachers are so bad why isn’t the city hiring more arbitrators to investigate.

    Aren’t these teachers entitled to some due process? Don’t most state have laws to protect criminals from waiting this long to get their day in court?

    The fact that so few teachers ever get dismissed is just proof the whole process is crooked and has some ulterior motive.

  3. It seems that teachers are caught in the middle between the unions and the city. Its a pity because I know from experience that it hurts all teachers.

    I dispute the idea that these teachers have no “independent power.” They have as much as I do, an engineer. I can be fired at any time. I, however, work in an industry that treats me like a professional. Persons in my profession make similar salaries to those mentioned in the article ($85K, $100K) but have no union and, for the most part, have never needed a union. Why can’t teachers be treated like professionals?

    For the kind of money they’re making in NYC, they should at least be competent and have measured output. Classroom performance is a great candidate for statistical process control: Measure performance, see if it is in control, identify and remove barriers to improvement. Its not easy but it does work.

  4. Patrick,

    The problem is the variables involved. Are you planning on judging the GT teacher by the same standard as the special ed. teacher, which is what NCLB does?

    I work with a teacher who 2 years ago had 100% of her 4th grade Math students pass the state tests. Last year the district implemented a new Math curriculum and 18% of her students pass. According to the business model she is a failure, when the year before she was a top performer.

    She did not change, the curriculum and her students changed.

  5. Yes, it should be much easier to fire teachers for misconduct, but there still needs to be due process.

    “or the kind of money they’re making in NYC…” As a NYC teacher I can testify that we get paid thousands less than we would if we worked in any other NY school system within a 30-mile radius. Do we get paid more than teachers in some other states? Yes, but our cost of living is far higher.

    I think Mike in Texas has hit the nail on the head: there is no reasonable standard by which to jusge a good or bad teacher. We all say we know one when we see one, but changes outside our control can greatly affect our effectiveness. Is this true for other professions? Probably, but I don’t hear of anyone saying lawyers should be fired because a change in court procedures lowers the number of cases they can successfully bring to resolution in trial.

  6. That is one dysfunctional school district.

  7. “…Aren’t these teachers entitled to some due process?”

    Some, yes. MORE than defendants charged with crimes? I would think not, and it’s my understanding that in some states there are teachers who have continued to be paid their full salary and accrue their pensions while serving prison sentences for crimes the facts of which were also the allegations underlying termination proceedings that remain pending.

    There’s zero conceivable need for that. If you commit a felony while you’re a teacher, and are convicted by a criminal court, the matter has already been adjudicated, your rights have already been ensured, and you should be terminated immediately without some farcical parallel process.

    “Don’t most state have laws to protect criminals from waiting this long to get their day in court?”

    The federal constitution and every state constitution I’m aware of provides for a right to speedy trial, but does not actually state how one enforces that right, which is generally fleshed out by statute and/or the rules of criminal procedure. I can tell you as a prosecutor that people who are factually guilty almost never exercise their speedy trial rights.

    The guilty typically don’t WANT a speedy trial, but the opposite: they want to push off a trial as long as possible so the case naturally falls apart. If the judge allows the defense to do so, they will try to “continue the case to death,” because unlike wine no case improves with age. Witnesses move away or die, evidence deteriorates or is lost. Likewise, I expect, of these teachers pending termination proceedings. I have little the administrative procedure rules they’re operating under allow for them to demand a prompt determination. But why would they want that? Until it happens, they get to do nothing and get paid for it.

  8. I think Mike in Texas has hit the nail on the head: there is no reasonable standard by which to jusge a good or bad teacher.

    I strongly disagree. There is no perfectly foolproof standard, but if teachers will only accept perfection in this area I’m afraid we are truly doomed.

  9. tim-10-ber says:

    Education is the only field I now in which there is no standard to judge how well they do. The teachers in the building know the ineffective teachers, the kids do, the parents do and the principals do. Survey the group, see how the students do both on the tests and with value added data. Survey the teachers who get the students the next year. I believe one will see consistent trends between the bad/ineffective teachers and the effective ones. After the first year of a poor survey the teacher gets extra help, mentoring, observtion, etc. After the second year they are put on probabtion but continue to receive the extra help. If there is a third year of unsatisfactory performance then they are gone. Period. Paragraph. Three years is more than enough.

    Yes, this is the approach we take in my business world because there are always extenuating circumstances. This year the capital markets are basically closed. Does that mean the teams I manage that do not make goal are bad teams? No, it means they did everything they could but the deals were not there. For this coming year we will be doing a deep dive into their market, their clients, prospects, etc and see what ideas and leads we might help them discover. If they have a second bad year and the capital markets were back then we have a problem. For the third year we will reconfigure the team.

    This would also work in education. Expand the review base, include the students who receive the students, evaluate the teachers who promoted the students, etc…it can be done. For the sake of the children IT MUST BE DONE!!!

  10. tim-10-ber says:

    An article sorta related on Education Week but found on edexcellence.net. The model outlined in the article has successfully been implemented in many lines of business. I believe it would work well in education. Give master teachers what they want and need to be the best they can — the time to teach and not be administrators. Pass that burden on to less experienced and lesser paid associates. Pay teachers for the experience they bring to the classroom not the same as the teacher next door who is pitiful.


  11. The process in NYS was “streamlined” a few years ago after the story broke that a teacher who was convicted of selling cocaine and sitting in jail was continuing to receive his salary until he could be “fired”, which took TWO YEARS! Now, in a similar situation, it’s only supposed to take one year.

    The main reason for the extensive delay is coordinating (scheduling) time and location for the hearings, when you have to coordinate opposing lawyers and the arbitrator, plus all witnesses.

    This is also the reason for delays in ordinary trials, too, but at least there you have a permanent location and a full time judge.

  12. Rex, that makes me ask, yet again, why there should ever have to be a parallel administrative termination process in situations like that. Of course the vast majority of grounds for termination aren’t criminal in nature, but when they are, what possible need (other than kowtowing to the unions that own the politicians) is there for this? No administrative proceeding will, could, or even should have all the due process constitutional safeguards of a criminal proceeding.

    Convicted of dealing cocaine? It what universe is there any reason someone like that should continue being paid (employed isn’t the correct word for it) by the taxpayer?

  13. “Probably, but I don’t hear of anyone saying lawyers should be fired because a change in court procedures lowers the number of cases they can successfully bring to resolution in trial.”

    A lawyer can be fired for any reason at all. Which is the big difference. I see no reason why teachers should be protected.

  14. Cal, you’re comparing lawyers in private practice to teachers in the public schools. Wouldn’t the clearer comparison be to government attorneys? I know as a prosecutor I serve at the pleasure of my elected boss, but I’m sure by contrast there are other government lawyers who are unionized and protected by similar procedures…though to what extent I don’t know, and I doubt they go quite THIS far, since any attorney who engaged in some of these levels of misconduct wouldn’t just be looking at losing their job, but being disbarred.

  15. See, here’s why I hate these kind of crap pieces. First of all, this isn’t news. We’ve known about the rubber rooms for over a decade (at least). People have written novels. So all this manufactured shock and awe that such a thing exists is disengenuous at best. That NYC hasn’t fixed the problem — or that, indeed, that it created the problem in the first place — is NOT a reflection on every blessed school district in the country. It is probably far more a reflecton of their commuinity standards (it is NYC, you know) than anything else — as, in fact, all school districts reflect their communities in some way. Corruption and endless beaurocracy in NYC? No! Say it isn’t so!

    The system is as absurd as Waiting for Godot, but equally absurd would be basing reforms on it.

    You’re not going to see meaningful teacher evaluation reform right now because it is expensive. Developing tools and administering them effectively takes time and $$. Oh, wait, we can just shovel another 10 kids into each class so we can pay some administrator to evaluate me on whether or not I’ve written the state standard for the day on the board.

    All you who cry about administrative overhead, who do you think they’re going to hire to do all this evaluation and handle the reams and reams of paperwork associated with it?

  16. Dave J,

    I understand the overwhelming number of teachers in the “Rubber Rooms” are not charged with crimes. By the way, here in Texas were I to be convicted of a felony I would lose my teaching certificate.

    Regardless, it is not the teachers in the Rubber Room slowing the process down, it is the City of New York.

  17. “Regardless, it is not the teachers in the Rubber Room slowing the process down, it is the City of New York.”

    A classic for the ages!

  18. “Regardless, it is not the teachers in the Rubber Room slowing the process down, it is the City of New York.”

    I have no idea whether that’s correct or not. How do you claim to know that?

  19. Perhaps you might care to read the response of someone who teaches in New York.

  20. I know it b/c I too read NYCEDucator’s blog, as well as several others by NYC teachers.

  21. Hate them or not, these types of articles keep the sort of ludicrous results that inevitably spring from an institution as deeply flawed as public education before the public reminding us of what we’re getting for our tax dollars and broadly implying that the education we’re getting for those tax dollars as similarly, deeply-flawed.

    If it makes you feel better to convince yourself that evaluating teachers is simply beyond human capacity then knock yourself out. Just keep some smelling salts handy because it’s going to happen.

    As the survival of schools goes from being a certainty not worthy of consideration to a function of parental satisfaction the quality of the teaching staff will become measurable because schools that make an effort to inform parents of the estimable quality of their staff will be rewarded with the patronage of those parents. Schools that are above such undignified considerations will be referred to in the past tense.

  22. Lightly Seasoned writes:
    >You’re not going to see meaningful teacher evaluation reform
    >right now because it is expensive.

    this is untrue — it’s been implemented: it does take time and focus and works best when infused throughout the culture, but literally millions of organizations are able to implement merit pay and review amid uncertainty)

    the “oh the expense”, “oh the difficulty” and “oh the uncertainty” are the three lamentations (aka strawmen) which should be turned on their ears as “how do we implement reform as if it were important and our children’s education depended on it.”

    agreed, it can’t (and shouldn’t) rely on standardized tests. so don’t raise that strawman. And it’s not a purely transactional model around commissions. ($ for AP results) Peer review and supervisory review are universal elements, as are parent review (which they ultimately vote on with their feet)

    It’s not as if we’re trying to square a circle.

  23. Mike quoth:

    “Perhaps you might care to read the response of someone who teaches in New York.”

    Well, that there article purty much settles it, Ah don’ think!

  24. Rags, I never said it would settle it. Try not to be such an obvious moron.

  25. Roger Sweeny says:

    Among the defenders of the present systems, I notice some of what lawyers call “arguing in the alternative.”

    1. It’s impossible to determine who is a better teacher than another, so of course it should be just about impossible to dismiss teachers and there should be no “merit pay.”

    2. Of course, you can tell who’s a terrible teacher but it’s the administrators’ fault that they exist. Administrators could get rid of them–and could keep them from being hired in the first place–if they would just do a better job and try harder.

  26. The fault doesn’t lie with NYC as much as the state. NYC is merely complying with state law.

    As I said above, it’s the process (scheduling and coordination) that makes even a simple hearing take so long to happen. That is, just to get a certified copy of a conviction record in front of an arbitrator who then makes his/her ruling takes almost a year to accomplish. Why a district can’t in the alternative go in front of a judge instead doesn’t make sense from a due process point of view, but again, it’s a matter of state law.

  27. Margo/Mom says:

    From the point of view of an outsider (that is, not a New Yorker), this is a problem that has a solution if the goal is to arrive at resolution for those teachers who have been rubberized. It certainly is not efficient to wait three to five years for due process. The cost escalates with every year of waiting, as the mediation cost remains constant (or increases with inflation). A wholesale clean-up process, while costly, would deal with the backlog and placing an appropriate number of mediators on contract would deal with the ongoing need.

    But that, I am guessing, is not really where the problem lies. The current situation exists because there are a number of teachers perceived to be inadequate or undesirable for whom there is inadequate documentation of their inadequacy. Teachers for whom you, me and the lamppost would all agree, teaching is not a good fit. But we don’t have any documentation because, short of “buggering the bursar,” as Michael Caine’s character put it in Educating Rita, we give everyone a good evaluation. It’s easier than putting the time and effort into structuring a mix of the subjectivity of learned professional and the objectivity of results.

    As Mike points out, the folks convicted of cocaine possession are not (or ought not be) the problem. We already have the means to yank the licenses of convicted felons. If they remain on the payroll, shame–that one’s too easy to fix. I don’t think even the union would dispute the fact that someone without a license does not have a right to a classroom, or a salary.

    My suspicion is that the rubber room is full of other undesireables–troublesome folks who just don’t “get it” with regard to relationships with students, parents or colleagues, or folks whose content grasp is shaky, or those content to just “phone it in” with regard to their work. In the absence of ongoing and meaningful forms of evaluation, these drones continue year after year until an opportunity presents to down-size them or someone wins the gotcha game and can make a case for firing. Not only is this bad for the teachers (and the students thereof) in the rubber rooms, it is bad across the whole spectrum of educators. From the newbies who desperately need a firm hand to see that the develop sound teaching practices, to those who are merely tired and in a rut. Evaluation ought not be seen as the way to get rid of bad teachers, although in the worst cases it enables that through universal documentation systems, but as a key to continuous improvement. How many of those tired teachers in the rubber room might have been recoverable ten or fifteen years ago? How many might justifiably been let go ten or fifteen years ago if push had come to shove?

    Solid evaluation systems allow for push to come to shove, if responsibly implemented. Meandering blindly and them bemoaning the inability to get rid of the worst cases is neither responsible nor efficient. Ongoing means of evaluation ought to be regarded as needed forms of “due process.”

  28. Margo/Mom,

    The problem in NYS is that it is almost impossible to fire a teacher for incompetence, no matter how well documented. Insubordination is a different matter.

    Here’s how a typical situation goes down. A teacher is documented over the course of several years, with time-intensive classroom evaluations done periodically, along with time-intensive counseling/training sessions to help the teacher improve. If the teacher doesn’t improve, then you are looking at a time-intensive expensive process to actually go to a 2030a hearing. If by some miracle the hearing officer agrees that firing is appropriate, the teacher can challenge the outcome, first up the internal administrative chain to the State Superintendent, and then to a regular court.

    In almost every case, someone eventually decides that the “punishment” of firing is too harsh and downgrades the firing to a suspension and/or fine. Meanwhile, the teacher continues to receive his/her salary throughout the proceedings.

    It is no wonder that administrators and districts decide that alternatives, including the rubber room, are simply a “cheaper” way to go, as long as the incompetent teacher is kept away from the classroom.

    The same reasoning applies to incompetent administrators, too. Tenure simply makes it too hard to get rid of the dead wood without a lot of effort, which oftentimes doesn’t work anyways.

  29. Quoth Mike:

    “Rags, I never said it would settle it. Try not to be such an obvious moron.”

    No, Mike, I said that was good enough for me. Not you.

    I might ask, why would you make such a silly response? But I’m on to you, “Mike”; I know that you’re really Hugh Laurie, pretending to be a complete ass (just like on not-Oprah) so that you can show how ridiculous it is to defend the drunks etc. who end up in the Rubber Rooms.

    Brilliant, “Mike”.

  30. Rags, I made the response you deserved. If you were not attempting some idiotic version of sarcasm, then your response made no sense at all. If you were, you’re an ass, and worthy only of contempt.

  31. Richard Aubrey says:

    Seems that the teachers who’ve been rubberized are not there for being in the bottom quintile of subjective evaluations.
    They’re there for more overt deficiencies, the kind which are more easily documented.
    Most school districts do have a good deal of trouble firing a lousy teacher. It takes a lot time. One admin in our area said that, in terms of time and legal bills, firing a teacher costs the equivalent of $250k. And we’re in an area of suburban systems in the midwest.

  32. Mike and Ragnarok, please cool it.

    Thank you.

  33. Certainly the New York City public school system is outrageous. There are a lot of reasons why these laws are in place, however. One is simply that the city cannot get enough warm bodies into the classrooms to teach the children there. While people complain and complain, very few step up and try to make a difference.

    The fact of the matter is that New York City has over a million students. Last year I taught about one hundred of them. If I’d had it my way I would have taught far fewer so that I could give students who receive absolutely no attention at home a lot more positive attention at school. Instead my instructional day broke down to about two minutes per child.

    The union and the state have been trying to improve education for a very long time. With that effort has come a lot of legislation that, while well-intentioned, is now bunk and needs to be cleaned up. While I don’t believe in private education for all, the school system needs to reflect our societal structure better than it does. That is to say education should be a blend of capitalism and socialism, as is the United States. Right now public education is purely a social program. Because of that it is difficult to hold teachers AND students AND parents accountable, when all three must be.

    Accountability does scare a lot of teachers in the city because it is an incredibly difficult place in which to teach. If held to the most rigorous standards of academic achievement, many (perhaps most) teachers would not pass. I certainly wouldn’t. Unfortunately the fault is not only a single teachers, but all teachers before that given teacher, the parents and the community.

    There are certainly teachers that need to go, and it should be easier to get rid of them. Another problem comes with incompetent principals. Again, there are 1,500 schools in NYC. It’s a big system. I’ve met an incredible amount of teachers who point to bad administrators as the weak link in a school, and I’m prone to believe them because I know they are good teachers. Unfortunately their records don’t show it because of those administrators. Who is held accountable then? How many systems need to be put into place to keep those people accountable? What will the problems be with those systems?

    Perhaps the point is that there are not enough good people to go around in a system like this one. It’s a rough place to work and teach and most people don’t enjoy working with for little pay, little respect and a lot of headaches. Perhaps when the populace of this city and this country begin to take public education seriously again teacher quality will improve. Until the day when public teachers are no longer bad-mouthed as a rule and are instead heralded as professionals with the most important job around (and are trained properly to fill those roles), these issues are not going away.

  34. Well before I left the DC area 10 years ago, I read that the cost of firing a teacher in the leafy suburban districts averaged $600,000 and several years. Hence the dance of the lemons; just keep moving the problems around the district. It also explains decisions like keeping a 4th-grade teacher senile enough not to know the names in her class; cheaper and easier just to let her work another couple of years to get max retirement.

  35. Mike in Texas,

    I can’t say that there is a good way to measure teacher performance. In fact, most professions have this problem of how to measure and reward performance. We’ve all heard the stories of someone getting promoted because he/she was on a visible project even if that person is incompetent. Its a hard process to get right but if you don’t try, you won’t ever succeed.

    I agree that there are many variables to making teacher performance measurement work. There are also a lot of variables to sending someone to the moon. Yet we sent someone to the moon but we haven’t found ways to control the teaching variables. I find the whole topic interesting. As a practitioner of statistical controls, I think that a PhD dissertation could easily be done to come up with a method to monitor the “quality” of a teacher’s output over the course of a schoolyear.

    A side benefit of having a real measure of a teacher’s quality of output would be the ability to measure whether new teaching stratagems work or don’t work. I think that feedback is lacking, too.