An Attorney’s Observations of LAUSD’s Rubber Rooms
I am an attorney who was a whistleblower in the 70’s. I learned the hard way that it is extremely difficult to find a lawyer who is both competent and willing to represent someone crazy enough to report wrongdoing. So, I filed my first case – my own – while I was in law school. After winning the writ proceeding, I won my first appeal during my first year of practice. All in all, it took me 12 years to clear my name. As a result, a substantial part of my practice for the past several decades has been employment law.
A few weeks ago I came into contact with Lenny Isenberg, a teacher who also was a whistleblower. He had been given a notice of dismissal and was preparing to defend himself because the attorney who originally represented him had demanded more than $25,000 to try the case — in addition to $15,000 that UTLA also promised him. (I asked UTLA to pay me $15,000 to represent Mr. Isenberg all the way to the Supreme Court of California. As of this writing, I have not even had the courtesy of a reply from UTLA.)
I reviewed the “evidence” and concluded that the charges were insubstantial, at best, and completely fabricated, at worst. I informed the Office of Administrative Hearings (OAH) and opposing counsel that I was coming to Los Angeles to try the case that was supposed to start September 12th. However, because I amended the Notice of Defense to allege the affirmative defenses of whistleblowing and the constitutional right to speak to the press, the hearing has been continued to some unknown date in the future.
With some free time on my hands, I started talking to other teachers who had been given dismissal notices. I noticed that there were common patterns in all their cases. All had taught for many years without any kind of disciplinary action taken against them. All were older. And all had taken a position of some kind that attracted the attention, if not the wrath, of an LAUSD administrator. Another very weird allegation in many of the dismissals was that the teachers were accused of violating Education Code section 44939.
Apparently, LAUSD routinely alleges violations of section 44939 because it allows the District to avoid the grievance procedure that is available for all other alleged misconduct. I could understand a single case with these allegations but why were so many people calling with almost identical allegations? Did somebody put something in the water three years ago that turned previously excellent to outstanding teachers into incompetent, insubordinate, misfits?
In case after case, there was an uncomfortable commonality of allegations. Most of the teachers I have talked with had never been accused of any kind of misconduct before. Most had exemplary records. But they also included a number of competent union chapter chairs – you know, the kind who stood up for their members.
More than half of the people I have talked to told me that administrators sought out students and prevailed on them to provide negative comments about their teachers. Allegations of “unprofessional conduct”, insubordination, persistent violations of rules and school laws, and “willful refusal” are generously sprinkled throughout the accusations. Many of the allegations regarding classroom management are the kind that most teachers consider to be trivial and easily remedied; now these incidents are deemed “evident unfitness for service.” I also noted that the allegations were virtually identical regardless of grade level or school site.
Mr. Isenberg has commented on his website, perdaily.com, about the abuses being heaped on the teachers unfortunate enough to be served with an accusation that includes violation of section 44939. These teachers are removed from their classrooms, often in front of their students in an unceremonious and sadistic manner. Because they are still on salary, LAUSD has established a number of “campuses” where these teachers are required to report. After reporting, the teachers are given no work to do and are forced to bide their time under the watchful eyes of a number of administrators who, apparently, have nothing to do but watch the teachers.
When I read Mr. Isenberg’s blog about the rubber rooms, I thought the District’s process was, at worst, simply stupid. This morning, I had an opportunity to visit one of these teachers at his temporary assignment.
Teachers call these temporary assignments “rubber rooms”, apparently due to the similarity to holding facilities at mental hospitals that have walls made of rubber to prevent patient self-injury. What I observed was appalling – and what I heard was even worse. Teachers are required to sit in separated cubicles that are more reminiscent of jail visiting facilities than of a school site. I also confirmed that the District has given them absolutely nothing to do – not even “busy work”. Having been required to work at an empty desk during my own whistleblowing experience, I know that being required to do nothing while being watched constantly is an extremely stressful and totally punitive procedure.
Some teachers have been assigned to a rubber room for more than two years. Ignoring the waste of resources this represents, the punitive nature of the rubber room means that people are being punished before they have been proved guilty. Unlike a criminal, they can’t post bond so they can escape the prison-like confines of the rubber room while the District takes its own sweet time to prepare the charges. But wait … taking time? What is happening to the witnesses and evidence during the months and years that these teachers are waiting for the other shoe to drop? Until LAUSD actually issues formal charges, the teachers (a) have no knowledge of exactly what allegations are being made against them – except for section 44939 – and (b) have no legal way to preserve evidence they may need for their defense. And this does not even begin to address the intentional infliction of severe mental distress that appears to be the true purpose of the rubber rooms. Assignment to a rubber room without being informed of the reason for the punishment is, in my opinion, a totally unconstitutional denial of due process. (I also believe that if a criminal were sentenced to a rubber room as a criminal sentence punishment the rubber room would violate the Eighth Amendment’s prohibition on cruel and unusual punishment.)
While there is a very high probability that at least one of the teachers in the rubber rooms should be dismissed, I believe there is an even greater probability that the majority of the rubber room teachers would be vindicated:
- IF they survive the rubber room with their sanity
- IF witnesses retain their memory
- IF evidence does not disappear or become tainted
- IF they have the financial resources to prepare a reasonable defense
- IF their union gives them the support they have paid for and are entitled to
- IF they get a full and fair hearing on the merits.
I thought I was going to come to California, try Mr. Isenberg’s case, and return to my retirement in Tennessee. But it appears that Mr. Isenberg’s case is just a snowflake on the tip of the iceberg that is LAUSD’s abusive treatment of its teachers. Therefore, I am discussing the re-opening of my law practice and returning to LA with my long suffering wife. Until then, I will continue to collect evidence and see what I can do to help the teachers who have been wrongfully accused and punitively abused.
Copyright 2011 LA Progressive