The Rubber Room—The Department of Education’s Black Hole

by Benjamin Zibit, Freelance journalist
New York City, August 2006

The Pentagon has Guantanamo Bay. New York City’s Department of Education has 25 Chapel Street. And 333 Seventh Avenue, 1 Fordham Plaza, 175 Ocean Terrace, Queens Plaza North, and a host of other smaller locales.

25 Chapel Street, a tall, brown and tan brick building behind basketball courts on Tillary Street in downtown Brooklyn, is actually a new home among the Department of Education’s detention centers for teachers and administrators under investigation and pulled from their schools. The common name for these centers, known well to almost every teacher on the Department of Education’s payroll, is the ‘rubber room.’ On the tenth floor of this behemoth of a building near the Manhattan Bridge sit over one hundred teachers, principals and support staff, ordered out of their schools by the Division of Human Resources for infractions ranging from minor arrests to serious charges of sexual abuse, dereliction of duty, or inappropriate behavior in the classroom or school.

The rubber room at 25 Chapel Street measures approximately 120 feet by 30 feet. There are tables, with chairs grouped around them. There are mattresses to lie on. There is a portable stove and a microwave. There is air conditioning, although at times, according to D., one former resident of the rubber room, the lights and air conditioning have been known to go out and hours can pass before the electrical problem is fixed. Sometimes arguments break out. Sometimes rubber room residents go AWOL—they just disappear.

The rubber room is not a prison, not in the ordinary sense. It is not windowless. There is an administrator assigned to monitor it. He usually sits by the door, reminding people to clock in each morning.

Teachers and staff assigned there by the Department of Education’s Bureau of Inquiry and Investigations arrive by 8:20 am, and clock out at the end of their day, 2:50pm, unless starting time at the school they once worked at had them working on ‘late schedule.’ The day at the typical rubber room ends before 4:00pm. Summer vacation spells relief for the sojourners there. Rubber room residents get summer vacation, too, just as regular teachers do.

But there is one difference: the average stay in a rubber room for a re-assigned teacher or principal is from one to two years. People have been there for much longer. Cases generally take approximately a year to resolve. At the end of summer vacation, rubber room residents and staff report back to a Regional Operations Center, where each rubber room may be found. At the Staten Island rubber room, according to an administrator there, there were 117 people in attendance in mid-June. Keith Kalb, press spokesman for the Department of Education, when reached on July 17, 2006, quoted a figure of about 570 reassigned staff in all the DOE’s rubber rooms. Carol Gerstl, a spokeswoman for Randi Weingarten, UFT President, confirmed this number. However, Ms. Gerstl admitted that 570, a number that “sounds right,” depends on DOE data, rather than an independent union assessment. S., who arrived at the rubber room at 25 Chapel Street in February 2006, told this reporter in late June that he believed there were over 800 DOE staff in rubber rooms around the city and personally attested to the fact that five or six new attendees come in to 25 Chapel Street every week.

The UFT, the city teachers’ union, which has been publicly silent on the existence of these rubber rooms for years, is becoming restive and uncomfortable about them. Ms. Weingarten, in a June email, commented that the union is trying to take action on the rubber room situation but added that some members do not want “to vindicate their rights.”

In a corporate environment, where a complicated union contract might be non-existent, rubber rooms would not exist. CEOs and Human Resource Divisions would almost certainly be free to terminate employees accused of malfeasance or more serious crimes quickly and without much fanfare. But the UFT contract with the Department of Education protects employees accused of violations of the Department’s code of behavior. If letters in an employee’s file do not serve to discipline him, then the DOE must send the accused staff member to a rubber room, where, according to the union contract, he is “reassigned to administrative duties, pending the outcome of (an) investigation.”

The union contract with the DOE, put in place on November 16, 2000 and amended by a new contract vote last November, also defines the limits of rubber room confinement. Any ‘reassigned’ employee must be restored to service in his school no more than six months after his removal, unless formal ‘3020-a’ charges have been lodged against him. Section 3020-a of the New York State Education Law permits a school board to bring state charges against tenured employees, with an eye to dismissing teachers and other staff who would otherwise be protected by tenure rules. A three-person jury hears each case, and since September 1994, when the New York State legislature revamped the state’s tenure law, the average time between being charged and receiving a formal hearing dropped to about 192 days. This is just over six months. The majority of detainees in the rubber room stay twice as long. 3020-a charges are not usually filed, as this is an expensive legal procedure, and, as a result, teachers simply languish in the rubber rooms. Many wait just for a DOE hearing to determine whether or not their case should proceed to a higher state level.

Rather than file state charges, the DOE relies on pressure and attrition to weed out employees it does not want. Many residents of DOE rubber rooms are there because of hearsay evidence against them. Apparently, it doesn’t take much to end up at 25 Chapel Street. A student may report an incident involving a suspect teacher to a school’s principal and the next thing the teacher knows, he is reassigned. Teachers do not necessarily have the right to see the specific evidence backing up charges against them. Nor are they usually given the opportunity to confront their accusers in the open, a right guaranteed all criminal defendants by the 6th Amendment to the Constitution.

Since charges brought by an employer against an employee are administrative in nature, unless serious enough to warrant arrest, the Department of Ed may have some wiggle room here, avoiding the Constitutional requirement that any accused person be confronted by the witnesses against him. Until the June 29, 2006 Hamdan vs. Rumsfeld Supreme Court ruling, the Pentagon used a similar argument in its treatment of terror suspects at Guantanamo Bay. Guantanamo detainees were treated as extra-judicial, administrative detainees. Now, true military courts martial and adherence to the Geneva Convention must be the rule for terrorists held incommunicado in American military detention facilities.

Union contracts seem to fall into a gray area, somewhere between true Bill of Rights protections and labor law. Until late August 2006, there was no complete version of the published contract between the UFT and the Department of Education; both sides simply put out written pronouncements changing the existing contract, with the old contract still technically in force. Now, in early September, a new official contract copy, sent to union members by the UFT, is in the hands of most teachers. The current contract expires on October 12, 2007.

In 2006 DOE teachers face increased chances of disciplinary action, from U-ratings to threats of dismissal. Principals have been known to conclude that allegations against a teacher are true, simply because a teacher fails to respond directly to the charges against him without a lawyer present. This is the fate S. suffered. The accused does have the right to union (UFT) representation, but that doesn’t always stop DOE authorities from writing formal file letters (which can adversely affect a teacher’s rating.) “The reason they put people in the rubber room,” S. says, “is that they’re hoping you’ll quit before it comes to a formal hearing.”

A trip to the rubber room may start with a written accusation against a teacher, a counselor, even a principal, but the story rarely ends there. Once a Department of Education employee is placed on the “Ineligible/Inquiry List,” he descends into the labyrinth of the DOE’s administr ative bureaucracy. Lawrence Becker, the Senior Deputy Executive Director for Human Resources at the DOE, whose office is at 65 Court Street in downtown Brooklyn, sends the accused notification that he has been placed on the Ineligible/Inquiry List. If a serious charge is involved, the Arrest Notification Unit, also at 65 Court, comes into the picture. Finally, the personnel manager at the nearest Regional Operations Center formally instructs the accused where to report. Then the long wait begins.

Sometimes, investigators from the Office of Special Investigations show up at a rubber room or even at a school to interview the accused. Investigators are often former police officers, now working for the DOE. An officer from the Special Commissioner of Investigation’s office interviewed S. According to S., the investigator never read him his rights, never said, “You have the right to remain silent.” “If you know your rights,” S. added, “you can refuse to talk. But the investigators never mention that you might have a representative present.” The investigators work in teams of two. One watches while the other interrogates. There is no tape recorder present and the interrogating officer simply takes notes. S. never received a transcript of these notes.

A teacher, guidance counselor or principal can expect to face long hours of tedium each day at the rubber room. Some reassigned staff don’t mind. While their cases slowly wind through the bureaucratic maze, the DOE pays them and they do not have to face the stress of interacting with students. In some cases, however, tenure in the rubber room resembles a theater of the absurd. One teacher has been in the rubber room awaiting final disposition of her case for two years. Despite many lawsuits against the Department of Education, she is still there. Another man, from the Caribbean basin, has been in rubber rooms for six years. He was formerly a guidance counselor and had a dispute with his principal over his alleged failure to report a case of suspected child abuse. A year or two after his reassignment, he had a DOE hearing and was apparently cleared of wrongdoing. Yet he is still in the rubber room. His physical appearance has deteriorated and no one wants to hire him. Still, contractual limits prevent him from being fired. In fact, according to S., who has spoken with him, this long-time resident of the rubber room doesn’t want to leave.

Keith Kalb, DOE spokesperson, expressed irritation at the seemingly intractable dilemma of the rubber room. “There is a $20 million cost for the rubber room. That’s money that could be spent educating kids,” Kalb said. Kalb also bristled at the description of rubber rooms as detention centers. Instead, he called them “reassignment rooms.” Kalb pointed out that even though the rubber rooms are closed for the summer, summer school staff can still be sent to them. Summer school teachers and other staff accused of misdeeds are fired from their summer jobs, may forfeit their pay (depending on the results of an investigation) and must report to Regional Operations Center rubber rooms in September. Since most summer school teachers are regularly appointed DOE staff during the school year, they may not report back to their assigned school and thus are lost in the system until their cases resolve themselves.

Because (as of June) there were—by its own count—almost 600 Department of Ed employees in rubber rooms, with more apparently coming in each week the schools are open, a new and disturbing trend has emerged. If the DOE would rather simply fire wayward employees and has the power of its state mandate to run the city schools by mayoral authority, then the Department of Education is using a disciplinary system it abhors to keep teachers in line, or out of the classroom. Threats of rubber room confinement or letters in an employee’s file have spread fear throughout the system. Since teachers cannot view accusatory statements made against them, they do not know when they may be summarily removed from the classroom. Students may have unwittingly become power brokers in the struggle between teachers and the DOE, with student safety the reason for removal of unwanted teachers from the classrooms. However, student safety is not necessarily enhanced if teachers work in an atmosphere of fear.

No education system or parent wants dangerous individuals around vulnerable children. But there is no way of knowing now where all the rubber room detentions will lead. The number of detainees in rubber rooms may level off, or it may increase in the coming months. It is hard to justify keeping nearly 600 employees in reassignment centers for months, if not years. DOE spokesperson Kalb claimed that due process rights of reassigned employees are not being violated. But if administrative and labor law continue to guide relations between the DOE and its employees, then civil rights law may end up in the back seat. In the meantime, S. is still waiting for his case to be settled. He would much rather be back in the classroom. But for now and perhaps for months into the future, S. will wait, like hundreds of other DOE employees, in limbo. And in 2006, that is a tough place to be.


Dr. Benjamin Zibit is a freelance reporter and former educator in the New York City Dept. of Ed. He taught for twenty four years in high schools and at CUNY and has a doctorate in the History of Science. Dr. Zibit has written several stories on topical issues in 2005-2006, including pieces on immigration, the bedbug epidemic in New York City, and on the international situation. Dr. Zibit knows several teachers who have been swept into the rubber room system at the DOE and wanted to write on their struggles and the conditions of their confinement. He continues to write on the current difficult situation and hopes the days of the rubber room are numbered.

Contact him at: bzibit@rcn.com