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Ending the rubber room backlog by December looks impossible

Mayor Bloomberg and UFT President Michael Mulgrew got a lot of applause when they vowed to shut down the city’s infamous “rubber rooms” by December. But that might be an impossible goal.

The trouble hinges on the fact that the city has not ended the practice of granting a trial to all teachers accused of incompetence or misconduct. It has simply decided to speed up those trials, which take place in a lower Manhattan office building across from Tweed Courthouse, presided over by paid attorneys called arbitrators who act as judge and jury.

To speed up the trials, the city has promised to nearly double the number of arbitrators starting in September, and also to increase the number of days they work on teacher cases each month to seven from five. By doing this, the city and the union claim, all of the nearly 650 teachers still waiting for a verdict will get one by December.

But a GothamSchools analysis shows that, to meet this goal, the city will have to force arbitrators to cram multiple hearings into each working day — a rate that is now unprecedented.

Even this scenario requires the city to somehow use the summer months to clear all the cases of the nearly 300 teachers in this pool who have already received their charges and begun to go through hearings. That would leave the cases of 246 teachers who are still under investigation — 173 for misconduct and 83 for incompetence — to be dealt with between September and December.

But clearing that many teachers’ cases in that short a time frame would require arbitrators to increase their working pace dramatically, even with more arbitrators working more days per month. To move through all the misconduct cases, for instance, arbitrators assigned to those cases specially would have to convene an average of two and a half hearings per day.

The hearing officers who will hear the cases of teachers accused of incompetence will have a slightly lighter — but still large — load. To clear the backlog by December, each of those hearing officers would have to hear about two hearings a day.

And both of those estimates are assuming each teacher has only 10 hearings. Under the city and union’s deal, accused teachers will have between 10 and 14 hearings over a maximum of two months.

Right now, when arbitrators work for the Department of Education they usually address just one accused teacher’s case per day, sitting down with the teacher’s union-paid attorney, the city attorney, and any witnesses for as many as five hours and a lunch break. An arbitrator who has worked in the system for many years could only recall one time when he heard two hearings in a day.

There is also no enforcement system built in to the city-union agreement to make sure that arbitrators fit into the 10 to 14-hearing limit. Under the agreement, the city can grant extensions to arbitrators, though these are meant to be seen as “the exception and not the rule.”

City and union officials insist that they can clear the backlog by making the hearing process more efficient. “Some amount of work that has been done over years can be done in months,” Mayor Michael Bloomberg told reporters when he announced the plan last week.

What happens if the city and the union aren’t able to pack more hearings into each day? In that case, it would take nearly 10 months for the arbitrators to work through the misconduct outstanding cases and nearly nine months to clear the incompetence cases.

Shown the GothamSchools analysis, city officials said that at this point it’s “not possible to predict” the workload of the hearing officers in their effort to clear the backlog by December. “Between now and the end of the calendar year, some cases will conclude while others will be resolved quickly through mediation,” Department of Education spokeswoman Ann Forte said. “Later this summer, we expect we will have a better idea of the actual size of the backlog that we will need to address.”

A union spokesman also cautioned that the city might not bring formal charges against all of the teachers currently waiting in the rubber rooms, bringing the total case load down. Under the new plan, if the city does not charge a teacher currently assigned to the rooms within two months of the start of school, the teacher will return to his or her school.

“Both sides made a commitment to get it done by the end of the year,” union spokesman Dick Riley said.