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Wednesday, May 9, 2012

The Same Difference:Los Angeles' Skelly Hearings and NYC 3020-a Arbitration

Lenny Isenberg

An Attorney's Observations of LAUSD's Rubber Rooms by Ron Lapekas, esq. (Observaciones de un abogado de habitaciones de goma LAUSD por Ron Lapekas, esq.)

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,, 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.

LA Progressive
Dick Price and Sharon Kyle
Dick and Sharon
Dick and Sharon are a pair of citizen journalists and information activists who were fed up with
mainstream media. Rather than just kvetch about the media, they decided to try to become the media. So, together they founded the LA Progressive. Dick is the editor and Sharon is the publisher and webmaster, handling all technical aspects of the site.
This site was launched in March 2008, with Dick and Sharon doing most of the writing. Today, a host of gifted writers contribute to the LA Progressive's daily offering which typically amounts to about 45 articles a week. Dick and Sharon continue to write for as well as edit and publish the LA Progressive and distribute its daily e-news each morning.

o Scott Coe Riverside, California
Excellent Video Interview about Professor Coe

Assistant Professor of English at Riverside Community College and former high school English teacher. She is the author of Teacher at Point Blank and has been a teacher of English and literature in California since 1991. Her writing on intersections of gender, violence, and education has appeared in the Los Angeles Times as well as literary venues including Hotel Amerika, Fourth Genre, River Teeth, Ninth Letter, Memoir(and), Bitter Oleander, and Green Mountains Review. Her essay, "Recovering Teacher," won the NCTE 2009 Donald Murray Prize, and other selections of her work have received a Pushcart Special Mention as well as Notable listings in Best American Essays 2009 and 2010. As an independent researcher, Jo authored and published the most extensive study to-date of Adams v. LAUSD, a nearly 10-year legal case of student-on-teacher sexual harassment, in (Re)Interpretations: The Shapes of Justice in Women's Experience (Cambridge Scholars Press). Jo values the aesthetic, political, and socially transformative powers of literary narrative--especially to dispel unhealthy silences and witness cultural blindspots. She works currently as an assistant professor of English at Riverside Community College in SoCal, and her book, Teacher at Point Blank (Aunt Lute 2010), has been selected as a Great Read for Fall 2010 by Ms. Magazine. Punk rock? Yes. Hockey games? Yes. Coffee? Always black. Find Jo on the web at and on Twitter @joscottcoe.

Betsy Combier New York, New York
Betsy Combier's blog a jewel that chronicles the corruption in NYC's Dept of Educations (DOE)  . She has accomplished a wonderful piece of journalism, and created one of the rare places where corrupt educational governance is chronicled and revealed

Professor Samuel Culbert Los Angeles, California

is a professor at the UCLA Andersen School of Business who also teaches in the Education Department's Principals' Leadership Institute. Check out the following 3 minutes on ABC News

Stuart Goldurs Los Angeles, Califonia
Don't send LAUSD Librarians to the Inquisition, send the downtown bureaucrats
Tests, What Are They Good For? Absolutely Nothing!

LAUSD students to attend school on contaminated land, again!Some schools teach only to the tests, so how are the students being prepared for the next grade and for life?
New LAUSD superintendent adds six-figure positions to management team

Has been a teacher in the Los Angeles Unified School District for 30 years. He is greatly aware of the district waste, large bureaucracy, and other major issues of the time. He started his blog with the sole purpose of informing the world about the truths of education in LAUSD. E-mail him at:
LAUSD has selected a new Superintendent of Schools

Karen Horwitz Chicago, Illinois
Former award winning teacher who co-founded NAPTA, National Association for the Prevention of Teacher Abuse, and wrote the book White Chalk Crime: The REAL Reason Schools Fail to expose how teacher harassment and terrorization maintains a system of deeply hidden corruption. Disposing of dedicated teachers forms the core of the White Chalk Criminal's agenda since dedication and white collar crime do not mix. Given that all agree that good teachers are essential to good teaching, a system that cannot tolerate good teachers is worthless. This is what we have in place. With Bernie Madoff-like leaders - he was as much about investing as our school leaders are about educating - anointed with unlimited power, including the ability to fill the airwaves with propaganda, education is no longer about education. It is about money and power for those who play a very corrupt game and with an agenda of privatizing schools so their power will increase. (Privatization may have merits. NAPTA does not take a position on that. But privatizing a system that is rotten to its core - where quality teaching cannot survive, where a cover up of pretense that they do not know this despite so many of us reporting these truths prevails - documents that those advocating privatization cannot be trusted! It shows they want our schools for their own interests, not the children, nor the community.)  NAPTA welcomes parents, teachers, students, citizens or anyone who understands that without a real system of education, we no longer have a democracy. Membership is free. Go to:  or Become educated about what is going on. 

Jerry Mintz Director
Alternative Education Resource Organization (AERO)
417 Roslyn Rd., Roslyn Hts., NY  11577
For those of you who cannot wait for corrupt public education to be turned around, AERO offers an excellent source to get connected with viable alternatives right now.
800-769-4171 (domestic)
516-621-2195 (international)

Susan Ohanian Charlotte, Vermont
She is a longtime public school teacher who, after 20 years, became staff writer for a teacher magazine and then went freelance. I've maintained a website of activism for nearly 9 years--ever since the passage of NCLB. People can subscribe to the website and then they get updates about new content. I answer all the mail I get through the website and with the answer, people have my e-mail.  I also try to stir things up on Twitter, though I find this medium frustrating. I have a Facebook page--just so people can find me. I don't initiate anything on it, The website keeps me busy.
Susan Lee Schwartz Suffern, New York
Susan studied literacy education, English literature, and fine arts and holds a BA ('63) and MS ('65) from Brooklyn College, and has the equivalent of two master's degrees, earned in graduate studies of literacy, arts and education. She taught literacy skills and art, for four decades in NYC in elementary and secondary school.  In 1998 she won the New York State English Council (NYSEC) Educator of Excellence Award  for her successful teacher practice, studied by Harvard  and the LRDC at the University of Pittsburgh for the New Standards research. At the end of her research, her unique curriculum was selected by the LRDC to be used in their national staff development seminars for school superintendents. She was among six teachers -- from among the thousands across the nation-- observed during the research project, and her teaching practice met all the  principles of learning. In the nineties, she rose to prominence in national educational circles, while teaching at a new magnet school, East Side Middle School. The reading scores of her seventh grade students were at the top of the city, and on the first ELA, which two thirds of city students failed, her former students (then in the eight grade) were TENTH IN THE STATE.
 She writes often about what she learned about the genuine standards for learning, in an attempt to begin a national conversation about the authentic standards, so that there can be genuine reform. Her experience that ended her fine career in the NYC Public Schools has led her to write about the process that removed the top educators, silencing the voices of the classroom practitioners who would not accept anti-learning policies. Her essay here on Perdaily,  is one that describes this process. Read more as she talks about education, literacy  and learning on her site, from the perspective of the experienced teacher-practitioner of pedagogy. She is the voice of dedicated and talented classroom teachers who know why the schools are failing.
Her website is: 

Joel Shatzky: Brooklyn, New York
Professor of English Emeritus--SUNY, College at Cortland (1968-2005)
Adjunct instructor-Kingsborough CC (CUNY) 2006--   )
Regular contributor to the Huffington Post:
Author of "The Thinking Crisis" with Ellen Hill (Authors Choice Press: New York, 2001)
Numerous articles on education in Jewish Currents.
Script-writer for three YouTube satires on educational "reform."
 "The Lessons":
"Numbers Lie":
"The Charter Starters":
Here's Joel's latest post about the low percentage of "college ready" high school graduates.

"I know first hand the financial, personal, emotional and physical damage that can result when school administrators, the Montana Education Association and the National Education Association put their own interests above the students, teachers and the taxpayers of the State of Montana My files contain mountains of paperwork including depositions, declarations of truth, notarized documents and exhibits resulting from an arduous legal process that finally ended when the Havre (Montana) School District settled two lawsuits - a Federal suit and one filed in State District Court. These documents also include a letter from a union representative stating, " This is nothing more than a witch hunt." Yet the union continued to allow the school administration to harass, bully and bring harm to me.
These two lawsuits resulted from a single incident that, had it been handled differently and under the light of public scrutiny, would not have snowballed into awards of more than $200,000 worth of damages. Funds that eventually came from the taxpayers' pockets. Ironically, as a taxpayer in Hill County, my family and I are helping to pay for the damages awarded to me. This covered the attorneys' fees. The settlement did not include my attorney fees, however the district, insurance and taxpayers paid the defendants attorney bills, which exceeded mine. The settlement was made on March 2, 2006."

Lois Weiner Jersey City, New Jersey
Professor, Elementary and Secondary Education
New Jersey City University
2039 Kennedy Blvd.
Jersey City, New Jersey 07305
Democracy Now
Impact of urban school characteristics on teachers' classroom practice
How race, class, and gender mediate academic achievement
Teachers' work and the school as a workplace. Effects of changes in global political economy on teaching, teachers, and schools


For years the Los Angeles Unified School District (LAUSD) has been running roughshod over teachers, who they have succeeded in removing from their livelihood as professional tenured teachers as if they had no rights under collective bargaining or to due process of law. With the Miramonte Child Abuse Scandal, matter have only gotten worst as the removal of teachers without honest cause has reached a dizzying pace. Today in Courtroom #9 at the Office of Administrative Hearings at 320 W. 6th Street in Downtown Los Angeles just maybe the first step was taken by Attorney Ronald Lapekas to finally hold LAUSD responsible to the rule of law - even for teachers.

Over the last few years as public education budgets have been drastically cut, those in power at LAUSD and their masters have targeted more and more innocent teachers for removal from their jobs based on false charges, which teachers have found difficult, if not impossible to fight once they have been put on unpaid administrative leave with no help forthcoming from their do-nothing union UTLA. What motivates the District are the huge deficits that they are trying to cut by getting rid of teachers at the top of the salary scale, are about to vest in lifetime health benefits, or those who question LAUSD's long-failed education policies that have shown no signs of success or changing.

In order to remove as many costly teachers as possible, LAUSD has developed a streamlined process for removing these teachers that has not followed the well established legal requirements for dismissing a teacher nor has it given them even basic due process of law in the removal process:

1. All tenured teachers that LAUSD seeks to remove are entitled to a Skelly hearing where the teacher had a legal right to know the charges, evidence, and witnesses against them. Although LAUSD has called what they do a Skelly hearing, none of the aforementioned rights have been afforded the teacher in this pro forma proceeding where the conclusion to recommend dismissal was a foregone conclusion before this meeting ever took place.

2. Once the "Skelly" has been given, the Education Code Section 44939 and 44944 require that either the teacher be dismissed on the basis of a "verified complaint" or by allowing the teacher to defend themselves before the LAUSD Board- neither takes place. The head of LAUSD Human Resources Vivian Ekchian signs a letter telling the teacher that they are dismissed, but in no way is this letter "verified," because Ms. Ekchian is not signing this letter under penalty of perjury, which is what a verified complaint is nor does she have any actual information or belief in the validity of the charges against the teacher she is signing the dismissal letter for. Furthermore, the LAUSD Board rubber stamps the dismissal without ever giving the teacher an opportunity to defend themselves. During last month's closed LAUSD Board session, when the Board got rid of 10 teachers in 39 minutes, it is worth noting that they also had a significant amount of other business that they handled in addition to rubber stamping / "robo" signing the 10 teacher dismissals. Is this due process of law?

3. And finally, in the illegally abridged process of removing 853 teachers from their jobs last year, LAUSD administrators had no problem removing any exculpatory evidence from the case they were fabricating against the teachers that would not just resign. One administrator actually made the comment that evidence that either supported the teacher or showed that they had done nothing wrong "was not admissible, since it did not support LAUSD's case for removing the teacher- talk about a kafkaesque reality.

Attorney Lapekas argued that what LAUSD by these egregious and purposeful failures systematically engaged in over time was not only a violation of teacher's right to procedural due process, but that they were also such a serious substantive violation of due process that the OAH should dismiss all charges against the teacher in this case with prejudice to stop LAUSD from merely refiling the charges. 

Judge Erlinda Shrenger of the OAH took the case under advisement and stated that she will have a decision by this Friday, May 11th. As to whether the case will be allowed to continue or whether LAUSD will be ordered to drop all charges against the teacher is anyone's guess. Given that such a precedent would have a strong bearing on all similar cases against teachers, one can be sure that however Judge Shrenger decides either Attorney Lapekas or LAUSD's outside counsel Mr. Morris will appeal the decision by writ to a higher court.

Whatever happens, it is important that LAUSD is finally being confronted and not given unbridled discretion over the lives of hundreds of teachers. As teachers and others see that LAUSD can be held accountable, maybe some other munchkins will come out and talk about what they know.

If you or someone you know has been targeted and are in the process of being dismissed and need legal defense, get in touch: