The Special Needs Student, the Compassionate Teacher and the “Awww!” Factor (UPDATED)

Debra Fisher

Regular readers here are familiar with the “Ick Factor,” the common phenomenon where a situation that causes an emotional response of revulsion, disgust or fear is labelled unethical when there is nothing unethical about it. Many kinds of conduct are icky, but still on the right side of ethics, if only one can put aside the gag reflex. The reverse of the Ick Factor is the less common “Awww!” Factor, where particular conduct seems loving, caring and nice, but is in fact unethical in one or more respects. Such is the case of New York City special needs teacher Debra Fisher.

In October, Fisher was suspended when e-mails were discovered on the school computer system showing that she had been spending school time raising funds for a special project on behalf of Aaron Phillip, a thirteen year old special needs student who is an aspiring animator with his own blog. The project’s goal was to raise $15,000 for a nonprofit devoted to developing Aaron’s talent, an organization called “This Ability Not Disability” founded and administered by Fisher.

Awww!

The problem was that while her efforts on behalf of the student were supported by the school, Fisher, an occupational therapist at Public School 333 with nine years of service, did not have permission to perform them during school hours. Thus she was suspended for six weeks. Now she is suing the school system for back pay, telling reporters, “I’m just trying to fight for what I believe is right.”

If she believes she is right, then she shouldn’t be working at the school at all, because she is in fact dead wrong.

But awfully nice.

The operation of a non-profit organization to support the extra-curricular activities on one student in no way is a legitimate part of Fisher’s duties that the school should be paying for. Public opinion, which is a reliable sucker for the “Awww!” Factor and is in this case, naturally favors Fisher and opposes the school administrators, who are viewed as cheap meanies. The public is thinking with its hearts, not its brains.

The news media isn’t helping, again reliably, by slanting its coverage and misrepresenting the issues. For example, the Daily News begins its story this way:

“Debra Fisher, from Public School 333, was suspended in October after she made a fundraiser for a special needs student. She is now suing for about $5,000 in back pay and to have a disciplinary letter removed from her file.”

Deceitful: literally true, intentionally misleading. She was suspended “after” raising funds for Aaron’s non-profit, but not because she raised the funds. She was suspended because she used her work day for an activity unrelated to the official activities she was being paid to perform. Te fact that the non-related activity was generous, caring, and helped one of her students is completely irrelevant to the offense. I’m sure Fisher and her lawyer believes that they can win over a jury on emotion and sentimentality rather than fairness and reason, and they may be correct. Nevertheless, Fisher’s conduct was exemplary regarding Aaron but unethical in respect to her duties as a public school employee. She did not have permission to work on Aaron’s project during the school day, and deserved to be suspended.

Fisher and her lawyers are trying to make the case that the school misled her and is hypocritical, since it “supported” her efforts on behalf of the student. Of course it did, just as any school would support a teacher who was an Olympic athlete, or who was developing a cheap, new source of clean energy, or was a best-selling author of children’s books on her own time. But the fact that Aaron happens to be a student at the school doesn’t alter the fact that a project designed to support his special talents is no more a legitimate use of a teacher’s paid time than training a horse for the Kentucky Derby, lobbying for climate change legislation or protesting against police violence.

The indignant, pro-Fisher comments on the Daily News article are predictably devoid of valid ethical analysis and in the grip of an “Awww!” attack:

  • “In this Christian country you get arrested for feeding the homeless and get suspended from work for creating a special needs student’s fundraiser,” writes Mickey Mouse, who, to be fair, has an understandable bias in favor of budding animators. He is also using bad information, since he seems to be referring to this incident, where no one was “arrested for feeding the homeless” but the “Awww!” Factor also warped the reporting.
  • “I work at a law firm, I organize fundraising and community service activities while I am working here too. If spent all day doing that, it would not be a different story. We need to give back more because that is what life is about,” writes “Awww!” victim Heath Green.

Awww!  So it’s wrong to steal all your day’s compensation working on non-work matters, but stealing some of it is virtuous, eh, Heath? (See Rationalization #8. The Trivial Trap (Also known as “The Slippery Slope.”) It’s up to your employers whether they want to give back and how they want to do it: I’d fire you for making that choice for them.

  • “Her immediate bosses approved her activities. Besides, the bottom line is that she was helping her student which is also part of her job. Those who say that she should be doing this on her own time don’t get it. All teachers and people in her position put in many hours of their own time without compensation. That fact escapes most of you. Was she in it for her own financial gain? NO! So what is your problem with her helping a student who she gets paid to help?”

We should be grateful to commenter Art Schwartz for providing a veritable cornucopia of rationalizations and flawed arguments:

1. Her immediate bosses supported her activities but did not approve her doing them on school time.

2. Her job did not extend to “helping her student” in matters unrelated to his school work.

3. It’s irrelevant that “all teachers and people in her position put in many hours of their own time without compensation;” the issue is her putting in many compensated hours on a project that wasn’t part of her job. Is Art arguing that because Fisher has put in uncompensated hours teaching students, she has a right to make an adjustment and take compensation for non-work related activity? That’s Rationalization #17, Ethical Vigilantism. Is Art arguing that what Fisher did is ethical because such unethical conduct is engaged in by many teachers? Hello “Everybody does it.” Rationalization #1, the Granddaddy of them all!

4. It doesn’t matter that she wasn’t engaged in the unethical activity for her own gain. It’s still unethical. This rationalization—Art is a whiz at them, apparently–is #13. The Saint’s Excuse: “It’s for a good cause,” which is usually lurking when the “Awww!” Factor raises its cute little head.

5. Straw man: the teacher wasn’t “helping a student who she gets paid to help” do what she is paid to help him do. Is she paid to help him walk his dog? Is she paid to help him do the dishes? No, no, and she isn’t paid to create and run a non-profit organization for his benefit, either.

I’m certain that Debra Fisher is a compassionate, caring, lovely person, but her self-righteousness is misplaced, and her lawsuit, whether it is successful or not, stands for the proposition that as long as you have a worthy motive, you can make your employer pay for it. That’s wrong, and she’s not doing her students or their future employers  any favors by teaching them otherwise.

UPDATE (10/10/16): Fisher’s suspension was declared invalidly based on a flawed investigation, and she was reinstated with back pay. None of that affects the analysis above. None of the rationalizations and justifications for the charges against her involved their accuracy, just the argument that it was all for a good cause. Fisher herself pointed EA to the subsequent developments, and she seems to think I should have been following the case. Of the over 7000 topics covered here (so far), I’d estimate that at least a third have follow-up developments, months and years later, in some instances. When and if I learn of them and they are relevant to ethics, I may choose to write about them. Usually, I don’t. I especially don’t when the developments change nothing in the original post’s analysis. Today, as then, this post is a commentary on the mistaken attitude of many individuals examining a situation, using emotion rather than ethical analysis.

I’m grateful to Debra Fisher for alerting me to what transpired after the post, and congratulations  to her on her victory.

 

32 Comments

Filed under Childhood and children, Education, Journalism & Media, Law & Law Enforcement, Professions, Workplace

32 responses to “The Special Needs Student, the Compassionate Teacher and the “Awww!” Factor (UPDATED)

  1. Penn

    Not quite an “ick” factor, but the borders to the left and right of the last posts are hard on the eyes — and almost as distracting as the time you played color-me-red (or green?) with the page. Unless, that is, you are hiding politically Left clues on the left side and Ri . . . but, no, you wouldn’t do that.

    Fisher is going to get sooooo much money donated, she will be able to pay her lawyer, make up the salary deficit (in the unlikely case she loses), quit her job, and take Aaron to Disneyland.

    • If you have a screen that registers it, the background is a Charlie Hebdo cartoon montage. It shows up on one of my devices as you describe it too. All Charlie’s cartoons are garish, don’t you think?

  2. Chris Marschner

    Jack: You are absolutely correct that employees should not use company time or equipment to further their own interests or activities without express approval.

    The question I have in my mind is does the employer suspend all others to such a degree for engaging in non-work activities on the company dime. Your analysis suggests that it does not matter whether it is one minute, one hour, or much more time is appropriated by the employee it is all unethical.

    I don’t have all the facts in this case so I do not know how much time is expressly authorized by the employer for personal activities such as taking a call from a spouse, calling in a lunch order before the appointed hour and other routine activities that take place all the time.

    From a management perspective, I am wondering why they were reviewing her emails. Were they looking for something or were all employee emails reviewed for improper activity. To me, a six week suspension seems very harsh for this action if she is expected to remain an employee at all. I would be interested in knowing what type of disciplinary escalation policy is in place.

    Yes it is unethical to steal time and other resources from your employer but it is equally unethical to manage a system in which strict adherence to rules is not universally applied to such a degree that employees don’t know the boundaries of expressly approved behavior.

    • The ABA has instructed lawyer to make sure clients know that they have no expectation of privacy regarding e-mails sent on the employer’s ISP. Beth knows a lot about this, I bet. Employers are increasingly checking employee e-mails, as they have the right to do, to find this kind of thing and worse.

      The punishment seems harsh to me as well, not knowing how many e-mails were involved, and though there was an element of deception, if the school had no idea she was doing it on school time.

      • Chris Marschner

        There is no doubt that there is no expectation of privacy of electronic communications by employees using business equipment.

        There must be more to this than what is reported here to justify such a punishment. The graphic on the therapist’s t-shirt might reflect her general sentiments regarding feeling hamstrung by less innovative administrators.

        Having worked in a post secondary school that expressly stated that it was a student centered learning organization, I know that there many fine professionals would undoubtedly cross that ethical threshold of using a schools computers or time to assist a single student that needed help. That is what is perceived to be a relevant job responsibility by faculty and staff even though it is not expressly stated in the job description.

        In this case the woman was an occupational therapist whose role is to assist clients become self-sufficient. Every client has an IPP or Individual Program Plan prepared by a interdisciplinary team of professionals and the family to help the client achieve specific outcomes. The client’s case worker is responsible for locating and coordinating every available resource to assist the client. Occupational therapy is but one component of that plan. So, one must ask, what occupational training resources were provided to the therapist by the employer? Developing specific resources to assist a specific client could be considered part of the job if it will lead to the desired IPP outcomes. That argument is not based on emotion but on a sound claim of doing whatever is legal and morally ethical to advance the employer’s interests which I assume is a positive outcome for this student. If that is not in the employer’s interest then who is deceiving whom.

        The other day you remarked that clever use of the rules was not unethical but ingenious until made illegal. Perhaps that same axiom applies here.

        • Fundraising for a private purpose on school time cannot be considered therapy. No way, no how. I take the point in theory, but this teacher stretches it to the breaking point.

          • Chris Marschner

            I neither condone nor condemn the act because I don’t know all the facts. How do we justify school administrators using school personnel to raise funds for the United Way or scholarship drives? Is it ethical for employers to use community service as a condition of continued employment, promotion or tenure? In both cases, the administrator is shown as the face of the contribution and not the individual. For some, it is perceived as a form of extortion.

            With that said, whether fundraising for a client is an ethical violation I will leave that up to the AOTA ethics interpretations which can be found here: http://www.aota.org/-/media/Corporate/Files/AboutAOTA/OfficialDocs/Ethics/Code%20and%20Ethics%20Standards%202010.pdf

            After reading that code I found myriad conflicts that can result from the need to maintain a fiduciary responsibility to the client and the employer.

            • How do we justify school administrators using school personnel to raise funds for the United Way or scholarship drives? Is it ethical for employers to use community service as a condition of continued employment, promotion or tenure?

              I don’t, and it is extortion, as I have written more than once. What does that have to do with this? “They are unethical too” is a basic rationalization.

            • I really don’t see what you’re getting at here, Chris. She worked for the school. No matter how vague or unclear the rules might have been, her conduct so obviously exceeded ethical bounds that it doesn’t matter. There is no way that setting up a separate non-profit for the benefit of a single student’s out-of-school interests and raising money for such an organization can be called a legitimate task within her job description that she is authorized to spend school time and resources pursuing, and she should know that regardless of what the rules may say–unless they specifically authorized just such conduct. It’s a personal project that happens to involve a student, and no different from running and raising money for any other organization, worthy or unworthy.

      • Beth

        Some employers routinely have IT search for incriminating or inappropriate materials. But Chris is right in the sense that the typical case is where the employer is looking for a reason to fire or reprimand the employee. “Everybody does it” is not a defense though.

        Moreover, emails routinely have to be collected for various litigation purposes. So, even if it is completely unrelated to the litigation at hand, outside counsel frequently will point out to employers which employees are working on novels, surfing porn, etc. Then disciplinary action (usually termination) will happen.

  3. Steve-O-in-NJ

    As someone who worked labor law for four years, I think six weeks is a bit harsh, depending on her record, but unfortunately everything else is spot on. Very refreshing, Jack, it’s been a while since there was a blog post in the “compassion bullying” or “misplaced charitable impulse” or similar vein and it’s good to create a counterweight to the “ick factor” as a handy stock response to charity advocates who get a little (or a lot) full of themselves.

  4. She is a occupational therapy counselor, so I could see her helping him work on the project as part of her job. If she was working on it herself, that is actually contrary to her job. I’m sure she is supposed to be helping other students with disabilities. If she is spending all her time on this one, she is cheating all the others.

    This is comparable to embezzling money from the Special Olympics to pay for expensive therapy and training for one of the competitors.

  5. joed68

    I’m not even seeing the “aww” factor here. This is theft, misappropriation of her employers money. There’s absolutely nothing charitable about it. This seems about as winnable as that grand jurors case, if common sense is a factor. Then again, a new “ends justify the means” age seems to be upon us.

  6. I agree with your general point — if she’s stealing time to work on her private pet projects, it doesn’t matter that it’s for an attractive cause — but I think your point about Ethical Vigilantism and Everybody Does It won’t apply if it turns out the school has a de facto flex-time policy, or if there’s a de facto policy allowing employees to conduct small amounts of personal business during work hours using company facilities. Some employers make this explicit, but a lot of employers leave it up to line managers, who often let employees do something reasonable. I can’t tell what actually happened here, but given many school systems’ love for things like idiotic zero tolerance rules…I’m totally willing to believe this is arbitrary enforcement.

    • Except that you are just speculating. Yes, most businesses allow a modicum of personal activity during work hours. If she was running a business, albeit a non-profit one, out her school office, however, that crosses the line.

      Also note that I didn’t invoke those rationalizations, the commenter did, directly suggesting that “everybody does it” as a justification and also raising the defense that since she must be doing uncompensated job-related work, she is “owed” some non-job related compensation.

  7. It would seem the Awww Factor is only making headway BECAUSE the media fails to report this in a factual light…

  8. A lot of different things going on in this case. From what I read it was an investigator from the Department of Education, not the school administrators, who suspended her for 30 days after she and another teacher filed various complaints to the Department of Education against each other. It was during this investigation that the DOE investigator found emails asking for donations etc. and reasoned that she was using the young man to make some money for herself without taking into account that this was a school wide endeavor. Also, it was reported in the same investigation that the Department of Education found a conflict of interest on her part due to a job she worked on the week ends in which she was working with the museum in an effort to provide more accomodations for students with disabilities. Not sure how that is a conflict of interest. In fact, I don’t think you can take any of this as the truth because so much of this information is confidential and only leads one to speculate. Plus, I got the information from various newspapers which is sometimes the last place you want to go to find the truth.

    • 1. An investigator can’t suspend a teacher, unless the investigator is an administrator.
      2. Interesting but irrelevant to the post. The question is, was her on-the-job conduct legitimately part of her duties? Can it be excused because it was kind and compassionate, as those supporting her are claiming? No.
      3. The other questions, like the alleged conflict of interest and her second job? Not part of the “Awww!”

      • Yes, the original premise that her conduct and actions, if not part of her duties, even if they are kind and compassionate, cannot be excused.

        1. True, but an investigator’s report can put the heat on an administrator to suspend a teacher.

        2. Some stories suggest that the whole school including the administration were involved with this endeavor during school hours. So unless she was specifically told not to work on this project during school hours and she saw the administration also working on the project, should she still be held accountable? These days I can see how a whole school of educators and administrators might not realize this is inappropriate so they just made this one teacher the sacrificial lamb. Par for the course in education.

        3. Yes, when going for the Awww factor, there must be one issue so not to confuse the readers and there must always be the very good guy and the very, very bad guy.

  9. Does this also not raise questions of “Appearance of Impropriety”? If a teacher is expending incredible amounts of time devoted to one student… Let’s say she’s even doing completely outside the classroom on her own time, then couldn’t that quietly imply she’s spending more attention on that student in the classroom? To the detriment of needed attention by other students?

    I understand that the mitigating factors here are-
    1) teachers are given leeway to determine which children need extra attention because Johnny Whizbrain is practically an autodidact where as Kyle Schlubneck can barely figure out Velcro. And only the personal teacher can evaluate those calls.
    2) even moreso with a special education teacher.

    But still is this an issue at all?

  10. “Does this also not raise questions of “Appearance of Impropriety”?

    Yes, I would think so. There’s something to be said for going the extra mile for a student in need. But setting up a fundraising account and soliciting funds for your student? This goes beyond the scope, in my opinion, of what teachers should be doing in the classroom. It’s just opening a door to all types of problems…as we have already seen.

  11. I just checked out the website “this ability not disability”. Is this the website and fundraising venue she helped the student with? Wasn’t this supposed to be about the student? This is obviously HER website. It would be absolutely inappropriate for her to be working on this during school time.

  12. I see it that she’s stealing the time and energy that she spent on the fundraising from the other students. Whether it’s ten, thirty or fifty, how many other students would have benefited from the extra attention? She’s playing favorites, with clear evidence in time and funds that she was failing every other student whom she was responsible for teaching. She should hang her head in shame that she has epicly failed them.

    If she really wanted to help, she should be willing to give up her own time in evenings and weekends. But she was greedy and wanted to be a white knight without giving up watching American Idol. If she wants for become a special needs fundraiser, I’m sure there’s groups who would love her, but they don’t come with the bennies that a teacher gets.

    She got caught, and now should suck it up. Too bad the families whose students were being neglected would get shamed if they spoke up. I’d love them to slap her with a negligence suit, after all, she’s proud of not teaching the rest of her class.

  13. Debra Fisher

    My punishment was rescinded by Schools Chancellor Carmen Fariña, as I was found innocent of all charges. Jim Dwyer of The NY Times reported this, as did the NY Post and the NY Daily News. The system for investigating NYC DOE employees has forever changed because of my case. You never followed up with this news. That’s the real “ick” factor!

    • Thanks for the update, Debra, and congratulations. I just updated the article.

      I usually only learn of new developments on topics here if I happen upon them or someone alerts me, as you did. My commentaries are based on what I know at the time I write them. This isn’t a news source. My analysis of the facts I base a post on doesn’t change because the situation may change.

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