For well over two years now, Bronx gym teacher and coach Dan Smith has been sidelined in one of the Department of Education's infamous "rubber rooms," thanks to an allegation of sexual misconduct in March 2007. But while other teachers (over 600 hundred of them!) use their rubber room time to play Sudoku and nap, Smith has been hatching a plan to get out.

Yesterday Smith filed a federal lawsuit against the DOE for an unspecified amount of money and for the right to get out of the rubber room and go back to work. His lawyer claims it took a year before the DOE filed charges against him, and says Smith has been told "he won't have his hearings for another two years, so four or five years [in the rubber room]."

Smith and his lawyer contend the misconduct allegation was "trumped up" by administrators at Dodge High School to retaliate against Smith for speaking to the Daily News about unequal funding for the girls' sports teams. Last year Smith told the News, "My attorney said (the Dept. of Education) is going to ask for me to retire or resign, but I don't intend to do that. I'm not guilty of this charge, and this should have been deemed unfounded. The only reason it's not is because they have a hidden agenda and ulterior motives. ... I'm not making any deals. I want my name restored."

A female student claims Smith told her to sit on his lap during gym class, but Smith tells WABC, "I have something I normally I say and that's 'take a lap and sit on your spot.' Students are normally assigned floor spots, and she said, 'I have to sit on your lap.' I said, 'No. You heard what I said." Smith claims his constitutional rights are being violated by the rubber room banishment, and adds, "I can't understand why the taxpayers of this city are not outraged by what's going on. You can't get your day in court. You can't even be heard."