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Physics Teacher David Roemer Sued the NYC BOE For Wrongful Termination in State and Federal Courts and Lost

But anyone who reads his story and all of his legal documents and exhibits can learn alot about due process and Constitutional law, and how the NYC BOE destroys lives and careers without probable cause. Thank you, David for your documentation!


David Roemer
345 Webster Ave., Apt. 4-O
Brooklyn, New York 11230
October 10, 2006

New York State Commission on Judicial Conduct
Attn: Lee Kiklier

Departmental Disciplinary Committee
Supreme Court, Appellate Division
First Judicial Department
Attn: Sherry K. Cohen, Re: Docket No. 2006.1784

Dear Lee and Sherry:

Thank you both for your letters dated August 1 and September 6, 2006. Last week the Supreme Court of the United States denied my petition for a writ of certiorari to The United States Court of Appeals to the Second Circuit to review its irrational decision to dismiss without a trial my lawsuit against New York City Department of Education (“DOE”) for wrongful discharge.

The litigation began in November 1996 when I requested a hearing pursuant to New York Education Law § 3020-a of disciplinary charges filed against me by my supervisors. The story of what happened falls naturally into three parts.

Learner-centered Instruction
I began working as a physics teacher for the DOE at Midwood High School in Brooklyn, New York, in 1984. All of the teachers there used a highly-structured method of teaching that allowed a minimum of active student participation. In 1990, I was excessed and transferred to Erasmus Hall High School where I taught general science.

At the new school, I developed a different approach to teaching. Every day I gave students a handout that explained the science concepts for the day’s lesson. The handout also included questions, problems, and activities that students worked on in class. This method gave students multiple ways of learning the material. They could learn by listening to my presentation, by reading the explanation, by doing the activities, and by having one-on-one conversations with me or their classmates. It increased their responsibility for learning and it enabled students to learn at their own pace. I was inspired to adopt this method from the many workshops and seminars I attended.

In September 1994, I transferred to Edward R. Murrow High School, which was an academically strong school like Midwood High School. I used the method of teaching I developed for teaching general science to teach physics.

Students reacted negatively to my teaching and there were many complaints. Since I was presenting the material the same way I was presenting it at Midwood High School, where I was considered a satisfactory teacher, I gave no credence to the idea that I was not a good teacher. My theory is that the students were dissatisfied because I was making demands upon them in the classroom. Physics can be hard, and the students preferred listening to a teacher do physics problems than doing the problems themselves.

My supervisors in observation reports said that there was an unacceptable lack of learning in my classroom. If there was anything unfair or untrue in these reports I could have changed the objectionable statements by filing a grievance through my union, the United Federation of Teachers (“UFT”). However, I could not grieve the unsatisfactory ratings because they were deemed to be my supervisors’ opinions.

My theory is that my supervisors were prejudiced in favor of highly-structured teacher-dominated lessons and did not understand how little learning takes place in such lessons. Whether they would have rated my lessons as unsatisfactory if there were no complaints from students and parents, I do not know.

While I was getting unsatisfactory ratings, I ran into a supervisor whose workshops on teaching I participated in. I told him that his ideas about how to teach were getting me into trouble. Sizing the situation up in two seconds, he said, “You can’t always do what you want. Principals don’t like it and parents don’t like it.” He knew what was happening because it is an old and familiar story in New York City public high schools.

In the ordinary course of events, I would have either resigned from the DOE or requested a transfer to a school where I would teach general science. I had the option of attempting to improve my teaching by reverting to my former methods. However, I wanted to help students learn, not waste their time. I believe I could have been successful at a school where I had the support of the administration, but finding such a school would be difficult.

Conciliation Agreement
I did not resign or request a transfer because the DOE agreed to conciliate the method that should be used to teach physics and a conciliator was assigned. My supervisors, however, did not conciliate in good faith. In May 1995, I filed a grievance through the UFT against my supervisors. I also made it clear that my teaching would not change in September 1995. Instead of settling the dispute before the new school year, my supervisors gave me a teaching program and then filed disciplinary charges against me under New York Education Law § 3020-a. In a settlement, I agreed to be suspended without pay for two months and to give up my civil service appointment to Edward R. Murrow High School by transferring to another school.

Having to pay a penalty was unfair because my behavior was above reproach. By not resigning and by filing a grievance I was protecting the DOE’s interest in the method of teaching I developed from those more concerned with keeping the status quo than improving instruction. According to New York Education Law, only the members of an educational board can terminate a tenured teacher. The boards can do this only upon a written specification of charges and only for just cause. The charges my supervisors conspired to have filed against me were fraudulent because they covered up my grievance and the agreement to conciliate. The members of the board thought they were voting on a typical case of teacher incompetence.

DOE Failed to Implement the Settlement
The DOE did not implement the settlement, which was negotiated by my attorney and the DOE attorneys who filed the charges in the first place. The DOE may have done this because of animus against me for exercising my right to free speech. I was a member of the Science Committee of the UFT an outspoken critic of the DOE’s policies concerning discipline in schools and the science curriculum. I also addressed the members of the board on the day they voted publicly to ratify their private vote to terminate me. In my three-minute address, I described my method of teaching and compared it with the method of teaching advocated by my supervisors.

The hearing officer, under whose supervision the settlement was negotiated, proceeded with the hearing. Two more panel members, essentially volunteers with backgrounds in education, attended the hearings to make a panel of three. In June 1998, after seven days of hearings, the panel terminated me in a split decision. The minority panel member recommended that I be transferred to another school with no other penalty.

In the majority report, the hearing officer endeavored to explain why I was not suspended for a certain period of time and given a second chance, the usual penalty for incompetent teachers. Hearing officers terminate teachers for incompetence only in egregious cases. The reason for this is that tenured teachers are permanently assigned to a school. The only way a school can get rid of teachers it doesn’t want is to file disciplinary charges against them or put pressure on them to request a transfer.

I don’t think the hearing officer understood that the disagreement between me and my supervisors was only about teaching physics. There was no disagreement about teaching general science. Since there are about 50 times more general science classes than physics classes, I should have been returned to the classroom.

To summarize, my supervisors acted illegally in filing fraudulent charges against me, the DOE acted maliciously in not implementing the settlement, and the hearing officer acted mistakenly in terminating me.

Litigation is State and Federal Courts
I sued the DOE twice in the supreme court of New York State and once in the United States District Court for the Eastern District of New York for damages and to be reinstated. In these lawsuits, the New York City Law Department represented the DOE and perpetrated upon the state and federal courts the same fraud my supervisors perpetrated upon the DOE. My petition to the Supreme Court of the United States tells this sorry tale and is at http://www.dkroemer.com/pet.html.

See all of the litigation in this case

Conclusion
I’ll cooperate with any investigation the New York State Commission on Judicial Conduct or the Departmental Disciplinary Committee decides to undertake in this matter.

Very truly yours,

David Roemer

David Roemer's request to have the NYC Law Department Removed as Counsel
New York Education Law

Letter to the NY TIMES, September 9, 1994 (that may have started David's termination process - ED)
Change in Science Curriculum Hurts Students
To the Editor:

"The Science Upgrade Proves Steep" (editorial, Sept. 1) mentions "budget cuts, inadequate materials and pessimism among principals and teachers" as being a threat to the Board of Education's new program to improve New York City's instruction in science and mathematics.

Another obstacle is the Chancellor's decision to get rid of ninth-grade science and to make students take biology in the ninth grade. Physical science covers one-third of the science syllabus for middle and junior high schools in New York State, and is a necessary prerequisite for understanding biology.

This course also contains most of what high school students need to know about chemistry and physics to be successful in college.

Regents-level courses in chemistry and physics cover many topics that are too esoteric to be properly learned in high school. Chancellor Ramon C. Cortines should have supported the plan published by Chancellor Joseph A. Fernandez in April 1993 called "Science Is for All Children."

DAVID K. ROEMER Brooklyn, Sept. 2, 1994 The writer is a United Federation of Teachers science committee member.

September 1, 1994
The Science Upgrade Proves Steep, NY TIMES

In May, New York City's Schools Chancellor, Ramon Cortines, announced an ambitious plan to upgrade the science and math requirements for high school graduation. Now the plan is threatened by budget cuts, inadequate materials and pessimism among principals and teachers. Despite hurdles, Mr. Cortines must keep pushing forward -- for the sake of students and the city.

One of the legacies of former Chancellor Joseph Fernandez was a requirement that city high school students take three years of math and, beginning in 1995, three years of science. That requirement, however, was diminished by allowing it to be fulfilled with "non-academic" courses like consumer math, which was basically applied arithmetic.

Mr. Cortines is now trying to give the requirement real meaning. Starting this school year, all students must take college preparatory math and science courses like algebra and trigonometry or biology and chemistry. These courses, involving equations and problem-solving, will help college-bound students develop critical thinking and analytical skills. They will also help all graduates compete in an increasingly demanding job market.

But barely two weeks before classes start, there is considerable doubt that the school system can meet the challenge it has set for itself. The city's budget woes may force the Board of Education to absorb $443 million in cuts. That will certainly undermine the board's ability to supply students with textbooks and science equipment.

Worse yet, fewer than half of the nearly 4,000 math and science teachers have taken summer retraining courses to help them guide their students. The students themselves are, in many cases, unprepared for the more demanding work, in the opinion of many teachers and supervisors. Even a smoothly functioning program would cause difficulties; the increased emphasis on math and science may mean less time and resources for literature and the arts.

These are legitimate concerns that need to be dealt with. But they should not prevent the plan from going forward, even if it has to be phased in more slowly. It could take years for every school to have state-of-the-art science labs or for every entering high school student to be prepared for college preparatory courses.

But students often rise -- or fall -- to the level of expectations set for them. That was made dramatically clear in Brooklyn, where high schools raised their math requirements in 1991. Since then, the number of students in those schools taking algebra more than doubled and the number passing the state Regents Examination in algebra increased by 68 percent. Joyce Coppin, the high school superintendent in Brooklyn who instituted the new standard, said, "Kids were being denied the opportunity to take courses they could indeed pass."

The Brooklyn example is worthy of emulation throughout the school system. Weak standards cheat both the students and the city that depends on their talents.

NYC Rubber Room News: Heroes and Heroines
NYC Rubber Room Report
Betsy Combier and Polo Colon Speak at the NYC BOE on November 27, 2006

UFT Asserts It May Sue City
Discipline of Teachers in 'Rubber Rooms' Angers Weingarten

By ELIZABETH GREEN, Staff Reporter of the Sun, NYSUN
October 15, 2007

On an issue that is testing President Randi Weingarten's public détente with the city, a new group within the United Federation of Teachers is arguing that the union take a tough stance on the treatment of teachers who have been disciplined.The group, which has dubbed itself the Teacher Reassignment Center SWAT Team, has been compiling pages of documentation on the so-called rubber rooms where teachers accused of charges ranging from incompetence to sexual assault are held as they await a hearing. More than 700 teachers now sit in rubber rooms, where they receive full pay but cannot enter a classroom, a Department of Education spokeswoman, Melody Meyer, said.Ms. Weingarten said yesterday she hopes the investigation will end with a deal between the union and the city, and not in the courtroom. The result, she said, will hinge on how the Department of Education responds to new guidelines she plans to send in a letter next week. "If we make a proposal and the Board of Education says, ‘No, forget about it,' then we have a problem," Ms. Weingarten said. She called the issue a "test case" for her new cooperative stance with city officials.

A lawsuit is one route if cooperation fails, the head of the investigative group, Betsy Combier, said. The centers hold teachers accused of misconduct ranging from criminal charges to incompetent teaching. Tenured teachers cannot simply be fired or pushed to leave their jobs because the UFT contract requires that they first receive a hearing. A panel of arbitrators then decides whether the teacher will be fired, fined, or allowed back in the classroom with no discipline. Just 11 rooms hold the 700-plus teachers whose cases have not yet been resolved. The backlog has left some teachers on the city payroll for as long as two years before a decision is reached. In the meantime, teachers in the rooms pass the time by watching television, reading books, and writing.A complaint the UFT sent to a deputy chancellor at the Department of Education, Kathleen Grimm, recently noted the crowded rooms' poor conditions, including inadequate toilet facilities and electrical violations such as exposed wiring.Ms. Combier said her conversations with about 70 teachers so far suggest that a majority in the rubber rooms are also being denied due process rights — that is, they have been taken out of the classroom and placed in a center for as long as two years without any information as to why. "It's a public relations nightmare for the Board of Education," Ms. Combier said. "They will never live this down. I won't let them."

A Department of Education spokesman, David Cantor, said cooperation is a possibility. "We'll work with the UFT whenever we can," he said. "But don't be mistaken. The teachers in the rubber rooms have been accused of serious misconduct and crimes. We will not keep them with kids in schools simply because their contract says they must continue to be paid."He said there are a few cases in which the city does not tell teachers why they are charged as a way of protecting the investigations against them. He said "virtually all" teachers know why they are in rubber rooms.

Ms. Weingarten's promise to ramp up pressure on the issue of rubber rooms comes as she is facing more pressure to act from inside her union and beyond. Factions have formed within the union to fight on behalf of teachers in rubber rooms, making suggestions ranging from hiring more staff to defend teachers to issuing subpoenas of state agencies on their behalf. One group, the Teacher Advocacy Group, plans to picket the union's Lower Manhattan headquarters Wednesday following a delegate assembly meeting, a retired teacher who is advising the group, Norman Scott, said. The group will carry signs charging that the union has "dropped the ball" on protecting teachers.An independent filmmaker has also added to the fire with a documentary called "The Rubber Room," which several teachers said has generated interest from such high-profile outlets as Comedy Central's "The Daily Show."Some in the union ridiculed Ms. Weingarten's push for compromise, saying it will not resolve what they described as the UFT's failure to provide teachers in rubber rooms with strong legal representation. "They need people that have some kind of understanding and background in employment investigations. They have nothing," a teacher who was placed in a rubber room and who is also a lawyer, Jeffrey Kaufman, said.
Ms. Weingarten's new team includes Ms. Combier, who said she has previous paralegal experience, and two journalists at the union's newspaper*

Class Dismissed