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 in 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. All of the litigation is the case is at http://www.dkroemer.com/suit.html.

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