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Nine New York Congressional members are demanding a full investigation by New York City Department of Education (NYC DOE) Chancellor David Banks into secret “problem codes” assigned to the records of teachers who declined to take the COVID-19 vaccination.

The NYC DOE assigned the problem codes — the same ones assigned to people accused of molesting, raping or injuring a child — to educators placed on unpaid leave for declining to be vaccinated for COVID-19, according to an internal email sent in 2022.

The letter was written in response to a call in March by Children’s Health Defense (CHD) for a bipartisan congressional investigation into the problem codes.

The city’s “unwillingness to be transparent about how and when these codes are used and under what circumstances requires a thorough and complete investigation,” said Mary Holland, then-president of CHD and lead author of a letter sent to congressional leadership and the New York delegation.

Commenting on the lawmakers’ call for an investigation, Kim Mack Rosenberg, CHD’s acting general counsel, told The Defender:

“Children’s Health Defense appreciates that these members of Congress, as CHD requested, are demanding answers from the New York City Department of Education on its flagging the files of educators seeking to protect their religious freedoms and healthcare decisions with ‘problem codes.’

“These disciplinary codes were intended for use in connection with grievous allegations of misconduct, not for teachers lawfully attempting to protect their rights.

“The DOE’s actions surrounding its COVID-19 mandates and almost universal refusal to accept genuine and sincere religious exemptions have damaged thousands of dedicated educators and harmed not only these teachers but New York City students.”

A New York City Hall spokesperson claimed external organizations can’t see the codes.

However, in their letter to Banks, released last week, legislators wrote: “Despite recent claims by the Department, these Problem Codes have had serious external consequences for current and former employees.”

The letter’s lead author, Rep. Nicholas Langworthy (R-NY-23), said:

“City Hall’s false and misleading statements regarding the existence, nature, utilization, and impact of Problem Codes on teachers’ livelihoods cannot be accepted at face value. The City has been less than forthcoming about the Problem Codes issued to educators.”

The lawmakers asked Banks to respond to questions about the purpose and use of the codes, how they were determined, their consequences, whether this information was sent to law enforcement agencies and how the city plans to rectify the situation.

Michael Kane, national grassroots organizer for CHD and founder of Teachers For Choice, explained the significance of the codes to The Defender:

“These codes were a Scarlet Letter. We know people who were denied employment. And some who were told, look, we want to hire you but we can’t, you’re flagged. And this was even outside of New York City.”

Problem codes ‘don’t square’ with existing law

The existence of the problem codes was first revealed in an affidavit filed in federal court in February.

In an appeals hearing for three cases challenging the now-rescinded vaccine mandate for city employees, plaintiffs’ attorney John Bursch informed the court about the codes.

The allegations were based on a June 2022 affidavit written by Betsy Combier, paralegal and president of the due process advocacy group Advocatz, detailing how the NYC DOE flagged unvaccinated teachers without evidence of misconduct and sent their information, including fingerprints “to the national databases at both the Federal Bureau of Investigation and [New York’s] State Division of Criminal Justice Services” The Defender reported.

According to CHD’s March letter to the New York delegation, Combier is involved in 11 cases before the Public Employment Relations Bureau (PERB) where she is requesting the problem codes be removed from teachers’ files.

According to a PERB ruling from June 2022, a problem code can be placed in an educator’s personnel file only based on a substantiated report of discipline or misconduct and the educator must be informed of that discipline or misconduct.

“Placing a Problem Code on unvaccinated educators secretly, with no notice, does not square with this ruling,” Holland wrote in the letter, adding:

“It is nearly impossible to successfully have a Problem Code removed, even with legal assistance, and most educators are unaware such a code has been placed on their personnel records until they are denied employment elsewhere.”

Questions about the city’s protocols and procedures for sending educators’ fingerprints and codes to law enforcement, as alleged in the affidavit, also remain unclear. Lawmakers demanded answers about how, when and why this happens.

Lawsuits over religious exemption still pending in federal court

New York City implemented the COVID-19 vaccine mandate for teachers and staff in August 2021. Employees were allowed to seek a religious exemption, but the city initially denied all of them and granted only 10% of the requests on appeal, The Defender reported.

In November 2021, New York’s 2nd U.S. Circuit Court of Appeals ruled most NYC DOE employees who were denied a religious exemption and placed on unpaid leave must be allowed to reapply for an exemption under a new process.

The November ruling extended the court’s earlier decision that the 15 plaintiffs who sued former New York Mayor Bill de Blasio (Kane v. de Blasio) and the City of New York (Keil v. The City of New York) must be allowed to reapply for a religious exemption to vaccination.

In February, some of those same teachers filed a new lawsuit against the city — this time claiming the state constitution was violated on the basis of freedom of religion rights.

The lawsuit followed New York Mayor Eric Adams’ Feb. 6 announcement that the vaccines would no longer be mandatory for city employees, beginning Feb. 10.

Under the new policy, employees fired for refusing the COVID-19 vaccine are not automatically reinstated and do not qualify for back pay.

New Yorkers for Religious Liberty filed a similar case.

Adams’ announcement came on the eve of a scheduled Feb. 7 hearing in the 2nd Circuit on the consolidated multiple lawsuits — including two sponsored by CHD — challenging the city’s near-blanket refusal of religious exemption requests to the mandate.

The lawsuits are still awaiting a decision.