‘Watershed moment in the teachers’ fight’

Commenting on the judge’s decision, Sujata Gibson, attorney for the plaintiffs, told The Defender:

“We’ve been fighting for this since August of 2021 for these 10 people specifically. And we won and we won big for them. They were reinstated with back pay, with no break in service, and attorneys’ fees. That’s huge.

“The judge’s ruling yesterday, while not everything we wanted, is a precedent-setting victory, and a watershed moment in the teachers’ fight.”

Thousands of workers were subjected to the very same processes the judge ruled were “arbitrary and capricious,” and they could sue individually based on that precedent.

Gibson also said Wednesday’s ruling did not close the door on a possible class action:

“The court’s ruling on class certification still leaves the door open to future relief for thousands of teachers negatively affected by the vaccine requirement. We intend to file a motion of reconsideration on a narrower basis.

“Rather than waste public resources clogging the courts with so many individual lawsuits, legal action that will remedy these discriminatory policies for all impacted workers only makes sense.”

Michael Kane, one of the teachers whom the court ordered reinstated in his job said this was a big win for the plaintiffs and for CHD, but that he was disappointed they weren’t certified as a class.

Kane told The Defender:

“I am happy for the 10 of us that were reinstated, but deeply saddened that this verdict does not have an impact on the thousands who were discriminated against and treated as heretics. So it’s definitely a mixed blessing and mixed emotions right now for me.”

CHD President Mary Holland told The Defender she was “thrilled the 10 teachers were reinstated with back pay,” but:

“I am disappointed by Judge Porzio’s decision not to certify the 7,000 New York City teachers as a class. All of these teachers were made to participate in a patently bogus religious exemption process.

“The 2nd U.S. Circuit Court of Appeals has already opined that the process was unconstitutional. The reasons for a class — numerosity, commonality, typicality and adequacy — were present here. This is not the end of the story.”

Judge Porzio delivered his ruling on the afternoon before the first day of the 2024 school year for New York City public school students. That should mean that today the 10 teachers can return to their classrooms for the first time since October 2021, when they were initially placed on leave without pay.

But when Gibson contacted the school district to ask where the teachers should report for work, the district told her that none of the teachers should come to work.

That could signal that the city and DOE are planning an appeal, she said.

The ‘arbitrary and capricious’ denials

More than 100 spectators who were members of the potential class attended the Wednesday hearing. Unlike previous hearings for this case, when Judge Porzio had allowed the plaintiffs’ supporters into the courtroom, yesterday he sent them to a separate room to watch the proceedings on closed circuit television, Kane told The Defender.

Only the named plaintiffs and the attorneys were allowed into the courtroom.

Those educators had been grappling with the consequences of the mandate since August 2021, when New York City Mayor Bill De Blasio announced a COVID-19 vaccine mandate for DOE employees for the upcoming school year.

The city initially indicated it would not consider religious exemptions, despite its legal obligation to do so. After a local court issued a temporary restraining order against the mandate, the city agreed to adopt an accommodation policy.

The accommodation policy, however, discriminated against people based on their religious beliefs, according to Gibson, because it was explicit that religious accommodation requests must be denied to anyone who is not a member of a “recognized” and “established” religious organization whose leader is against vaccination, such as Christian Scientists.

DOE employees were required to submit requests for reasonable accommodations through an online portal by Sept. 20, 2021, and they were offered one day to appeal denied requests. Those who failed to request accommodation, or who were denied it, were placed on Leave Without Pay on Sept. 28, 2021.

DOE then used that policy as a basis to deny religious exemptions to Christians, Buddhists, Jews and others, saying that although it believed their religious objections were sincere, the beliefs did not meet the criteria for exemption.

The DOE denied exemptions to all but 162 of 7,000 petitioners, notifying them of their denial with the same auto-generated email.

By December 2021, the 2nd Circuit had already found — in a separate federal case on the matter, Kane v. de Blasio, filed by many of the same petitioners in federal court on Sept. 21, 2021 — that the religious accommodation as written was “blatantly unconstitutional.”

Instead of amending the policy, the city convened a “citywide panel” consisting of three members of the city’s law department, the Department of Citywide Administrative Services, and the Commission on Human Rights, respectively. It promised the panel would provide a “fresh consideration” of the exemption requests and to reinstate wrongfully terminated employees with back pay.

But that panel refused to even review over 6,000 of the petitions, and of the 600 it did review, it almost universally upheld the original decision and informed the workers their petitions were denied with the same auto-generated email informing them their petition “does not meet criteria” for accommodation.

The 10 petitioners granted relief Wednesday were eventually provided some reasoning behind the panel’s decision. Although the cases were meant to be considered individually, the reasoning for the denials, as summarized by Judge Porzio in the ruling, was remarkably consistent.

In some cases, the panel found that although their religious beliefs were sincere, they were not sufficient basis for exemption. In other cases, they found that religious beliefs were a sufficient basis for accommodation, but accommodating the teachers would place an “undue burden” on the city.

While the Kane v. de Blasio lawsuit, filed by unvaccinated New York City teachers challenging their firing on constitutional grounds, remained pending before the 2nd Circuit, plaintiffs were authorized to bring their statutory claims and seek certification as a class in New York State court after the district court declined to exercise jurisdiction over their state claims.

So some of those same teachers in February filed this lawsuit, DiCapua v. City of New York, against the city — this time alleging the defendants engaged in a continuing pattern of discriminatory conduct against the DOE workers in violation of the New York State Constitution, the New York State Human Rights Law, the New York City Human Rights Law and Article 78 of the New York Civil Practice Law and Rules.

In April, the plaintiffs filed a motion for class certification, citing that all members of the class were affected by the same errors of law and that “the autogenerated, vague, and conclusory denials” of religious exemptions were all “arbitrary and capricious.”

In July, Judge Porzio ruled against the city’s motion to dismiss in a hearing attended by more than 150 people supporting the plaintiffs.

On Aug. 14, he heard arguments from both sides, in a hearing attended by well over 300 people. He announced that he would render his decision on Sept. 6 regarding the class action certification and the Article 78 question.