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| The mandate represents “a rational policy decision” on how to best protect kids from the virus, said judge. |
Associated Press, November 30, 2021
UPDATE: Early Friday evening, a federal appeals court granted a temporary injunction staying the enforcement of the mandate requiring all city public-school employees to be vaccinated against the coronavirus (COVID-19) by Monday.
The United States Court of Appeals for the Second Circuit said the injunction is in place only until a three-member panel of the court can review an appeal of a Brooklyn federal court judge’s ruling on Thursday, which upheld the mandate.
A group of teachers had filed a suit two weeks ago seeking to block the vaccine requirement. The teachers are appealing the ruling by Judge Brian M. Cogan.
The review, which is on an expedited basis, could possibly occur over the weekend.
“We’re confident our vaccine mandate will continue to be upheld once all the facts have been presented because that is the level of protection our students and staff deserve,” said a Department of Education (DOE) spokeswoman. “Our current vax-or-test mandate remains in effect and we’re seeking speedy resolution by the Circuit Court next week. Over 82 percent of DOE employees have been vaccinated and we continue to urge all employees to get their shot by September 27.”
The United States Court of Appeals for the Second Circuit said the injunction is in place only until a three-member panel of the court can review an appeal of a Brooklyn federal court judge’s ruling on Thursday, which upheld the mandate.
A group of teachers had filed a suit two weeks ago seeking to block the vaccine requirement. The teachers are appealing the ruling by Judge Brian M. Cogan.
The review, which is on an expedited basis, could possibly occur over the weekend.
“We’re confident our vaccine mandate will continue to be upheld once all the facts have been presented because that is the level of protection our students and staff deserve,” said a Department of Education (DOE) spokeswoman. “Our current vax-or-test mandate remains in effect and we’re seeking speedy resolution by the Circuit Court next week. Over 82 percent of DOE employees have been vaccinated and we continue to urge all employees to get their shot by September 27.”
Updated: Sep. 25, 2021, 8:43 a.m. | Published: Sep. 24, 2021, 2:24 p.m.STATEN ISLAND, N.Y. —
A federal judge has rejected a bid by hundreds of teachers to halt enforcement of the city’s controversial mandate which requires all public-school employees to be vaccinated against the coronavirus (COVID-19) by Monday or face losing their job.
Brooklyn federal court Judge Brian M. Cogan shot down the plaintiffs’ request for a preliminary injunction.
The judge said he wasn’t unsympathetic to the plaintiffs’ predicament, but the mandate is reasonable.
“In denying plaintiffs’ motion, this court is not impugning either the integrity or validity of the plaintiffs’ concerns,” wrote Cogan in a decision handed down Thursday. “No one will get the last laugh if it turns out that 10 or 20 years from now, plaintiffs’ fear of long-term deleterious effects from the vaccination proves to be well-founded. … However, the court cannot reasonably conclude that the (city’s) arguments in favor of vaccination were not made in good faith, or that they are irrational.
“Substantive due process, therefore, requires the court to afford deference to (the city’s) weighing of the competing concerns.”
The plaintiffs are challenging the ruling.
“My partner, Louis Gelormino, and myself respect the court’s decision but obviously disagree with it,” said Mark J. Fonte, a lawyer for the plaintiffs. “With the deadline looming, we are moving expeditiously to appeal this decision to the U.S. Court of Appeals and plan to file with the court today. We are cognizant of the anxiety of our clients and are hoping to prevail on appeal.”
Two weeks ago, the plaintiffs had filed the suit against the city, Department of Education (DOE), and officials seeking class-action status, along with injunctive relief and compensatory damages.
The vaccine mandate, they contend, is arbitrary and capricious and interferes with their right to pursue their chosen profession.
The suit also cited concerns about the potential long-term effects of a newly-developed vaccine for which long-term data is not available.
In addition, the plaintiffs maintain the mandate violates the Equal Protection Clause of the Fourteenth Amendment. Other municipal union employees may opt-out of the vaccine through weekly testing; however, public-school employees don’t have that recourse.
They can, however, apply for a religious or medical exemption.
The mandate requires every city DOE employee — including teachers, principals, custodians and central office staff — to receive at least one dose of the vaccine by Monday.
SEPARATE STATE COURT LAWSUIT
On Wednesday, a Manhattan state Supreme Court justice, responding to a separate lawsuit, lifted a temporary injunction which had blocked the enforcement of the mandate.
Cogan, likewise, denied a temporary injunction, although his ruling does not nullify the federal suit.
The decision allows the enforcement of the mandate, for now, until the suit itself is decided.
“Yet again, another court has cleared the way for a vaccine mandate at the DOE which is in the best interest of children and department employees,” said Nick Paolucci, director of public affairs and press secretary for the city Law Department. “The court has again recognized the authority of the Health Department to implement a mandate that is firmly grounded in science and the expertise of public health officials from across the nation.”
In his ruling, Cogan acknowledged the mandate may ultimately disqualify the plaintiffs from their jobs in city public schools.
However, it wouldn’t preclude them from working elsewhere, such as in private schools in the city or public schools outside the five boroughs.
“Plaintiffs are not being denied their fundamental right to pursue their profession,” he wrote.
Requiring workers to be inoculated by a vaccine approved by the federal Food and Drug Administration does not impinge on their rights, said the judge.
The mandate represents “a rational policy decision” on how to best protect kids during a global pandemic, Cogan said.
“Although plaintiffs argue that there are other proven means of preventing the spread of COVID-19 in schools, among them frequent testing and mask-wearing, it is not shocking for the city to conclude that vaccination is the best way to do so, particularly at a time when viral transmission rates are high,” wrote the judge.
In support, the city had cited the federal Centers for Disease Control and Prevention’s recommendation that teachers and staff be vaccinated “as soon as possible,” Cogan said.
RATIONAL BASIS
The judge also said there was a rational basis for the difference between the mandate requirements for public school employees and other city workers.
While allowing opt-out testing for other workers might be appropriate, the stiffer vaccine mandate for teachers and school employees is “not unreasonable,” said the judge.
School workers are in close contact indoors for “long hours” each day with children under age 12 who are not eligible to be vaccinated, he said.
Social distancing, mask-wearing and testing may be sufficient to protect other municipal workers, particularly since a number of them would be inoculated, said the judge.
Schools, however, are another story.
“It is not irrational to conclude that such measures would not adequately protect unvaccinated children in a school setting, especially as some of these children will have preexisting conditions that make them especially vulnerable,” wrote Cogan.
In addition, if the vaccine reduces the risk of infection, as the city contends, the mandate would minimize teacher and student absences due to contraction of the virus or quarantine, the judge said.
Brooklyn federal court Judge Brian M. Cogan shot down the plaintiffs’ request for a preliminary injunction.
The judge said he wasn’t unsympathetic to the plaintiffs’ predicament, but the mandate is reasonable.
“In denying plaintiffs’ motion, this court is not impugning either the integrity or validity of the plaintiffs’ concerns,” wrote Cogan in a decision handed down Thursday. “No one will get the last laugh if it turns out that 10 or 20 years from now, plaintiffs’ fear of long-term deleterious effects from the vaccination proves to be well-founded. … However, the court cannot reasonably conclude that the (city’s) arguments in favor of vaccination were not made in good faith, or that they are irrational.
“Substantive due process, therefore, requires the court to afford deference to (the city’s) weighing of the competing concerns.”
The plaintiffs are challenging the ruling.
“My partner, Louis Gelormino, and myself respect the court’s decision but obviously disagree with it,” said Mark J. Fonte, a lawyer for the plaintiffs. “With the deadline looming, we are moving expeditiously to appeal this decision to the U.S. Court of Appeals and plan to file with the court today. We are cognizant of the anxiety of our clients and are hoping to prevail on appeal.”
Two weeks ago, the plaintiffs had filed the suit against the city, Department of Education (DOE), and officials seeking class-action status, along with injunctive relief and compensatory damages.
The vaccine mandate, they contend, is arbitrary and capricious and interferes with their right to pursue their chosen profession.
The suit also cited concerns about the potential long-term effects of a newly-developed vaccine for which long-term data is not available.
In addition, the plaintiffs maintain the mandate violates the Equal Protection Clause of the Fourteenth Amendment. Other municipal union employees may opt-out of the vaccine through weekly testing; however, public-school employees don’t have that recourse.
They can, however, apply for a religious or medical exemption.
The mandate requires every city DOE employee — including teachers, principals, custodians and central office staff — to receive at least one dose of the vaccine by Monday.
SEPARATE STATE COURT LAWSUIT
On Wednesday, a Manhattan state Supreme Court justice, responding to a separate lawsuit, lifted a temporary injunction which had blocked the enforcement of the mandate.
Cogan, likewise, denied a temporary injunction, although his ruling does not nullify the federal suit.
The decision allows the enforcement of the mandate, for now, until the suit itself is decided.
“Yet again, another court has cleared the way for a vaccine mandate at the DOE which is in the best interest of children and department employees,” said Nick Paolucci, director of public affairs and press secretary for the city Law Department. “The court has again recognized the authority of the Health Department to implement a mandate that is firmly grounded in science and the expertise of public health officials from across the nation.”
In his ruling, Cogan acknowledged the mandate may ultimately disqualify the plaintiffs from their jobs in city public schools.
However, it wouldn’t preclude them from working elsewhere, such as in private schools in the city or public schools outside the five boroughs.
“Plaintiffs are not being denied their fundamental right to pursue their profession,” he wrote.
Requiring workers to be inoculated by a vaccine approved by the federal Food and Drug Administration does not impinge on their rights, said the judge.
The mandate represents “a rational policy decision” on how to best protect kids during a global pandemic, Cogan said.
“Although plaintiffs argue that there are other proven means of preventing the spread of COVID-19 in schools, among them frequent testing and mask-wearing, it is not shocking for the city to conclude that vaccination is the best way to do so, particularly at a time when viral transmission rates are high,” wrote the judge.
In support, the city had cited the federal Centers for Disease Control and Prevention’s recommendation that teachers and staff be vaccinated “as soon as possible,” Cogan said.
RATIONAL BASIS
The judge also said there was a rational basis for the difference between the mandate requirements for public school employees and other city workers.
While allowing opt-out testing for other workers might be appropriate, the stiffer vaccine mandate for teachers and school employees is “not unreasonable,” said the judge.
School workers are in close contact indoors for “long hours” each day with children under age 12 who are not eligible to be vaccinated, he said.
Social distancing, mask-wearing and testing may be sufficient to protect other municipal workers, particularly since a number of them would be inoculated, said the judge.
Schools, however, are another story.
“It is not irrational to conclude that such measures would not adequately protect unvaccinated children in a school setting, especially as some of these children will have preexisting conditions that make them especially vulnerable,” wrote Cogan.
In addition, if the vaccine reduces the risk of infection, as the city contends, the mandate would minimize teacher and student absences due to contraction of the virus or quarantine, the judge said.
