This week on September 11, attorneys presented oral arguments before New York State’s highest court, the Court of Appeals, in a combined judicial review of lower-court decisions involving eight New York City workers adversely affected by the City’s 2021 COVID-19 vaccine mandates.
Attorney Jimmy Wagner argued for the eight petitioners-appellants, who were tenured teachers employed by the New York City Department of Education and were put on leave without pay and fired for refusing to comply with the DOE’s vaccine mandate. Attorney Jesse Townsend argued for the respondents-appellees in the cases, which include the New York City Board of Education and individual school districts.
While the eight teachers initially filed separate lawsuits, they were later combined into two cases, Clarke et al. v. Board of Education of the City School District of New York City et al. and O’Reilly et al. v. Board of Education of the City School District of New York City et al. The seven justices who heard oral arguments at the Court of Appeals considered those two cases together, since their claims are substantially the same.
Six of the eight teachers attended the hearing (see my conversation with one of them in the video above). They were accompanied by supporters who rallied outside the Albany courthouse before the proceedings, led by Michael Kane from the organization Teachers for Choice.
Michael Kane from the organization Teachers for Choice spoke with me in Albany about the hearing and Teachers for Choice’s position on the upcoming U.S. presidential election. Kane traveled to Albany by bus with other supporters of the petitioners-appellants and led a rally outside the Court of Appeals before the hearing.
The supporters included other New York City workers who lost their jobs under the City’s mandates. Christina Martinez and Jeannette Loiacono, attorneys who are representing fired workers in other cases related to the mandates, also attended the hearing.
The petitioners and their supporters sat through three other cases before the Clarke/O’Reilly arguments were heard, filling the public gallery of the ornately paneled courtroom, which seats about 50. Wagner was accompanied in the courtroom by attorney Joseph Aron.
Judge’s Recusal Raises Questions
One of the seven Court of Appeals justices, Jenny Rivera, left the judges’ dias and was replaced by Second Department Appeals Court Judge Janice Taylor as the Clarke/O’Reilly arguments began.
The change led some to speculate that Judge Rivera, who was wearing a mask during the preceding case arguments, recused herself because she is unvaccinated. Rivera received some press coverage for declining COVID-19 vaccination after a mandate for New York State court system employees was rolled out in 2021. However, Rivera later publicly announced her intention to comply with the mandate by receiving a Novavax vaccine.
According to Court of Appeals press officer Gary Spencer, Rivera checked the “decline to provide a reason” option when she submitted her recusal form for Clarke/O’Reilly, leaving her reason for declining to hear the case unknown. Spencer also confirmed that there are no current vaccination or mask requirements for court employees.
Wagner Asks Judges to Vacate Lower-Court Decisions
At the hearing, Wagner asked the court to vacate the lower-court decisions in the Board of Education’s favor, arguing that putting the eight tenured teachers on leave without pay and firing them without giving them the due process afforded them by section 3020 of New York State’s Education Law was illegal.
Townsend countered by claiming that the vaccination requirement was a valid condition of employment, and not a disciplinary matter that would have triggered section 3020 due process procedures.
All of the district and appeals court judges who issued lower-court decisions in the eight cases sided with the Board of Education on the condition-of-employment claim, with one exception: Appellate court judge David Friedman wrote a partially dissenting opinion in the First Department’s O’Reilly decision, saying that “new conditions of employment . . . cannot be applied to already-tenured teachers except by an act of the legislature.” The DOE, he wrote, should have implemented the mandate as a “work rule” subject to section 3020 protections.
Jimmy Wagner made that same argument before the Court of Appeals. As the judges peppered both lawyers with questions, many of them involved the 2013 Beck-Nichols decision, which Wagner cited in his brief for the Court as establishing four criteria for conditions of employment that aren’t subject to section 3020 protections:
the condition must be established before employment begins
the policy must exhibit a legitimate purpose
the eligibility requirements must be unambiguous
only rule requirements that define eligibility for employment do not require a section 3020 hearing
Most of the courtroom discussion was focused on the first point, with Wagner underscoring the fact that the vaccination requirements were imposed on teachers long after they had begun employment and received tenure. Townsend flatly disputed Wagner’s interpretation of Beck-Nichols, which he called “idiosyncratic” in his brief for the Court.
Wagner too noted a level of idiosyncrasy in the arguments his opponent ended up making to support the idea that new conditions of employment could be imposed at any time. “The City of New York’s position was that they could require every tenured teacher to obtain a PhD, and failure to do so would result in summarily being discharged without a hearing,” Wagner commented after the hearing. “That is just so absurd.”
Financial Incentives and Far-Reaching Effects
My impression from the hearing is that the Court of Appeals decision will rely heavily on the seven justices’ own interpretations of Beck-Nichols and other cases cited during the proceedings. If their interpretations lead them to accept that an employer can override some of the strongest labor law protections in the country by imposing new “conditions of employment” at any time, there could be far-reaching implications not just for tenured teachers, but for all kinds of workers.
During the Court of Appeals hearing, Townsend himself raised the issue of financial considerations, explaining that if the Department of Education had kept noncompliant teachers on the payroll and held 3020 hearings for each of them, the cost would have made it impossible to implement the vaccine mandate.
Wagner, in his comments to me after the hearing (see video above), pointed out the financial incentive this creates for public employers to come up with new “conditions of employment” as a way of circumventing labor laws that prevent them from getting rid of their higher-paid workers.
You can watch the hearing for yourself on the Court of Appeals YouTube channel, and I’ll be keeping an eye out for the decision in this momentous set of cases.
