Unvaxxed teachers must be reinstated, judge rules

Ten educators who previously worked in city public schools and were terminated for refusing to get the coronavirus vaccine are entitled to religious exemptions and must be reinstated, a Staten Island Supreme Court judge ruled last week.

Supreme Court Justice Ralph Porzio determined Sept. 6 that the Department of Education employees must receive back pay, benefits, pensions and seniority starting from the day they were placed on leave without pay. The educators were terminated in February 2022.

“I feel vindicated,” Nwakaego Nwaifejokwu, one of the teachers named in the decision, told The Chief. 

Teacher Michael Kane, who was also among the reinstated educators and founder of New York Teachers for Choice, an organization against forced vaccinations, called the ruling “ginormous.”

“Those of us who got reinstated, we were really excited,” he told The Chief during a phone interview. “This could impact thousands of others.”

But despite the judge’s order that the employees be “immediately” reinstated, Kane noted that when he went to his school last week, he was told that his case was under review by the DOE.

“The city keeps stalling,” he said, adding that he anticipates that the city will appeal the decision. 

The DOE and the city Law Department did not return a request for comment.

The city’s Covid vaccine mandate for Department of Education employees was instituted Nov. 1, 2021, and lifted Feb. 10. The lawsuit was filed on behalf of the educators by the Children’s Health Defense, an anti-vaccine organization founded by Democratic presidential hopeful Robert F. Kennedy Jr.

In his ruling, Porzio noted that the denials for the workers’ religious accommodation requests were “arbitrary and capricious.” The citywide panel, which reviewed the employees exemption requests, asserted that “granting reasonable accommodation to classroom teachers could not be done without preventing a risk to the vulnerable and still primarily unvaccinated student population,” and would cause “undue hardship.”

Although the judge noted that this “undue hardship” explained why the accommodation requests made by seven classroom teachers named in the lawsuit were denied, he highlighted the fact that two educators named in the suit worked in non-classroom settings and received different decisions, with one having his accommodation request accepted.

“By granting some accommodations while denying others, without a rational reason, the Respondents have acted in an arbitrary and capricious manner,” the decision reads.

Additionally, the judge wrote that “This court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students.”

In October, Porzio ruled that 16 city sanitation workers were wrongfully terminated for refusing the vaccine. In that decision, he argued that the city's vaccine mandate was "arbitrary and capricious," noting that the mandate was lifted for athletes and entertainers in March 2022, as well as for private employees in November, while remaining in-tact for public employees.

Class-action denied

However, six other teachers named in the suit who sought religious exemptions and reinstatement, as well as New York Teachers for Choice, had their motion for relief struck down.

“Although the petitioners’ overall position is that the citywide panel did not provide relief to the vast majority of initial DOE applicants, and specifically that these petitioners did seek that review, the record before this court is insufficient to make any determination as to those claims,” Porzio stated in his decision.

Additionally, the judge denied the educators’ motion to certify the action as a class-action lawsuit, calling the proposed class of “all DOE employees who submitted a request” for an exemption to the vaccine mandate “overbroad.” He noted that, among the petitioners named, several did not actually submit an accommodation request, and two had had their requests granted and thus had not suffered “the same alleged harm as the overall class.”  

Still, this decision “while not everything we wanted, is a precedent-setting victory,” said Sujata Gibson, the educators' lead attorney. “The court’s ruling in the 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.”

“We’re not leaving any teachers behind,” Kane added.

City workers terminated because of the mandate were allowed to apply to work for the city again starting in February, but were required to sign a waiver barring them from suing the city over back pay or civil-service rights in order to return.

Nwaifejokwu, who worked for 12 years as a special-education teacher in the Bronx and now runs a tutoring business, refused to sign the waiver. She said she hasn’t heard anything from her old school or from the DOE since the ruling rescinding her termination was made.

She said that she had “mixed feelings” about the ruling, because she knows other teachers who have been harmed by the mandate but were not included in the judgment. The educator added that many city workers who initially refused to take the shot then got inoculated because of the mandates, or who left their jobs and took lump sum payments “feel that they need justice.”

“There’s a shortage of teachers and you have teachers who want to work,” Nwaifejokwu said. “I wish the city would just be honest and say ‘We were wrong.’ ”

clewis@thechiefleader.com

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