A group of New York City teachers have asked the U.S. Supreme Court for an emergency order blocking the city's vaccine mandate from going into effect Friday.
The petition asks Justice Sonia Sotomayor, who is the circuit justice for this part of the country, to issue an emergency injunction blocking the mandate, which they claim would force thousands of public school employees out of work if it were to remain in place.
"In attempting to combat the COVID-19 virus, the City of New York, the
Department of Education, and the Department of Health and Mental Hygiene created an Executive Order that places an unconstitutional burden on public-school teachers," lawyers for the teachers wrote in their 12-page petition.
The state's order would violate a teacher's fundamental right to pursue an occupation, the lawyers told the court, and teachers who fail to get the vaccine will never be able to return to work. They added that the order is unfair because it does not apply to other city employees, including firefighters and police officers, who routinely deal with the public. Teachers, by contrast, "maintain close indoor contact with children, who are dramatically less susceptible to illness from COVID."
Get Tri-state area news and weather forecasts to your inbox. Sign up for NBC New York newsletters.
Other municipal workers are allowed to keep working if they submit to weekly COVID testing in lieu of getting the vaccine, lawyers stated.
Justice Sotomayor will likely seek a reply from the city before acting on the case, and is likely to refer it to the full court for a decision.
New York City Mayor Bill de Blasio has said he is confident courts will uphold the city's efforts to exclude unvaccinated staff from school buildings, where they might infect co-workers or children too young to get the shots.
Earlier this week, federal judges ruled in the city's favor and dissolved a temporary block that kept the city's vaccine mandate on ice.
The 2nd U.S. Circuit Court of Appeals in Manhattan issued its ruling Monday evening, in a move that shocked many, dissolving last Friday's injunction and denying the original motion.
After an adverse ruling from a Brooklyn judge, a group of teachers had brought the case to the appeals court, which assigned the three-judge panel to hear oral arguments. But the appeals panel issued its order after written arguments were submitted by both sides.
Mayor Bill de Blasio has said the vaccine mandate will go into effect on Monday, Oct. 4 — meaning that all school employees have until the end of day on Friday to get the necessary vaccination, if they haven't done so already.
The city's DOE cheered the judges' ruling.
"Vaccinations are our strongest tool in the fight against COVID-19 — this ruling is on the right side of the law and will protect our students and staff," said DOE spokeswoman Danielle Filson.
But the city's largest teachers union wasn't so quick to celebrate the new developments. In a statement, the United Federation of Teachers said that while the city's estimates had 97 percent of teachers being vaccinated, a recent union survey showed "only about one-third (of UFT chapter leaders) believe that as of now their schools can open without disruption, given the potential shortage of unvaccinated personnel.
"The city has a lot of work before it to ensure that enough vaccinated staff will be available by the new deadline," the statement from UFT President Michael Mulgrew read. "We will be working with out members to ensure, as far as possible, that our schools can open safely as the vaccine mandate is enforced."
The previous block to the mandate had prompted the mayor to reimplement the policy weekly testing for staff who do not produce proof of vaccination.
As of Monday, de Blasio said 87 percent of all DOE personnel are at least partially vaccinated, including 90 percent of teachers and 97 percent of principals. The UFT said 97 percent of its members are at least partially vaccinated as well.
An attorney representing Department of Education employees says opponents of the mayor's school mandate just want a weekly test option scribed into the rule for those who, for whatever reason, do not want to be inoculated against COVID.
"Quite many of them are not anti-vaccination. They're anti-mandate," attorney Louis Gelormino said of city education workers who oppose de Blasio's shot requirement. "Think the true thing that united them all is that they're the only municipal workers in New York City that are being forced to get this vaccination and they're the only school teachers in New York state that are being forced to get this vaccination."
Lawyers for teachers argued Monday in papers submitted to the 2nd Circuit that teachers who are placed on unpaid leave because they have not complied with the order will be irreparably harmed if the appeals court failed to block the mandate.
The lawyers wrote that the city's order will “leave teachers and paraprofessionals without the resources to pay rent, utilities, and other essentials. The harm is imminent.”
They said the mandate would leave thousands of New York City children in the nation's largest school district without their teachers and other school workers.
“Imminent and irreparable harm exists,” the lawyers insisted.
Even though most school workers have been vaccinated, unions representing New York City principals and teachers warned the 1 million-student school system could be short as many as 10,000 teachers, along with other staffers, if the mandate forces some away from the classroom.
Mayor de Blasio had previously resisted calls to delay implementing the mandate, insisting the city was ready. He has also said the city has an army of fully vaccinated substitutes ready to deploy should there be any concern about adequate staffing in its schools. Following Monday's last-minute ruling, it wasn't immediately clear if the city would still implement the mandate according to schedule.
“We’ve been planning all along. We have a lot of substitutes ready,” the Democrat said in a radio interview last week.
In an email to staff over the weekend, NYC Schools Chancellor Meisha Porter had advised schools to prepare for the possibility the vaccine mandate taking effect this week, guidance which would later prove wise given the judges' ruling Monday. The mayor had also said he believed the mandate would prevail, citing a recent failed effort in federal court to block Key to NYC, the city's rule requiring patrons of restaurants, gyms, theaters and other venues to provide proof of vaccination prior to entering businesses, as fuel for his argument.
