New York City can’t penalize its employees for being unvaccinated, a state court says. In a decision published yesterday, Judge Ralph J. Porzio held that city employees who were fired for not being vaccinated against COVID-19 must be reinstated and receive back pay.
“Being vaccinated does not prevent an individual from contracting or transmitting Covid-19,” wrote Porzio in his decision, noting that “as of the day of this Decision, CDC guidelines regarding quarantine and isolation are the same for vaccinated and unvaccinated individuals.” The fired employees “should not have been terminated for choosing not to protect themselves,” he wrote.
Porzio is a judge for the New York Supreme Court in Richmond County. In New York, there are multiple Supreme Courts and they are not the highest court in the state (that’s the Court of Appeals), so Porzio’s decision here is not the final word.
Still, it’s an encouraging blow against a truly arbitrary and overreaching requirement.
The case stems from order of the city’s Department of Health and Mental Hygiene. In October 2021, Health Commissioner of New York City Dave Chokshi said all public employees must be vaccinated against COVID-19 or face termination. In December, the commissioner extended the law to apply to employees of private companies and, in March, New York City Mayor Eric Adams issued an executive order exempting some classes of employees.
Then, a group of unvaccinated Department of Sanitation employees fired in February 2022 sued. They argue that the exemption of certain classes of employees makes the whole order arbitrary, capricious, and unconstitutional.
The court agreed. “The Mayor, in issuing [the exempting executive order], made a different decision for similarly situated people based on identical facts,” reads Porzio’s decision. “There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions, like athletes, artists, and performers. This is clearly an arbitrary and capricious action because we are dealing with the identical unvaccinated people being treated differently by the same administrative agency.”
All but one of the fired employees in this suit applied for exemptions from the vaccine mandate, were denied, and were kept in full employment pending a month-long appeal of this decision, the judge pointed out. He suggested this is further evidence of the arbitrary and capricious nature of the order.
“Though vaccination should be encouraged, public employees should not have been terminated for their noncompliance,” Porzio wrote. He noted that there was no reason the city couldn’t have continued with a vaccinate-or–test scheme.
Because of the arbitrary and capricious nature of the public employee vaccine mandate, it violated the state’s equal protection rights under the New York Constitution, the judge concluded. “Granting exemptions for certain classes and selectively lifting of vaccination orders, while maintaining others, is simply the definition of disparate treatment.”
“It is clear that the Health Commissioner has the authority to issue public health mandates. No one is refuting that authority,” he added. “However, the Health Commissioner cannot create a new condition of employment for City employees. The Health Commissioner cannot prohibit an employee from reporting to work. The Health Commissioner cannot terminate employees.”
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South Carolina law criminalizes obnoxious behavior in schools—”allowing children as young as 7 to be arrested for vague allegations of classroom disruption,” the American Civil Liberties Union (ACLU) says. Since 2016, the ACLU has been in court challenging these statutes—including a disorderly conduct law that criminalizes swearing in schools and a “disturbing schools” law that bans loitering or acting in “an obnoxious manner” in schools.
Last year, a federal district court struck down the “disturbing schools” law. But the state appealed, and now the ACLU and the ACLU of South Carolina are back in court over it. Oral arguments for the case were heard by a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit yesterday.
In South Carolina, being accused of loitering or cursing in school could result in a criminal record.
This deepens the school-to-prison pipeline and disproportionately harms Black students, who are four times more likely than white students to be charged under this law.
— ACLU (@ACLU) October 25, 2022
At the center of the suit—Carolina Youth Action Project v. Alan Wilson—are students who were arrested under the law, including Niya Kenny. A former student at Spring Valley High School in Columbia, South Carolina, Kenny “witnessed a violent, headline-grabbing altercation in her classroom when a school resource officer flipped a classmate over in her desk and dragged her across the room,” the ACLU says. “Kenny, who is African-American, spoke up against the officer’s actions. She was arrested and hauled off to a detention center.”
Here’s the opening brief filed by South Carolina Attorney General Alan Wilson, and here’s the response from the Carolina Youth Action Project and other plaintiffs. The civil liberties groups argue that the South Carolina law violates the Due Process Clause of the Constitution.
FREE MARKETS
Twitter is losing heavy users. One argument frequently heard by people who want to change antitrust laws to target tech companies is that without intervention major players like Facebook and Twitter will dominate forever. It’s unclear to me why government should be in the business of toppling companies just because they’re very big or popular. Regardless, the underlying premise of this argument keeps proving itself wrong. New social media platforms—TikTok, BeReal, Gas—keep gaining ground, while Facebook is losing U.S. users. And now it seems like Twitter may be on a downswing too. The company has been losing some of its most active users, Reuters reported yesterday. The platform’s “heavy tweeters” have been using it less and less since 2020.
A Twitter spokesperson told Reuters: “Our overall audience has continued to grow, reaching 238 million mDAU [monetizable daily active users] in Q2 2022.”
But a decrease in activity by heavy users—defined as those who log in at least six days per week and tweet at least three or four times per week—may nonetheless hint at trouble. According to Reuters, these heavy users make up around just 10 percent of overall users but generate 90 percent of tweets and around half of the company’s revenue.
QUICK HITS
NEW: Progressive Caucus Chair Pramila Jayapal says in a statement they’re withdrawing their Ukraine letter.
“The letter was drafted several months ago, but unfortunately was released by staff without vetting. As Chair of the Caucus, I accept responsibility for this.” pic.twitter.com/iPKdHRllRz
— Andrew Solender (@AndrewSolender) October 25, 2022
• What can we expect from new U.K. Prime Minister Rishi Sunak?
• “On Tuesday, a Russian court upheld WNBA player Brittney Griner’s nine-year sentence on marijuana possession charges,” notes Reason‘s Emma Camp.
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