The NCSL Blog


By Lisa Soronen

Justice Sonia Sotomayor turned down a request from a group of New York City teachers and paraprofessionals asking her to overturn a federal district court decision upholding New York City Department of Education’s (DOE) policy requiring all employees and contractors who work in-person in DOE buildings to be vaccinated against COVID-19.

US Supreme CourtIn July New York City Mayor Bill de Blasio mandated that all municipal employees be vaccinated or tested weekly for COVID-19. In August he ordered that DOE employees could no longer opt out of the vaccine mandate through weekly COVID-19 tests.

Before a federal district court, the challengers argued that being required to get vaccinated violates their right to substantive due process under the Fourteenth Amendment by interfering with their right to pursue their chosen profession. They also argued the vaccine requirement violates the Equal Protection Clause of the Fourteenth Amendment because other municipal employees may opt out through weekly testing. 

According to the district court, while the Supreme Court has indicated the “Due Process Clause includes some generalized due process right to choose one’s field of private employment,” it does not secure the right to a specific job. “[P]laintiffs may pursue teaching or paraprofessional jobs at private schools in New York City, public and private schools outside of New York City, daycares or early childhood education centers, tutoring centers, adult or continuing education centers, virtual institutions, or within home settings.”

The district court rejected the challengers equal protection claim as well. Because the challengers aren’t part of a “legally protected class” they could only win if not allowing them to be tested weekly was an “irrational” decision.

According to the district court it wasn’t irrational for vaccines to be required of DOE employees. “Unlike other municipal employees, these DOE employees are necessarily in close contact for long hours with children below twelve – who cannot be vaccinated – in indoor, congregate settings. Social distancing, mask wearing, and testing may be sufficient to protect other municipal employees in different contexts, particularly because at least a portion of these employees are vaccinated.”

The challengers argued in their application for emergency relief to the Supreme Court that the district court erroneously rejected their arguments.

Sotomayor denied their request without issuing a written opinion, requesting a response from New York City Department of Education, or asking all the other Justices to participate in the decision. By not taking these steps, it is likely Sotomayor didn’t think this case was a close call.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.