Telling the justices that the “education of thousands of children in the largest public-school system in the country” is at stake, four New York City public-school employees came to the Supreme Court on Thursday, asking the justices to act quickly to put the city’s COVID-19 vaccine mandate on hold while they litigate their challenge to the mandate. The request came on the same afternoon that Justice Samuel Alito pushed back against criticism of the court’s handling of the so-called “shadow docket” – the collection of orders and summary rulings that were not briefed and argued on the merits – in a widely publicized speech at the University of Notre Dame’s law school.
The vaccine mandate, issued in an executive order on Aug. 23, requires New York City public-school employees to prove that they have received at least one dose of a COVID-19 vaccine. The city plans to enforce the mandate beginning at 5 p.m. on Friday, Oct. 1. The challengers complain that the mandate was intended to discriminate against public-school employees because it allows other city employees, including some who work with children, to remain in their jobs without being vaccinated as long as they undergo weekly testing. Public-school employees who are not vaccinated, however, will be placed on unpaid leave. The challengers argue that they have a right to practice their profession, and that there is “no rational and non-discriminatory basis for treating” them “differently than other municipal workers.”
A federal district court turned down the challengers’ request to temporarily block the enforcement of the mandate, and the U.S. Court of Appeals for the 2nd Circuit declined to put the mandate on hold while the challengers appeal. That led the challengers to come to the Supreme Court, where they urged the justices to step in on an emergency basis and grant an injunction “after nearly two years of lockdowns, to prevent the largest public-school system in the country from further disrupting the education of hundreds of thousands of students who desperately need in-person teachers.” And they implored the court to act quickly, telling the justices that the court “will lose the opportunity to provide meaningful relief” once the mandate goes into effect if it does not issue an injunction immediately.
The city’s school system has more than 150,000 teachers and staff. About 97% of its principals, 95% of teachers, and 87% of non-teaching staff have received at least one shot, The New York Times reported this week.
The employees’ request goes first to Justice Sonia Sotomayor, who handles emergency requests from New York. Sotomayor can act on the request alone or refer it to the full court.
The case is not the first time a challenge to a vaccine mandate has come to the court on its shadow docket. Last month, Justice Amy Coney Barrett turned down an emergency request from Indiana University students seeking to block the university’s vaccine requirement.
This post is also published on SCOTUSblog.
