UPDATED: The DiCapua Ruling Ordered 10 of the 16 Petitioners Back to Work but Denied Constitutional Claims and Class Certification. Here's What Could Happen Next.
At a Sept. 6 hearing, Judge Porzio issued a complex decision that the DOE has not yet honored, leading many to speculate about appeals. I doubt the City will challenge the 10 teachers' reinstatements.
SEPTEMBER 12 UPDATE: Well, friends, I guessed wrong.
Shortly after I published this piece, the City did in fact file a notice of appeal to challenge the 10 reinstatements. Michael Kane from Teachers for Choice, one of the 10 teachers who won reinstatement, broke the news.
I was betting that the City’s attorneys would treat this case the way they’ve been handling some individual lawsuits that ended in decisions granting the petitioner a religious exemption but denying constitutional claims. I thought they would probably take Porzio’s decision on the constitutional claims, cut their losses when it came to the reinstatements and back pay, and move on.
But it seems the City lawyers made a different calculation. It may be that the precedent set by the 10 reinstated teachers opened the door to too many individual lawsuits for their taste, or another group effort. Maybe they just think the appeals court will be more likely to rule decisively in their favor than Judge Porzio was.
Whatever their reasons, they’ve filed their notice, putting the DiCapua petitioners in the same boat as the Garvey petitioners before them—waiting for an appeal date that the City will likely do its best to push far into the future.
I had a feeling of déjà vu last Wednesday as I sat in a hearing and listened to Richmond County Supreme Court Judge Ralph Porzio order a group of former New York City employees back to work. Almost a year ago I heard him say the same thing to 16 DSNY sanitation workers who had been fired under the City’s vaccine mandate.
Those DSNY workers still haven’t been reinstated—or received any of the back pay Porzio ordered. The City’s lawyers filed their notice of appeal immediately, which put a stay on the decision, and the workers are still waiting for appeal hearings to begin in their case, Garvey v. City of New York.
Anything could happen, but I think things will go differently for the DiCapua v. City of New York petitioners Judge Porzio addressed last Wednesday. He ordered 10 of them to go back to work for the Department of Education the very next day, which also happened to be the first day of school for New York City kids.
So far, it doesn’t seem like they’re back in the classroom. One of them, Michael Kane, reported to the school where he used to work and explained that his principal told him he couldn’t get back in the classroom just yet. The situation was “still under review,” she said.
Petitioners’ attorney Sujata Gibson spoke outside the Richmond County Courthouse in Staten Island after the September 6 DiCapua v. City of New York hearing, introduced by petitioner and Teachers for Choice founder Michael Kane.
A Pattern of Reinstatement Cases that Uphold the City’s Legal Positions
My guess is that the delay in putting Kane—and presumably the other teachers—back to work is just a bureaucratic tangle and not the City lawyers blocking reinstatement as they did with the Garvey petitioners.
I think the City’s attorneys will let the reinstatements stand, because that would fit a recent pattern the City has been following in lawsuits brought by individuals who were denied religious exemptions under the mandates:
In cases where the judge decides that the petitioner should have received an exemption and grants reinstatement, but denies claims that the mandate or the exemption process itself was illegal or unconstitutional, the City has been declining to appeal or withdrawing its appeal.
A recent example of this is Brousseau v. NYPD. In that case, Brousseau’s petition had been granted in part, in a New York State Supreme Court decision that gave him a religious exemption, but Judge Arlene Bluth denied claims that the mandate was unconstitutional.
The City filed a notice of appeal after the 2022 judgment, but in July moved to withdraw its appeal on the grounds that it was now moot. The appellate court granted the motion on August 17. There are numerous other such cases.
Same Judge, Fundamentally Different Decision
Judge Porzio made a fundamentally different call in the DiCapua decision than in Garvey. His Garvey ruling declared the municipal worker mandate itself unconstitutional, arbitrary, and capricious. That’s why the City appealed immediately and has continued to fight it. It undermines the City’s arguments in other cases and could invalidate future mandates.
But with DiCapua, Porzio denied the petition’s constitutional claims. The lawsuit