Case updates this week:

October 17: In O’Reilly & Clarke v. Board of Education of the City School District of New York, et al, the New York Court of Appeals affirmed the Appellate Division’s dismissal of the petitions filed by tenured public school teachers employed by the Board of Education of the City School District of New York (BOE). The Plaintiffs challenged the BOE’s decision to place them on leave without pay after they failed to submit proof of vaccination, as required for all BOE employees. The Appellate Division held that failure to prove vaccination, which was a condition of employment, was ‘unrelated to job performance, misconduct, or competency’ and did not constitute ‘teacher discipline’ and was, therefore, not subject to the procedures mandated by “Education Law §§ 3020 (Discipline of teachers) and 3020-a (Disciplinary procedures and penalties)”.” 

The State of New York Court of Appeals agreed the teachers were not entitled to hearings under Education Law §§ 3020 and 3020-a because these statutory provisions relate to disciplinary matters and not employment conditions.

Health Equity Litigation - Louisiana v. EPA

August 22: In The State of Louisiana v. U.S. Environmental Protection Agency, the United States District Court for the Western District of Louisiana entered an order granting a permanent injunction preventing the United States Environmental Protection Agency (EPA) and the Department of Justice (DOJ) from enforcing any disparate impact requirements under  Title VI of the Civil Rights Act.

Title VI of the Civil Rights Act of 1964, in §601 protects individuals from being excluded from or discriminated against on the basis of race, color, or national origin under any program receiving federal financial assistance. Under §602 of Title VI, federal agencies that administer programs that distribute financial assistance must ensure that program recipients do not engage in discrimination. Agencies are authorized to withhold financial support if they are not able to negotiate voluntary compliance. The EPA’s rules for compliance with Title VI’s requirements have been in place since 1973.

This case arose from an EPA determination that Louisiana’s emissions permit approvals would disparately and negatively impact communities on the basis of race, color or national origin. In May 2023, the State of Louisiana responded by bringing suit against the EPA to prevent it from investigating civil rights complaints based on a “disparate impact” or cumulative effects basis. Louisiana alleged an assortment of claims that the EPA has exceeded its authority by including discrimination based on disparate impacts or cumulative effects, in addition to as well as discrimination directed at specific individuals. However, Louisiana’s concerns are not about statutory interpretation or the separation of powers. The state’s complaint sets them forth plainly:

EPA officials have lost sight of the agency’s actual environmental mission, and instead decided to moonlight as a social justice warriors fixated on race. To that end, EPA officials declare compliance with environmental law and actual environmental standards is not enough: to avoid loss of federal funds, States must also satisfy EPA’s increasingly warped vision of “environmental justice” and “equity.”

It is hardly “warped” to envision “justice” and “equity” to include making sure that environmental protections are instituted on a non-discriminatory basis. For the present, this decision applies only to EPA actions in Louisiana.