"It was rational for [the New York City's Administration for Children's Services] to be concerned about the potential disruptiveness of the petitioner's speech" put forward in his essay, wrote the Appellate Division, First Department.
By Jason Grant | November 24, 2021
Appellate Division, First Department at 27 Madison Ave. (Photo by David Handschuh/NYLJ)
A state appeals court has ruled it was not a First Amendment violation, or arbitrary and capricious, for New York City’s child welfare agency to avoid hiring a man in part because he’d published an essay that laid out his views on the fundamental unfairness of the criminal justice system.
“The record supports [the Administration for Children's Services] assertion that it declined to hire petitioner because of its concern for the potential impact of his speech on his work, and not in retaliation for the content of that speech,” wrote a panel of Appellate Division, First Department justices, in part, as the panel addressed a First Amendment-based argument leveled by the man in his action against city agency ACS after it didn’t hire him as a youth development specialist.
The unanimous First Department panel also ruled the ACS’s choice not to hire the plainti John Whiteld was not an “arbitrary and capricious” decision.
That particular ruling came as the justices analyzed whether ACS, by not hiring Whiteld, had run afoul of judicial review under CPLR Article 78. Article 78 is a state statutory section that allows litigants to ask a court to review decisions and actions of a state ocial or administrative agency.
“While such opinions [expressed in the essay] might help the petitioner [Whiteld] to empathize and bond with youth charged to his care, it was not irrational for the respondent [ACS] to conclude that [Whiteld's] opinions might demonstrate a cynicism that would impede his ability to counsel at-risk youth who were enmeshed in the system,” wrote the justices as they conducted an Article 78 analysis.
Whiteld, who represented himself pro se before the First Department panel, according to the decision, could not be reached for comment.
https://www.law.com/newyorklawjournal/2021/11/24/appeals-court-sides-with-child-welfare-agency-that-passed-over-job-seeker-because-of-essay-on-... 1/2
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