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Appeals court keeps NYC teacher vaccine mandate in effect

Without an injunction, the teachers must return to District Court to continue their crusade against Covid-19 shots. 

BROOKLYN (CN) — New York City’s vaccine mandate for its public school teachers survived appeal to the Second Circuit, with a panel of judges denying a preliminary injunction of the requirement Friday. 

The summary order came without a written opinion, one day after oral arguments where a three-judge panel reiterated a point from the ruling late last month by U.S. District Judge Brian M. Cogan who denied the teachers an injunction. The Brooklyn-based Cogan had found that New York City's mandate does not implicate any fundamental right for teachers to pursue their profession since other opportunities for them exist.

In addition to private schools in the city and public or private schools outside of the city, Cogan said day cares, tutoring centers or virtual institutions are possible sources of employment. 

“Ultimately, even if plaintiffs disagree with it, the Order at issue represents a rational policy decision surrounding how best to protect children during a global pandemic,” Cogan wrote in the 12-page order. 

New York City Mayor Bill de Blasio instituted the mandate in September. Any teachers or school staff who refuse vaccination are not welcome back. They may take unpaid leave and keep their health insurance benefits for the school year, but they lose those benefits if they find work in other school districts. 

Staten Island-based attorney Louis Gelormino argued on Tuesday that the other jobs available to unvaccinated schoolteachers don’t compare to the prestige of teaching in New York City public schools, which require a master’s degree that can cost upwards of $200,000. 

“The New York City school system is pretty much the only game in town here,” he said of the roughly 1 million-student district. 

Gelormino’s client, Rachel Maniscalco, seeks to represent a class of similarly situated educators, but Cogan has not certified her to do so. Though she seeks religious or medical exemptions to the vaccine requirement, the 11-page federal complaint does not mention any specific religious beliefs or medical conditions. It notes rather that the teachers’ “deeply rooted liberty interests, including the right to work as teachers,” are at stake. 

Appellate judges pointed out on Thursday that the attorney arguing before them was required to wear masks to court and practice his profession. 

“This isn’t an infringement. This isn’t going into my body,” Gelormino replied, noting that he “would have a problem” had he been asked to get vaccinated before appearing in court. 

“I’m fully vaccinated,” he quickly clarified. He said that's the case for most teachers, too — they aren’t anti-vax but anti-mandate. 

After Gelormino argued that an adult vaccine mandate has not been imposed by the state in more than 100 years, judges agreed that the measure is extreme. But they noted that, as in the case Jacobson v. Massachusetts cited in Judge Cogan’s order, the risk of the deadly pandemic to teachers, students and the community remains a key factor. 

“I think everyone agrees, Judge Cogan agrees, it’s a requirement and an ask by the government that is really unlike any other,” U.S. Circuit Judge Susan L. Carney said. 

But, “even recognizing how intrusive it is to ask someone to put something in their body," the Obama appointee added, case law did not support applying strict scrutiny to the situation. 

Susan Paulson from New York City’s law department said the school district had “zero interest” in losing its committed career teachers, but wanted to create the safest possibly environment. 

“They’re choosing to retain the public school teachers who agree to be vaccinated in order to protect the children,” Paulson said.

As the case returns to the District Court on remand, it will be up to Cogan to decide the next steps in the case. Appellate judges raised the issue of creating a remedy for teachers who refused vaccination and couldn’t work because they wanted to keep their health benefits. 

New York City Law Department spokesperson Nick Paolucci said the latest ruling bodes well for the city's vaccine requirements. 

“Again and again Courts are sending the same message: DOE’s vaccine mandate is lawful,” Paolucci wrote in an email to Courthouse News. "Students and the community at large are safer because of it."

Gelormino did not respond to a request for comment on Friday afternoon. 

A separate case brought by health care workers opposing the statewide Covid-19 vaccine requirement on religious grounds gained traction earlier this week in the Northern District, when U.S. District Judge David Hurd agreed to convert a temporary restraining order from September into a preliminary injunction. 

Governor Kathy Hocul has appealed Hurd's ruling. Arguments in the Second Circuit are set for that case later this month.

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