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NYC school staff who rebuffed vaccine mandate urge 2nd Circuit for relief

The few holdouts opposed to New York City's Covid-19 protocols for public school employees found an unreceptive appellate audience Thursday.

MANHATTAN (CN) — Already more than halfway through the academic calendar, a collection of school workers suspended for refusing to get vaccinated against Covid-19 mounted an unlikely bid for an injunction at the Second Circuit.

“How is there irreparable harm here,” Senior U.S. Circuit Judge Walker questioned a lawyer for the workers at oral arguments in Manhattan on Thursday.

“Your clients can be reimbursed if the injunction is denied, and they could eventually be made whole in damages," the George H.W. Bush-appointed judge went on, quoting precedent that says "losses of health insurance and other incidentals relative to employment are encapsulated within the general rule that employee termination is not subject to a preliminary injunction.”

One attorney for the workers framed the issue in the stark language of religious discrimination in a brief earlier this month.

"Unless this court acts now, everyone affected must choose either to abandon their educational careers or — in their own eyes — to disobey their God. The daily trauma of being coerced into this choice is causing them irreparable harm,” wrote Ithaca-based attorney Sujata S. Gibson, who represents Michael Kane and eight other NYC school employees who waited until late September 2021— nearly a month after the vaccine requirement was announced — to file suit.

The Kane plaintiffs and another group led by Matthew Keil, a deacon in the Russian Orthodox Church, belong to the bare 1% of New York City public school staff who have refused to get vaccinated during the coronavirus pandemic. They seek a reversal now after a federal judge denied them an injunction.

“It is true that courts have held that, generally, monetary damages alone do not provide the basis for a preliminary injunction, but context tells a whole other story,” attorney Barry Black, representing the Keil plaintiffs, told the appeals panel on Thursday morning.

“These are teachers; they aren’t wealthy,” he continued. “Their careers are driven by a tenure track, seniority and a clean record. The city has engaged in frightening hostility towards those who have committed their lives to our children.

“It had prohibited them from taking work elsewhere. It has canceled their health insurance. It has reported them to the Department of Labor as having engaged in misconduct. It has actively sought to hurt them for no reason other than their wanting to stand by their religious conviction.

“If having to choose between your faith and 35 years you’ve invested in your career is not irreparable harm, then what is? If having to choose between your faith or becoming unemployed with no real income or opportunities is not irreparable harm, then what is?

“And finally," Black concluded Thursday, "in what universe is terminating hundreds of teachers — and leaving them and their families without income, health insurance, and professional options — not irreparable harm, and how is this even humane?”

Attorneys for New York City say meanwhile that the unvaccinated staffers have presented no evidence that the accommodation-determination process was infected with religious animus.

“Though plaintiffs now purport to challenge the constitutionality of the ... accommodation review process, they failed to provide the district court with a record showing what information was presented to the panel or why the panel reached particular determinations, much less evidence that the panel’s determinations were guided by constitutionally impermissible criteria or motivated by religious animus,” New York City Law Department attorney Susan Paulson wrote in a brief to the appeals court.

After the hearing Thursday, Black said in an interview he believed the arguments went well and he is “hopeful the court will do the right thing.”

“The city had little defense to our substantive arguments, so it tried to argue its way out of the mess it created on procedural grounds,” Black said.

Those who object to the vaccine on religious grounds do so without the backing of any of the major religions. They point to the remote connection that the vaccines have to laboratory use of a fetal cell line harvested from aborted fetuses acquired in the 1970s and 1980s.

In separate court battles over similar mandates, government officials have questioned whether these same religious concerns stopped the objectors from using common medicines like Tums and Benadryl or Tylenol and Pepto-Bismol, which were developed through the same cell lines.

Along with Judge Walker, the panel considering Thursday's appeal consisted of U.S. Circuit Judges Debra Ann Livingston and Amayla Kearse. They ended the hearing without announcing a timetable for their decision.

U.S. District Judge Valerie Caproni denied the Kane plaintiffs an injunction on Oct. 12 and did the same for the Keil plaintiffs on Oct. 27, by which time the vaccine deadline was already four weeks passed and approximately 95% of all public school staff had been vaccinated.

Those decisions were later vacated on appeal after the Second Circuit found that the city did not appear to be evenly handling the educators' exemption requests.

Though the court denied their facial challenge to the vaccine mandate at the time, it did grant preliminary injunction on the as-applied claims for the individual plaintiffs and sent the case back down to Southern District of New York.

The Second Circuit opted to grant them relief pending merits hearings that were then underway, essentially tracking a proposal from the city to let them make their arguments for religious exemption to citywide panel.

Returning back the Second Circuit on appeal this month, the unvaccinated staffers claimed in their appeal that district court erred by applying rational basis review to the “fresh consideration” process and also by placing the burden for demonstrating why religious accommodation is not available on appellants rather than appellees.

Earlier this month, the two groups of unvaccinated staffers brought an appeal to Supreme Court Justice Sonia Sotomayor to “temporarily enjoin[] the continued enforcement of the Mandate against the (less than) three percent of employees who cannot comply due to religious objection.”

Justice Sotomayor denied their application just three days after it was filed.

Amid ebbing case numbers after a surge of the coronavirus omicron variant in the winter months, New York City Mayor Eric Adams said on Wednesday he anticipates the city's indoor Covid-19 mask and vaccine mandates will be responsibly phased out over the weeks to come.

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