MANHATTAN (CN) — A coterie of holdouts representing New York City's bare 1% of public school employees who have refused to get vaccinated against the coronavirus failed Thursday for the second time to secure injunctive relief.
Lead plaintiffs Matthew Kane and Michael Keil say the city's process for reviewing religious or medical objections to the vaccine offers only lip service, but a federal judge ruled against them and the Second Circuit affirmed this morning.
“Plaintiffs have failed to demonstrate that the district court abused its discretion in concluding that they failed to demonstrate that they were likely to prevail on the merits of their challenge to the Citywide Panel procedures,” the unsigned 9-page opinion states. “As both the district court and a motions panel of this Court emphasized, Plaintiffs’ Application, which consists of a hastily drafted one-and-a-half-page letter and fifty-nine pages of various exhibits, is deficient in two overarching respects.”
New York City puts vaccine-exemption requests to a panel made up of representatives of the Department of Citywide Administrative Services, the City Commission on Human Rights and the Office of the Corporation Counsel.
“We further hold that the district court properly determined, in applying rational basis review, that there were ‘no facts before it on which it could conclude that the Citywide Panel’s process was irrational in any way or infected with hostility to religion,’” Thursday's order states. “In so holding, we emphasize that we express no view on the ultimate merits of this case, which may be determined in the future upon a complete and carefully presented record in contrast to the present deficient record before the district court.”
Barry Black and Sujata Gibson, lawyers for the unvaccinated school staffers, did not immediately respond to requests for comment on the decision.
During oral arguments last week, Senior U.S. Circuit Judge John Walker questioned one of lawyers: “How is there irreparable harm here?”
“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 noted, 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.”
Walker was joined on the panel by U.S. Circuit Judges Debra Ann Livingston and Amayla Kearse.
It was U.S. District Judge Valerie Caproni who denied the Kane plaintiffs an injunction on Oct. 12 and did the same for the Keil plaintiffs on Oct. 27. The vaccine deadline was already four weeks passed by this time, and approximately 95% of all public school staff had been vaccinated.
Though the Second Circuit initially vacated those decisions on appeal, saying the city did not appear to be evenly handling the educators' exemption requests, this set the stage for the review process by the citywide panel that also rejected Kane, Keil and the other employees' exemption bids.
Returning back the Second Circuit on appeal last month, the unvaccinated staffers claimed they faced an undue burden to demonstrate why religious accommodation is not available.
The unvaccinated staffers had also appealed to the Supreme Court last month, but 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 announced last week plans to remove the schools’ indoor mask requirement on March 7.
In tune with the city’s incremental phasing out of Covid-19 measures, schools chancellor David C. Banks announced last week that students would no longer have to wear masks outside of schools.
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