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NYC school workers who spurned vaccine orders strike out in court

The educators failed to secure an injunction first because the possibility of job loss is a purely financial issue that can be remedied with damages, and second because they have little chance of success on the merits.

MANHATTAN (CN) — One day after the Supreme Court denied emergency relief to health care workers who have thumbed New York state's mandate that they get the coronavirus shot, a federal judge shut the door Tuesday on two groups of unvaccinated employees of city schools.

“Plaintiffs have neither attempted to nor have they demonstrated irreparable harm,” U.S. District Judge Valerie Caproni wrote in a 13-page decision. “Accordingly, the only alleged harm is economic, and it can be remedied by money damages, were the Plaintiffs to prevail on the merits of the litigation.

Led by teachers Matthew Kane and Michael Keil, the public school staffers brought a two-pronged challenge. First they claimed broadly that the vaccination mandate meant to protect the 1 million students enrolled in New York City's public schools is unconstitutional on its face. They also took aim, however, at the union-negotiated arbitration process that allows for narrow religious exemptions. The process requires that staffers seeking religious exemption provide a letter from a religious official explaining why their faith directed them against vaccination.Judge Caproni, an Obama appointee, concluded Tuesday that neither group of workers showed that the citywide panel’s process was not neutral or rational.

“For the same reasons that the Second Circuit and the Undersigned found the vaccine mandate to be rational on its face, the Court has 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,” she wrote.

Barry Black, an attorney for five of the vaccine-opposed educators, said Tuesday they are "disappointed, but not surprised," with Judge Caproni's ruling and plan to appeal shortly. "Virtually all DOE applicants for religious exemptions have been denied," he said. "They deserve better, and the fight will go on."

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

The staffers had noted, for example, in their brief to the Second Circuit that two employees who worship at Church at the Rock in Brooklyn both provided letters requesting exemption by the same pastor. One received an exemption; the other did not.

While the Second Circuit determined that the workers were unlikely to succeed on their facial challenge to the vaccine mandate, it remanded the case back to district court for relief pending a merits hearing — essentially tracking a proposal from the city to let them make their arguments for religious exemption to citywide panel. The city called that offer "more than sufficient" in its brief to the court, saying no further action is required.

As of Tuesday, 75.5% percent of all New Yorkers had at least one vaccine dose, while 68% had a completed vaccine series.

"Without additional facts about the Citywide Panel, about the information each Plaintiff provided it, and about its decisions to deny Plaintiffs’ applications, Plaintiffs have not proven that they are likely to prevail in their argument that the Panels’ decisions are constitutionally or otherwise suspect,” Caproni wrote Tuesday. “In short, Plaintiffs have not shown that they are likely to succeed on the merits.”

During November oral arguments, Sujata Gibson, an attorney for the school workers, told the Second Circuit just a “couple thousand” vaccine holdouts remained then, from around 30,000 who sought some kind of exemption earlier in the year.

Covid-19 has killed over 5.3 million people across the globe, including nearly 800,000 in the United States. While there is near unanimity among major churches and denominations that every person eligible should immunize themselves against the virus, those seeking religious exemption are focused on the remote connection that the vaccine has 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.

Last week, New York Gov. Kathy Hochul announced a statewide mandate ordering all offices, restaurants, shops and other businesses to require their staff and customers either mask up or show proof of vaccination through Jan. 15, 2022, or face a $1,000 fine per violation.

The mandate, which was primarily a response to upstate counties with low vaccination rates that were hard hit over the summer the contagious delta variant of the coronavirus, went to effect on Monday, as the more recent omicron variant continues rapidly spreading throughout the country.

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