Unvaxxed school staff push 2nd Circuit to widen relief against NYC mandate

MANHATTAN (CN) — A week after the Second Circuit ordered narrow relief to unvaccinated employees of New York City schools, their attorneys fought in court Monday for a wholesale injunction that would label the vaccine mandate as facially discriminatory.

The three-judge panel showed little insight to their opinions on the merits of the challenge during a 43-minute hearing that was held in person hearing this afternoon on a pair similar cases.

“Every single day that these people have to choose between feeding their families potentially or choosing their faith is a new harm,” attorney Sujata Gibson said in court. “There are news reports of people crying as they got vaccinated, praying to God and saying ‘I’m so sorry.’ This is not OK, every day that they’re being coerced in this way is a harm.”

New York City's public school system has more than 1 million students enrolled, and 150,000 employees between teachers and support staff. Gibson told the Second Circuit on Monday now there that just a “couple thousand” vaccine holdouts remaining from around 30,000 who sought some kind of exemption earlier in the year.

While a union-negotiated arbitration process allows for narrow religious exemptions, the two groups of unvaccinated educators maintain that the city’s mandate still violates those unvaccinated employees’ First Amendment rights to their free exercise of religion.

As noted in the city's opposition brief, both sets of challengers in the case at issue showed little urgency in fighting for their rights as several other challenges to the vaccine mandate played out in the courts.

Gibson represents nine staffers led by Michael Kane who did not sue until late September — nearly a month after the vaccine requirement was announced. The other set of plaintiffs, a group of 14 staffers led by Matthew Keil, a deacon in the Russian Orthodox Church, went to court a full month after that. They are represented by attorney Barry Black.

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. The Second Circuit opted earlier this month to grant them relief pending the merits hearing now underway — 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.

Meanwhile, Gibson accused the city in her brief of participating in “heresy inquisitions and nakedly discriminating against religious minorities.”

Keil's attorney Black echoed this position in court Monday. “Each and every single one of these people is an individual with constitutionally-protected religious liberty rights,” he told the three-judge panel.

Those claiming religious objection 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.

Chief U.S. Circuit Judge Debra Ann Livingston, Senior U.S. Circuit Judge Amayla Kearse and newly appointed U.S. Circuit Judge Eunice Lee considered the appeal Monday. They ended the hearing without announcing a timetable for their decision.

Lee, a longtime New York public defender, was nominated to hear seat in the summer by President Joseph Biden.

The city was represented at Monday's oral arguments by Susan Paulson, assistant corporation counsel with the New York City Law Department.

Mayor Bill de Blasio announced last week that 94% of city workers, public school staff notwithstanding, have been vaccinated. The late October deadline for municipal workers triggered anti-mandate protests and “sickouts,” as well as thousands of last-minute vaccinations.

“Since the mandate was announced October 20th, NYPD has gone from 70% up to 87% now. The Fire Department, the firefighting side of Fire Department from 58% to 88%. EMS from 61% to 92%. And Sanitation from 62% to 87%,” de Blasio said at briefing last Thursday. “Since the deadline at 5 p.m. on October 29th, there have been 10,000 more vaccinations. So, the deadlines work, but even after the deadlines, mandates have a powerful effect. People keep coming in to get vaccinated. This is good news for this city."

Earlier this month, de Blasio negotiated agreements with four major city unions — DC 37, Teamsters Local 237, Uniformed Sanitationmen's Association Local 831, and SEIU Local 300 — who collectively represent approximately 75,000 employees, excluding those unions’ members who work for the Department of Education and Health + Hospitals.

Under those agreements, employees who have applied for an exemption from the vaccine mandate for medical or religious reasons will receive an initial decision from the agency, then have the option to appeal that decision to an arbitrator who will decide the exemption based upon the same criteria used at the Department of Education.

Former Governor Andrew Cuomo issued the Empire State’s first vaccine mandate for health workers in mid-August, which permitted religious exemptions.

Last month, in a separate battle between the city and school workers based on due process, the Second Circuit upheld the city’s vaccine mandate.

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