Panel offers shot at vaccine exemption for NYC school staff holdouts

MANHATTAN (CN) — A group of educators who say that the vaccine against Covid-19 goes against their religious beliefs stepped closer to securing an exemption from New York City's mandate after the Second Circuit found a narrow constitutional violation Sunday.

“We conclude that Plaintiffs have not shown a likelihood of success on their facial challenge to the Vaccine Mandate. At this juncture, however, they have demonstrated a likelihood of success on their as-applied challenge to the proceedings used in assessing their accommodation requests,” the 50-page opinion states.

With no judge on the panel claiming authorship, the decision comes less than a week after the Second Circuit heard arguments on consolidated appeals from two lawsuits brought by 15 educators — among them an Orthodox Jew, a Russian Orthodox Christian deacon, and an individual who said his spiritual guides were Christ and Buddha.

The challenge by the educators was two-pronged. 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. More narrowly, however, they also took aim 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.

In their brief to the Second Circuit, the staffers led by Michael Kane and Matthew Keil argued that that the process was not consistent. They noted that two employees who worship at Church at the Rock in Brooklyn both sought exemptions and both provided letters written by the same pastor. One received an exemption; the other did not.

Even the city's brief conceded that the accommodation process created by the arbitration was “constitutionally suspect.”

This was enough for the Second Circuit to conclude Sunday that the employees must have their requests reconsidered under a fair process.

The ruling follows a Nov. 15 order from a motions panel of the Second Circuit that allowed the 15 educators to have their requests to obtain religious exemptions to the vaccine reconsidered while extending deadlines.

The order said the requests would not be judged through the criteria set forth in the arbitration agreement but instead through standards set out in the 1964 Civil Rights Act.

Emphasizing that its decision is a narrow one, the Second Circuit panel underlined that they are not suggesting that the educators were owed any religious accommodation.

“In sum, the relief afforded by the Motions Panel appropriately balances the equities by ensuring that Plaintiffs are not terminated or forced to waive their right to sue as the City reconsiders their requests for religious accommodation while, at the same time, the Vaccine Mandate, which is designed to further the compelling objective of permitting schools fully to reopen, continues in effect,” says the order from U.S. Circuit Judges Debra Livingston, Amalya Kearse and Eunice Lee.

Livingston, Kearse and Lee are Bush, Carter and Biden appointees, respectively.

Barry Black, an attorney who represents five of the vaccine-opposed educators, focused on the “constitutional irregularities” that the panel flagged, saying the court's decision should be considered a big win.

Believing, however, that there are thousands of New York City educators who would have qualified for a religious exemption that they did not get, Black also said the court’s relief should have been broader.

Black said they are considering an appeal to the U.S. Supreme Court as the matter is remanded to the district court for a closed-door process — “which one hopes would be implemented in a constitutionally sound manner,” the attorney added — to reevaluate the requests for accommodation.

The New York City Law Department did not return a request for comment.

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