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Vaccine mandate is extreme but so is Covid. Will NYC schools mandate survive appeal?

An attorney for the teachers called the vaccine mandate the “ultimate intrusion,” arguing that the lower death rate in children should be a factor in blocking it.

MANHATTAN (CN) — Hearing arguments from a group of New York City teachers claiming that the citywide Covid-19 vaccine mandate violates their constitutional rights, a Second Circuit panel weighed the mandate against the risk of the deadly pandemic to teachers, students and the community.

New York City Mayor Bill de Blasio instituted the mandate in September. Any teachers or school staff who refuse vaccination are not welcome back. They may take unpaid leave and keep their health insurance benefits for the school year, but they lose those benefits if they find work in other school districts. 

Staten Island-based attorney Louis Gelormino argued on Tuesday that working for the city is different than other school districts, and said teachers seeking religious or medical exemptions should be offered a choice as to whether they can get vaccinated. 

“Can we require you to wear a mask to come in here and practice your profession?” U.S. Circuit Judge Robert D. Sack, a Clinton appointee, asked Gelormino. 

“This isn’t an infringement. This isn’t going into my body,” the attorney replied, noting that he “would have a problem” had he been asked to get vaccinated before appeared in court. 

“I’m fully vaccinated,” Gelormino quickly clarified. He said that's the case for most teachers, too — they aren’t anti-vax but anti-mandate. 

Gelormino cited the 1905 decision in smallpox vaccine case Jacobson v. Massachusetts, which upheld the state’s ability to enforce a vaccine mandate. But there’s a key difference, Gelormino argued. 

“Jacobson was given a choice: either pay a fine or take the vaccine,” he said. “All we’re asking for is a choice, a simple choice.” 

The teachers are appealing after U.S. District Judge Brian M. Cogan denied them an injunction, saying the mandate does not implicate any fundamental right for teachers to pursue their profession since other opportunities for them exist. In addition to private schools in the city and public or private schools outside of the city, Cogan said day cares, tutoring centers or virtual institutions are possible sources of employment. 

“Ultimately, even if plaintiffs disagree with it, the Order at issue represents a rational policy decision surrounding how best to protect children during a global pandemic,” Cogan wrote in the 12-page order. 

But those other jobs don’t compare to the prestige of teaching in New York City public schools, which require a master’s degree that can cost upwards of $200,000, Gelormino argued on Thursday. 

“The New York City school system is pretty much the only game in town here,” he said. 

U.S. Circuit Judge Susan L. Carney called the unprecedented nature of the vaccine mandate a given. 

“I think everyone agrees, Judge Cogan agrees, it’s a requirement and an ask by the government that is really unlike any other,” the Obama appointee said. But, “even recognizing how intrusive it is to ask someone to put something in their body," she added, case law did not support applying strict scrutiny to the situation. 

Rounding out the panel was U.S. Circuit Judge John M. Walker Jr., a George H.W. Bush appointee. Addressing New York City’s attorney, he called the vaccine mandate a coercion technique. 

“It’s rough stuff, but that’s what’s going on here, isn’t it?” Walker asked.

Susan Paulson from the city’s law department disagreed, saying the measure was only to ensure the safest possible environment for the systems’ roughly 1 million students. 

“They’re choosing to retain the public school teachers who agree to be vaccinated in order to protect the children,” Paulson said, adding that the city had “zero interest” in losing its committed career teachers. 

Asked by the judges whether there would be some remedy in place for teachers who refused vaccination and couldn’t work to keep their health benefits, Paulson said she believed the court would have the authority to order back pay from the schools in the future. 

Gelormino said, as a father himself, he did not want to minimize the risk to children, but argued that the court should consider the lower death rate of Covid-19 in children as compared with adults. 

Previous vaccine mandates for children were tested for some time before they were instated, he said: “They weren’t mandated one month after the FDA approved it.” 

“This is the ultimate intrusion,” Gelormino said, “and to me, that shocks the conscience.” 

Gelormino did not respond to a request for comment on Thursday morning, nor did de Blasio’s office. 

The named plaintiff, Rachel Maniscalco, filed the lawsuit as a federal class action in Brooklyn but a class has not been certified.

In the same court on Tuesday, Judge Cogan denied yet another request to enjoin the mandate, this time from a group of restaurant owners. 

Also on Tuesday, a different group of teachers who filed a federal challenge in Manhattan had a setback of their own when U.S. District Judge Valerie Caproni denied a preliminary injunction in a bench ruling.

One case to have gained traction is a request in the Northern District of New York from a group of health care workers. U.S. District Judge David Hurd agreed to convert a temporary restraining order from September into a preliminary injunction. The plaintiffs in that case seek religious exemption from the statewide health care worker vaccine mandate, since the vaccines were developed with the help of a cell line originally taken from an aborted fetus decades ago.

Governor Kathy Hochul plans to appeal the ruling.

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