NYC Teachers “Open a Door” to Justice in Religious Exemption to Vaccination Case

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Second Circuit Federal Court Grants Partial Injunction to NYC Educators

KANE vs DE BLASIO / KEIL vs NYC

by Michael Kane

11-15-21

We still have a long way to go fighting this case – please consider donating to it HERE

The Second Circuit Court of Appeals has issued a partial injunction to 15 educators who were placed on unpaid leave by the New York City Department of Education (NYC DOE) when their religious exemptions to vaccination were denied. The Court did not order that educators be reinstated to their jobs yet, but rather that they will be allowed to apply for their religious exemption again through a new process that does not violate the Constitution. This injunctive relief is only temporary pending an emergency hearing that will be held on the merits of two cases before the Court which is scheduled for November 22nd.

Read the full Court order here.

Nevertheless this is a gigantic win for NYC educators! If it is good enough for 15 plaintiffs, it is good enough for 1,500, possibly many more, who were also denied their Constitutional rights to a religious exemption to vaccination!

The case KANE vs DE BLASIO is being argued by attorney Sujata Gibson and is sponsored by Children’s Health Defense, CHD NY and Teachers for Choice. The case is now joined in court by a second petition making similar arguments called KEIL vs NYC, represented by attorney Barry Black of the Park Ave. law firm Nelson Madden Black, and sponsored by the organization Educators for Freedom.

The hearing was held remotely on November 11, 2021, however on that day plaintiffs, activists, religious leaders and concerned citizens held a prayer vigil at Foley Square in front of the Thurgood Marshall courthouse where the Court normally convenes. The people were led in prayer while religious leaders and plaintiffs gave testimony about their sincerely held religious beliefs. The remote hearing was streamed in the park and hundreds of people listened to the preceding through a sound system outside. Some went across the street to the courthouse itself and laid their hands upon it while praying for justice. Video of the prayer vigil and speakers streamed live on Instagram.

“A door was opened today in court that was previously closed,” said Sujata Gibson on a phone call that was amplified in the park at Foley Square as the crowd cheered in approval.

Watch religious leaders speak and pray here – https://www.instagram.com/p/CWGxp6jF7-T/

Watch the press conference after the hearing here – https://www.instagram.com/p/CWHC1Tslf-x/

Court Hearing

During the November 11th hearing the attorney representing NYC stated they would not oppose a restraining order for the 15 named plaintiffs. The city agreed that the date NYC DOE employees must waive their rights to sue, as well as their termination date, would be stayed only for the named plaintiffs pending a redetermination of their appeal request. You can listen to the entire court hearing by clicking here.

(Click on the year “2021” and then on the case KANE vs DE BLASIO to listen to the hearing or download the audio file).

During the hearing the Court asked the following of the NYC DOE attorney:

“What if we were to issue an order that temporarily pending any decision by the merits panel…the application of the arbitrators award to the individual plaintiffs whose cases are before the court is stayed to the extent that they claim entitlement to a religious exemption which has been denied.”

The NYC DOE attorney responded: “I think that would appropriately narrow the relief to the claims that are before this panel that have been substantiated in the declarations before the court.”

What this means is that – in open court and on the record – New York City admitted the religious exemption process they utilized had unconstitutional aspects as it relates to the named plaintiffs in the cases KANE vs. DE BLASIO and KEIL vs. NYC. After the hearing at the press conference Attorney Black stated this is a “concession that you rarely achieve” from opposition in open court.

During the hearing Attorney Black directed the justices to note that the city’s process for approving religious exemptions to vaccination was discriminatory to everyone who applied, not just the 15 plaintiffs before the Court, and therefore any injunctive relief should be applied to every employee that was denied a religious exemption to vaccination. Subsequently Black and Gibson are amending their petitions to be class action lawsuits, which would broaden the relief to include hundreds, if not thousands of NYC DOE employees denied their Constitutional rights to a fair process for religious exemption. This would include all NYC DOE employees – teachers, paraprofessionals, school aides, principals, administrative staff, etc…

Attorney Sujata Gibson stated in the Court hearing, “We cannot protect public health by discriminating against minority religious viewpoints.” Gibson argued the city of New York did not properly offer the least restrictive means to protect public health, and that all plaintiffs should be reinstated to their positions.

When asked by the Court for specifics on how many religious exemptions to vaccination were applied for, the City’s attorney stated “thousands” were applied for, of those 1500 appealed, and of those 10% were granted. Implicit in this statement is that of the “thousands” who applied, every single religious exemption to vaccination was initially denied, and those who appealed had only a 10% success rate.

This means approximately 1350 NYC educators applied for a religious exemption, were initially denied, appealed, and were denied on appeal. Some of those were allowed to have Zoom hearings in the appeal process while others were flatly denied.

So the obvious question before the Court remains – why do 15 educators get a “do-over” of the religious exemption process but not the 1350 who were also denied due to an unconstitutional process?