WE WON IN COURT!

Second Circuit Vacates Lower Court – Plaintiffs Can Reapply for Religious Exemption in NYC Schools

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If you are an NYC Educator on Unpaid Leave, What Are Your Next Steps?

from Michael Kane

11-29-21

The 2nd Circuit Court of Appeals has ruled that NYC Educators denied a religious exemption to vaccination and placed on unpaid leave must be allowed to apply again for an exemption under a new process. They denied a formal court order extending this relief to everyone BUT that was in large part because the DOE has promised to extend this relief to other DOE employees and has begun to do so.

So, what should you do now?

THIS IS NOT LEGAL ADVICE. EVERYONE’S SITUATION IS DIFFERENT AND MUST BE CAREFULLY CONSIDERED.

First and foremost we believe it is a mistake to sign any waiver with the NYC DOE. If you sign a waiver now, you are waiving your rights to sue the NYC DOE. This could even prevent you from successfully filing an EEOC complaint. Some people may feel they have no choice but to sign the waiver now for various reasons and we completely respect that. We do not think this is the best option.

Here are options we put forth that will at least allow you to maintain your right to sue the NYC DOE

OPTION 1 — If you have gotten an email from the NYC DOE saying you can “reapply” or “appeal” your denied religious exemption, we currently do not see the harm in doing so. If you reapply one of the immediate benefits is that the deadline for you is moved from November 30th until seven days after your process is finished.

OPTION 2 — If you have NOT gotten an email from the NYC DOE saying you can “reapply” or “appeal” your denied religious exemption, first check your SOLAS account to see if the option is there for you. If it is there for you, follow what we said in point #1

OPTION 3 — If you have NOT gotten an email, and you do not see the option in SOLAS, you can send the letter we have suggested for you to send below demanding that you are immediately given the option to “reapply” or “appeal” your denied religious exemption

OPTION 4 — if you have never applied for a religious exemption to vaccination, but now realize you want to apply, you too should send a correctly edited version of the below email to put the NYC DOE on notice that you are demanding the right to apply for a religious exemption.

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LETTER TO NYC DOE

If you applied for a religious exemption to vaccination with the NYC DOE and were denied, or you WANT to send one in but did not do so yet, you should consider sending this letter to the below email addresses we have provided to you.

Below we have a legally-reviewed boiler-plate letter that you can modify slightly and send to the following email addresses:

• Email the letter to:  

dhc@schools.nyc.gov; bdeblasio@cityhall.nyc.gov; nycchancellor@schools.nyc.gov; gpestana@law.nyc.gov; dave.chokshi@nychhc.org; asklegal@schools.nyc.gov; JNathan@schools.nyc.gov;

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SUBJECT – Renewed Application for Religious Exemption

Dear Sir or Madam,

[SELECT ONE OF THE FIRST THREE PARAGRAPHS [either (a) (b) or (c)] TO BE THE LEAD PARAGRAPH OF YOUR LETTER AND DELETE THE OTHER TWO]

(a) Use this paragraph if you applied, were denied, appealed and were denied again.

My name is __________.  I have been a New York City Department of Education employee since _____.  On [date] my religious exemption application to the DOE’s Vaccine Mandate was denied, and my appeal of that denial was denied on [date].  I struggle every day with the impending November 30 deadline by which I will need to choose between my faith and my job.

(b) Use this paragraph if you applied, were denied, and did not appeal.

My name is __________.  I have been a New York City Department of Education employee since _____.  On [date] my religious exemption application to the DOE’s Vaccine Mandate was denied.  I chose not to appeal the denial because my personal religious beliefs did not match the requirements of the standards that were set forth in the application and appeal process, so I concluded an appeal would be futile.  I struggle every day with the impending November 30 deadline by which I will need to choose between my faith and my job.

(c) Use this paragraph if you did not apply.

My name is __________.  I have been a New York City Department of Education employee since _____.  I chose not to apply for religious exemption because my personal religious beliefs did not match the requirements of the standards that were set forth in the application process, so I concluded an application would be futile.  I struggle every day with the impending November 30 deadline by which I will need to choose between my faith and my job.

In the Kane v. DeBlasio and Keil v. City of New York, cases now pending before the United States Court of Appeals for the Second Circuit, the Defendants have conceded that the process and standards they had used to consider religious exemption applications and appeals were “constitutionally suspect” and proposed an alternative process with purportedly constitutional standards.  Accordingly, the Court ordered the Plaintiffs to be reassessed under this alternative process.

Since my application and appeal were also considered under the same admittedly unconstitutional process, I hereby demand an immediate reexamination of my application under a fair, constitutionally sound process. I trust this renewed assessment will result in an exemption, since I know my religious beliefs to be demonstrably, wholly, and unequivocally sincere. 

Kindly respond to this email as soon as possible.  I have already been significantly damaged and your expedient attention to this matter will avoid further injury.  Any delay will continue to compromise my faith in a manner that is unfair, unbearable, and entirely unconstitutional. 

I thank you kindly in advance for your prompt attention to this request and look forward to receiving my religious exemption.

Most sincerely,

(write your name, address contact info)