Plaintiffs Can Reapply for Religious Exemption in NYC Schools
DOE Promises to Make this Option Generally Available
by Michael Kane
In a unanimous opinion, 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. Read the Court’s full decision here.
The decision only applies to the 15 named plaintiffs in the cases KANE vs DE BLASIO and KEIL vs NYC, however the DOE promised the Court that they would be making this new review process widely available to other DOE employees. Over the past week the NYC DOE has been sending emails to many educators denied religious exemptions informing them they, too, can reapply for a religious exemption.
This is the second time in the past two weeks that the 2nd Circuit has ruled in favor of these plaintiffs, but this ruling is much more significant than the first. The first ruling which came down on November 13th was from a motions panel. This recent ruling came from a merits panel overseen by the Court’s Chief Justice Debra Ann Livingston which holds much more weight over the eventual outcome of the case. This new ruling officially overturns the ruling in the lower court that had previously denied any relief to the plaintiffs, which came from Judge Valerie Caproni in New York’s Southern District Federal Court.
“An important aspect of this ruling is that the Court acknowledged that the policy is likely to be found unconstitutional and that ‘strict scrutiny’ must be applied.” Said Sujata Gibson, as lead attorney for the Kane plaintiffs. “This is one of the first vaccine-related cases to receive strict scrutiny review and the next phases of this litigation could have significant impact. The government now has the burden to prove that they are using the least restrictive means to serve a compelling interest. With fundamental rights at stake, this should be the standard.”
The very few teachers granted religious exemptions to vaccination are still denied the right to enter their school buildings and are working at other placements. By opening up ‘strict scrutiny’ it is possible that the courts will have to analyze whether or not such segregation is necessary or if it effectively equates to government over-reach. Only time will tell if this matter will have it’s day placed squarely before the court.
Attorney Gibson noted that despite the favorable ruling, the fight is far from over. “There is a lot more work to do to ensure that the discrimination that occurred in New York City is rectified, not only for these fifteen plaintiffs, but for all similarly situated DOE employees. What happened in New York is not okay, and we need to ensure that it does not easily happen again. We’ve won a preliminary battle, but the real work now lies ahead.”