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NYC Teachers’ Religious Challenge to Vaccine Mandate Revived (2)

Nov. 29, 2021, 1:29 PMUpdated: Nov. 29, 2021, 4:51 PM

Fifteen New York City public school teachers and administrators must have their requests for religious accommodations from the city’s Covid-19 vaccine mandate reconsidered because the mandate may violate their First Amendment rights, the Second Circuit ruled.

The decision Sunday leaves in place temporary relief that stayed the deadline for the 15 workers to opt into the extended leave program the city offers for those who refuse to be vaccinated while their accommodation requests are reheard under the standards set forth in Title VII of the 1964 Civil Rights Act. The extended leave program is without pay and requires workers denied a religious or other accommodation to waive their right to challenge the involuntary resignations that result from their refusal to be vaccinated.

The city consented to the reassessments on consolidated appeals in two cases during proceedings before a motions panel, the U.S. Court of Appeals for the Second Circuit merits panel said. The city conceded to the motions panel that the standard set by an arbitrator for reviewing religious-based accommodation requests from the mandate are “constitutionally suspect,” it said.

“We confirm” that suspicion, the merits panel said.

It expressed “grave doubts” that the arbitrator’s accommodation standard is consistent with the “bedrock First Amendment principle” that a government can’t impose rules that are hostile to religious beliefs or act in a manner that passes judgment on or presupposes that certain religious views or practices are illegitimate.

According to the arbitrator’s order, exemption requests are only considered for recognized or established religious organizations, and requests will be denied where the leader of that religion has spoken publicly in favor of Covid-19 vaccination or where evidence shows a worker’s religious objection is merely political or personal.

That led to the denial of the accommodation request of one of the 15 workers because other members of his religion chose to get vaccinated, the court said.

But denying a religious accommodation request based on someone else’s publicly expressed views, “even the leader of her faith,” violates U.S. Supreme Court precedent barring consideration of the validity of a litigant’s religious beliefs, it said.

That means there’s a good chance the arbitrator’s standard isn’t neutral as applied to the 15 employees, the court said.

There’s also evidence it isn’t applied generally as at least one employee who identified as Roman Catholic was granted an exemption despite the Pope’s avowed support of Covid-19 vaccinations, the court said.

The city thus needed to show the arbitrator’s accommodation standard, as applied to the 15 workers, was the least restrictive means of meeting its compelling governmental interest of stopping Covid-19’s spread, the court said.

The standard’s criteria, including requiring an exemption applicant to produce a letter from a religious official, likely isn’t narrowly tailored to the city’s interest, the court said.

The threat of the immediate loss of their jobs if denied accommodation and thereafter refusing to get vaccinated or opt into extended leave by relinquishing their right to sue means the workers face the prospect of irreparable harm if the city isn’t stopped from imposing its deadline on the workers, the court said.

The workers aren’t necessarily entitled to their requested accommodation or any accommodation, the court said. But they “have demonstrated a likelihood of success on their claim” that the process the arbitrator set for the city to implement its vaccine mandate “offended the First Amendment,” the court said.

The court rejected the workers’ request that they be immediately reinstated in their jobs while their accommodation requests are given a fresh look under Title VII.

Remaining on leave without pay for another couple of weeks while that process plays out doesn’t amount to further irreparable harm, it said.

It also rejected their request to extend the preliminary injunctive relief to thousands of other similarly situated city Department of Education employees or contractors.

The 15 workers didn’t bring class actions, and allowing them to add other workers to their lawsuits would amount to “an end run around the rules governing class certification,” the court said.

A lower court was right that the workers failed to adequately back their alternative claim that the mandate is unconstitutional on its face, the court said.

Judges Debra Ann Livingston, Amalya L. Kearse, and Eunice C. Lee joined the opinion.

Sujata Sidhu Gibson of Ithaca, N.Y., and Nelson Madden Black LLP represent the workers. The New York City Department of Law represents the city, its education department, and individual city officials.

The case is Kane v. de Blasio, 2021 BL 453463, 2d Cir., No. 21-2678, 11/28/21 and Keil v. City of New York, 2d Cir., No. 21-2711, 11/28/21.

(Information on judges and attorneys added as paragrapsh 20 and 21 )

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Carmen Castro-Pagán at; Patrick L. Gregory at