The New York City Department of Education’s COVID-19 vaccine mandate is not unconstitutional on its face, but the religious accommodation procedures of the mandate are likely unconstitutional and therefore warrant injunctive relief

New York



The Religious Accommodation Procedures of New York City’s COVID-19 Vaccine Mandate for Education Workers Warrants Limited Injunctive Relief On August 24, 2021, the New York City Commissioner of Health and Mental Hygiene issued an order requiring Department of Education (“DOE”) and/or New York City employees or contractors that work in DOE schools or DOE buildings to be vaccinated against COVID-19 or be placed on leave without pay. In Kane v. de Blasio, 21-2678 (2d Cir. Nov. 28, 2021), the United States Court of Appeals for the Second Circuit heard an appeal regarding the denial of preliminary injunctive relief in connection with COVID-19 vaccine mandates in New York City schools by teachers and school administrators who requested religious accommodations. Overview The United States Court of Appeals for the Second Circuit upheld the decision of the lower court ruling that the vaccine mandate does not violate the First Amendment on its face.However, the Court of Appeals held that the Plaintiffs had established their entitlement to preliminary injunctive relief on the ground that the procedures employed to assess their religious accommodation claims were likely unconstitutional. As a result, the Court continued the interim relief granted by the motions panel of the Court of Appeals, which enjoined the defendants from terminating the Plaintiffs or requiring them to opt into the extended leave program while their religious accommodation requests are reconsidered. The Vaccine Mandate The Court held that the vaccine mandate was not unconstitutional on its face and no injunction was warranted as the challenge to the vaccine mandate was not likely to succeed on the merits.In reaching this decision, the Court noted that the vaccine mandate is neutral and generally applicable. It applies to all DOE staff, City employees, and contractors of DOE and the City who work in DOE school settings. Therefore, the mandate does not single out employees who decline vaccination on religious grounds. Its restrictions apply equally to those who choose to remain unvaccinated for any reason (at 16-17). The mandate did not allow secularly motivated conduct to be favored over religiously motivated conduct (at 21).The Court went on to hold that rational basis review applied to the vaccine mandate. Rational basis review requires NYC to have chosen a means for addressing a legitimate goal that is rationally related to achieving that goal. The vaccine mandate plainly satisfied this standard (at 22). The Court ruled that the mandate is a reasonable exercise of the State’s power to act to protect public health and was made in accordance with CDC guidance (at 22).As a result, no injunctive relief with respect to the mandate itself was warranted. The Religious Accommodation Standards and Procedures The Court held that the religious accommodation procedures likely violated the First Amendment and that the plaintiffs sufficiently established a likelihood of success so as to meet this prong of the preliminary injunction standard (at 23).In reaching this decision, the Court held that the religious accommodation procedures applied to the plaintiffs were not neutral. The accommodation standards stated that (at 26):“[e]xemption requests shall be considered for recognized and established religious organizations” and that “requests shall be denied where the leader of the religious organization has spoken publicly in favor of the vaccine, where the documentation is readily available (e.g., from an online source), or where the objection is personal, political, or philosophical in nature.The Court noted that denying an individual a religious accommodation based on someone else’s publicly expressed religious views — even the leader of their faith — runs afoul of the Supreme Court’s holding that a court may not question the centrality of particular beliefs or practices of a faith or the validity of the particular litigants’ interpretations of those creeds (at 26-27).In addition, the procedures were not generally applicable to all those seeking religious accommodation. Sometimes, arbitrators strictly adhered to the religious accommodation standards. Other times, arbitrators apparently ignored them, such as by granting an exemption to an applicant who identified as a Roman Catholic, even though the Pope has expressed support for vaccination (at 29).Because the accommodation procedures were neither neutral nor generally applicable, the Court applied strict scrutiny for this stage of the analysis (at 27). Under strict scrutiny, these procedures are constitutional as applied only if they are narrowly tailored to serve a compelling state interest (at 29). Narrow tailoring requires the government to demonstrate that a policy is the least restrictive means of achieving its objective (at 30). The denial of religious accommodations based on the criteria outlined in the religious accommodation standards, such as whether an applicant can produce a letter from a religious official, is not narrowly tailored to serve the government’s interest in preventing the spread of COVID-19 (at 30).The Court held that the plaintiffs demonstrated that they would suffer irreparable harm absent the relief ordered by the Motions Panel. They were denied religious accommodations — pursuant to what the defendants conceded was a “constitutionally suspect” process — and were consequently threatened with imminent termination if they did not waive their right to sue. This is sufficient to show irreparable harm (at 29). The Court ordered that the injunction ordered by the Motions Panel enjoining the defendants from terminating the plaintiffs or requiring them to opt into the extended leave program while their religious accommodation requests are reconsidered was to remain in place during reconsideration of the plaintiffs’ renewed requests for religious accommodations (at 45).However, the Court denied the request for broader relief, specifically, an injunction immediately reinstating the plaintiffs and granting them backpay pending de novo consideration of their requests for religious accommodations (at 32). The Court held that the fact that the plaintiffs would continue to be on leave without pay while the defendants reconsider their requests for religious accommodations does not constitute irreparable harm in the circumstances because those harms could be remedied with money damages (at 33-35).

April 14, 2022
Kane v. de Blasio, 21-2678 (2d Cir. Nov. 28, 2021)
Federal Courts (2nd Circuit)