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While a lawsuit filed by unvaccinated New York City teachers challenging their firing on constitutional grounds remains pending before the 2nd U.S. Circuit Court of Appeals, some of the same teachers have now filed a new lawsuit against the city — this time claiming the state constitution was violated on the basis of freedom of religion rights.
The lawsuit was filed Monday in New York State Supreme Court in Staten Island by Teachers For Choice and plaintiffs from Kane v. de Blasio, sponsored, in part, by Children’s Health Defense (CHD) and CHD-NY.
Kane v. de Blasio, in turn, has been combined into New Yorkers for Religious Liberty, Inc. v. The City of New York, the case currently before the 2nd Circuit. That case is challenging the near-blanket denial of religious exemption requests by teachers, on federal constitutional grounds.
Sujata Gibson, the lawyer for the plaintiffs who is also one of the attorneys arguing the 2nd Circuit case, explained the rationale behind this new legal challenge in remarks shared with The Defender:
“The case addresses the widespread religious discrimination by the New York City Department of Education [DOE] and New York City in implementing their vaccine mandates. It is a proposed class action lawsuit.
“The federal court declined to exercise jurisdiction over the state law claims, so we brought the state law claims in state court.”
Class action status is sought “to get relief for every DOE employee and contractor that was denied reasonable religious accommodation under the discriminatory policies,” added Gibson.
Michael Kane, national grassroots organizer for CHD and founder of Teachers For Choice, is one of the 14 New York City educators who are plaintiffs in the new lawsuit. He told The Defender:
“All of us had our statute of limitations for all state claims paused back in October 2021 when we went to federal court.
“It makes us ideal plaintiffs, because anyone who hasn’t filed a case yet at this point has passed their statute of limitations.”
Gibson told The Defender the plaintiffs are seeking “Reinstatement, restoration of pay, benefits, seniority and pension credits as if there were no break in service, back pay and compensation for other damages incurred.”
In remarks to New York City’s PIX11 News, Kane said “What we’re looking for is our jobs back … and possibly pain and suffering. This has been really, really tough.”
Last week, New York City Mayor Eric Adams announced that the city was rescinding its vaccine mandate for municipal employees. However, those city workers who were fired as a result of not receiving the COVID-19 vaccine will not be automatically reinstated. Instead, they have simply been told they can reapply for employment with the city.
Gibson told The Defender that the withdrawal of the city’s vaccine mandate makes no difference for those teachers and DOE employees who were fired due to their unvaccinated status.
“It doesn’t change anything,” she said. “New York City’s discriminatory policies ruined a lot of lives and they need to make amends and understand that this cannot happen again.”
In turn, Kane told The Defender that even reapplying is not a straightforward process.
“In order to return to our jobs, Mayor Adams says we must sign waivers: waive our rights to back pay, our rights to sue, and our �?civil service rights,’” he said. “That last one, no one seems to know what it even means, or what the precise definition is of �?civil service rights.’”
Gibson told PIX11, “What we’re seeing is widespread religious accommodation discrimination.”
She added that the rules the city is applying to the unvaccinated teachers “also violate the New York State Constitution, the New York state human rights law and the New York City human rights law.”
Kane made similar remarks, telling The Defender the new lawsuit differs in that:
“We are not making federal constitutional claims — we are not claiming that our First Amendment rights were violated.
“We are saying our rights to practice freedom of religion under the New York State Constitution were violated, as well as New York State human rights law violations.”
Potentially further complicating matters for those unvaccinated teachers seeking to reapply for positions, it was revealed during last week’s 2nd Circuit hearing that the fingerprints and other biometric data of unvaccinated teachers were sent to the FBI by the DOE, which also placed a “problem code” in these teachers’ employment files.
Unvaccinated New York City teachers were reportedly “flagged” with “problem codes” and their fingerprints sent to the FBI, according to an affidavit filed in federal court last week.https://t.co/FwuUC4TL96
— Robert F. Kennedy Jr (@RobertKennedyJr) February 15, 2023
Gibson described this revelation as “just one more example of the ongoing harm these teachers face from the city’s discrimination and retaliation against most religious employees.”
Remarking on the new lawsuit, a spokesperson for the New York City Law Department said in a statement: “Numerous courts have upheld the city’s vaccine mandate and its process for granting reasonable accommodations to employees. We’ll review this new case once we are served.”
As The Defender reported in November 2021, every request for a religious exemption filed with the city was initially denied, and only 10% were granted on appeal.
This meant, at the time, that “approximately 1,350 New York City 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.”
According to PIX11, the new lawsuit is based, in part, on a similar lawsuit filed by 16 New York City sanitation workers. Those workers won their lawsuit, though the decision is now being appealed by the city.
Parents of New York City public school students quoted by PIX11 appeared to express support for the teachers and their new lawsuit.
Patrick Van Rosendaal, a parent of a student attending P.S./I.S. 78 in Long Island City, told PIX11, “[For] everyone, freedom of choice.”
Another parent at the same school, Luciana Camhaji, told PIX11 “I think that’s great that [the teachers are] being given a chance to come back. It’s a shame they had to leave in the first place.”
Kane told The Defender that these continued court cases and revelations have given the plaintiffs “excellent momentum.” He said:
“We have excellent momentum in New York City right now. It really does feel like the dominoes have been set into motion and it is really a matter of time now.”