There is so much new information available now as opposed to two years ago when the Kane Keil cases were filed. I wish the entire case – now known as New Yorkers For Religious Liberty – had been remanded back to the District Court, so that all the Plaintiffs could be given a chance to win their back pay and be compensated in full for what has destroyed their lives. As it stands now, however, almost all the Plaintiffs have lost their case to get back pay and their jobs back at least by the Court. Many teachers are, in fact, back to work at their original salary.
At least two arguments used by the City Law Department lawyers have been shot down after recent discoveries in the Courts and by super snoops, which I hope I am one.
The mandate itself was “absurd”, arbitrary, and capricious” (Judge Neri, Supreme Court) – see below.
In 2021, Dr. Jayanta Bhattacharya wrote about the COVID-19 virus and about how there did not have to be a mass termination of people who would not, could not, or did not get vaccinated. See his Declaration submitted in Kane v De Blasio in 2023, p. 25:
“In conclusion, the emerging evidence from the medical literature finds that COVID-recovered patients have robust and long lasting immunity against SARS-CoV-2 reinfection; that this immunity against infection is better than vaccinated patients who have never had COVID; that the vaccines—though safe for most people—do sometimes cause known severe side effects; that for patients with particular chronic conditions, including Multiple Sclerosis, the data on the safety and efficacy of the vaccine is still uncertain; that the development of the mRNA vaccines and the production of the adenovirus vector vaccines both involved the use of fetal tissue cell lines, to which some people have sincere religious objections; and finally that there exist inexpensive safe accommodations that the DOE can adopt which would protect both employees and customers against SARS-CoV-2 infection without terminating unvaccinated employees”
Here is the entire Declaration: Bhattacharya Declaration
See The Man Who Talked Back: Jay Bhattacharya On The Fight Against COVID Lockdowns
Here is the Affidavit of Dr. Harvey Risch: Dr. Harvey Risch AFFIDAVIT
And then there is the stunning deposition of Eric Eichenholtz, who formed the Citywide Panel (I put the transcript into four parts so I could upload to my website):
After reading the transcript cover to cover, my opinion is that Mr. Eichenholtz did not comply with an interactive dialogue with anyone, as required by Title VII, and, he seemed lost on the issue of accommodations and the costs of remote work. My opinion.
Read the Affirmation of Alan Deutsch from DCAS, about the COVID vaccine mandate:
Affirmation-ALLAN DEUTSCH-DCAS
the Affirmation of Eric Eichenholtz: EICHENHOLTZ AFFIDAVIT – CITYWIDE PANEL
Affidavit of Michael Melocowsky: MELOCOWSKY AFFIDAVIT (see p. 7, where Mr. Melocowsky wrote that NYPD employees are permitted 7 days to appeal their denial of a reasonable accommodation request, while City Guidelines required all employees to appeal within three business days. Did he make that up so his employees could benefit from this added time?)
and the Affirmation of FLORINA GETMAN: FLORINA GETMAN AFFIRMATION
and I love what Judge Gerard J. Neri wrote in his Decision in the case Medical Professionals For Informed Consent et al., v Mary T. Bassett, Index. No. 008575/2022:
“Arbitrary action is without sound basis in reason and is generally taken without regard to the Respondents acknowledge then-current COVID-19 shots do not prevent transmission (see Summary of Assessment of Public Comment, NYSCEF Doc. No.7, p. 25). The Mandate defines, in the loosest meaning of the word, “fully vaccinated” as determined by the Department in accordance with applicable federal guidelines and recommendations” (ibid). “[I]t is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning” (Gawron v. Town of Cheektowaga, 117 A.D.3d 1410, 1412 [Fourth Dept. 2014], citing Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577,583 [1998]). A term which is defined at the whim of an entity, subject to change without a moment’s notice contains all the hallmarks of “absurdity” and is no definition at all. In the alternative, the Court finds the Mandate is arbitrary and capricious.”
In his footnote 1 he wrote:
1 Absurdity -1) the quality or state of being absurd; 2) something that is absurd – https://www.merriam-webster.com/dictionary/absurdity
Absurd – 1) ridiculously unreasonable, unsound, or incongruous; 2) having no rational or orderly relationship to human life; 3) dealing with the absurd (the state or condition in which human beings exist in an irrational and meaningless universe and in which human life has no ultimate meaning) – https://www.merriam-webster.com/dictionary/absurd
if any reader knows Judge Neri, please tell him Betsy says “Thank you”!
After the plaintiffs in the case New Yorkers for Religious Liberty v. City of New York lost their Appeal (except for two of the Plaintiffs, Natalie Solon and Heather Clarke) at the Second Circuit Court of Appeals, their attorneys filed for a Decision of the whole Court, En banc.
New York State Court of Appeals Issues a Long-Awaited Decision in Kane/Keil Cases For Religious Freedom
Here is the Amended Judgment, issued January 10, 2025: AMENDED JUDGMENT
betsy@advocatz.com
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
New York Workers Denied Religious Exemptions From COVID Vaccine Mandates Weigh Next Steps After Appeals Court Sides With City
A federal appeals court last week ruled against most New York employees who sued the city for denying their COVID-19 vaccine mandate religious exemption requests — but the court did say the city may have violated the constitutional rights of two plaintiffs, opening the door to future claims.
A federal appeals court last week ruled against most New York City employees who sued the city after it denied their COVID-19 vaccine religious exemption requests.
However, the U.S. Court of Appeals for the 2nd Circuit also ruled the city may have violated the constitutional rights of two of the plaintiffs, whose cases it sent back to the lower court.
The ruling related to three lawsuits: New Yorkers for Religious Liberty v. City of New York, whose plaintiffs included firefighters, police officers, sanitation workers, teachers and other public employees; and Kane v. de Blasio and Keil v. City of New York, both brought by teachers and school administrators.
The first of the cases was filed in 2021, shortly after then-Mayor Bill de Blasio announced the COVID-19 vaccine mandates and the city denied employees’ petitions for religious accommodations.
The plaintiffs challenged the constitutionality of the city’s approach to applying its COVID-19 vaccine requirement for all Department of Education employees and other city employees, alleging the city violated their First Amendment Rights to the free exercise of religion.
“The 2nd Circuit’s decision to deny the plaintiffs’ claims is extremely disappointing, especially given the many recent awards in other federal courts to similarly situated plaintiffs whose religious exemptions were summarily denied without any attempt at reasonable accommodation,” Mary Holland, CEO of Children’s Health Defense (CHD) and co-counsel representing the plaintiffs in Kane v. de Blasio, told The Defender.
Holland added:
“New York City behaved egregiously towards its religious firefighters, teachers, sanitation workers and other staff members who requested accommodation. CHD and the other supporters of this critical coalition are considering our legal options — stay tuned.”
Sujata Gibson, attorney for the plaintiffs in the Kane and New Yorkers for Religious Liberty cases, said that although the ruling was not what they hoped for, the court’s decision to recognize the possible constitutional violations for two plaintiffs was important — and a big win.
She explained:
“What the 2nd Circuit did do is open a path and say that you can have a First Amendment claim over these firings, which is actually a pretty big victory.
“It’s not as big as we’d like it to be. I think it’s very clear that everybody in this lawsuit has First Amendment claims. But it does set a useful precedent that may help others.”
CHD provides support for both the Kane and the New Yorkers for Religious Liberty cases.
‘This case has vast significance’
Plaintiffs in each lawsuit alleged that New York City violated their fundamental religious and constitutional rights — and the rights of other similar employees — and discriminated against them by refusing to accommodate their sincere requests for religious exemption from the COVID-19 vaccine mandates.
They alleged that the city subjected them to processes that amounted to “unconstitutional heresy inquisitions” and religious harassment while assessing their claims and that de Blasio sanctioned and encouraged the discrimination.
Plaintiffs in the Kane and Keil cases first won an injunction in the 2nd Circuit in November 2021, based on the court’s ruling that the policy was discriminatory and violated their First Amendment rights.
At that time, the court ordered the city to convene a citywide panel to re-review the exemption requests, applying lawful standards.
“But it didn’t,” Gibson said, and most plaintiffs were still denied exemptions — with little explanation as to why. Plaintiffs filed a series of motions challenging the process.
The plaintiffs in the New Yorkers for Religious Liberty and Kane and Keil cases petitioned the court for different requests but raised similar constitutional questions, so the court heard the cases on a consolidated appeal.
New Yorkers for Religious Liberty plaintiffs sought an injunction against the mandate. However, ruling that the request was “moot” because the mandate had ended, the court sent the case back to the District Court to be heard on its merits.
The Kane and Keil plaintiffs challenged decisions by lower court’s dismissal fo their cases. They sought job reinstatement and back pay and damages for themselves and others similarly situated.
The court upheld the lower courts’ dismissals for all but two of the plaintiffs, Natasha Solon and Heather Clark, whose cases they sent back to the Southern District Court.
Solon’s appeal was reinstated because the citywide panel never bothered to issue her a decision. She was only reviewed under the original policy which the court affirmed was unconstitutional. Clark’s request was denied because the panel deemed it to be personal, not religious.
Gibson said aspects of the decision in Clark’s case were “frustrating” because they didn’t make sense. For example, many other plaintiffs were denied for the same reasons as Clark, but the court did not mention them in the ruling or provide any reasoning for why those cases would be treated differently.
Instead, she said, the court made sweeping conclusions with no reference to the data and factual allegations that plaintiffs had presented to the court.
Gibson added:
“These teachers were dedicated public servants who the 2nd Circuit already acknowledged were subjected to unlawful religious discrimination under the initial accommodation policy. At a minimum, they deserve their day in court, and at the very least, the 2nd Circuit was required to examine and explain why they were not entitled to the same relief as their co-workers whose cases prevailed on the second appeal.
“Ultimately, we believe that the teachers all clearly articulated First Amendment claims and that all their cases should have been reinstated. We will keep fighting to ensure their rights are not disregarded.
“This case has vast significance, not just to these teachers, but also to our core constitutional guarantees, which must be safeguarded for all our sakes.”
Michael Kane, former New York City educator and lead plaintiff in Kane v. de Blasio, told The Defender the decision was disappointing and that a lot of people in his camp “are really deflated right now.”
However, he said, the plaintiffs are considering their options. They could ask the entire 2nd Circuit to reconsider the case, or they could appeal to the U.S. Supreme Court.
Despite the decision, Kane said he is optimistic because this “isn’t just a legal case, this is about politics.”
He added:
“Over the past four years we’ve seen an unprecedented shift in public opinion and political reality around the civil rights issue of our time — medical freedom. It has completely flipped 180 degrees where 30% of people felt I had a right to have my job with my religious sincere beliefs intact when this first happened. It is now only 30% who believe I’m wrong. It’s split. The majority of the population is now on our side …
“So while this is a bad bump in the road for us, I am very bullishly optimistic in 2025 for what’s to come or all the fired workers.”
Many of the plaintiffs already won one case against the city in state court last year. A New York State Supreme Court judge ruled in September 2023 that 10 New York City teachers fired for refusing the COVID-19 vaccine on religious grounds must be reinstated with back pay, benefits, seniority and attorney fees effective immediately.
The state appealed the ruling.
Brenda Baletti, Ph.D.
Brenda Baletti, Ph.D., is a senior reporter for The Defender. She wrote and taught about capitalism and politics for 10 years in the writing program at Duke University. She holds a Ph.D. in human geography from the University of North Carolina at Chapel Hill and a master’s from the University of Texas at Austin.
