The Case of Kane v City of New York is Over After the US Supreme Court Denies Certiori

25-126 KANE, MICHAEL, ET AL. V. NEW YORK, NY, ET AL.

************************************************************************************

Here is the backstory of this case:

About 2,900 New York City workers who were fired for violating the city’s COVID-19 vaccine mandate, including workers denied religious exemptions, could return to their jobs under a plan Mayor Eric Adams announced this month. The plan doesn’t include back pay.

Meanwhile, New York City educators who sued the city for allegedly denying their religious exemptions unjustly are awaiting a decision from the U.S. Supreme Court on whether it will hear their case.

John Bursch, lead attorney for Kane v. City of New York, told The Defender the Supreme Court should hear the case so it can end what he called “denominational discrimination.” Bursch said the case is about “whether the government can play denominational favorites when granting religious exemptions.”

New York City gave COVID-19 vaccine exemptions to Christian Scientists and other educators affiliated with “recognized” religions that “publicly” opposed vaccination, Bursch said.

“But NYC educators with ‘personal’ religious beliefs or those whose faith leader — like Pope Francis — had publicly endorsed the vaccine were forced to prove that an accommodation would not be an undue hardship to the city and were nearly always denied,” he said.

The Supreme Court justices on Dec. 5 will discuss whether to review the case. They could announce their decision as early as Dec. 8, or sometime in January 2026, Bursch said.

The lawsuit was initially filed in 2021 as Kane v. Blasio by attorney Sujata Gibson, shortly after then-Mayor Bill de Blasio announced the COVID-19 vaccine mandates and the city denied employees’ requests for religious accommodations.

The case brought together nearly a dozen New York City educators whose religious exemptions were denied by the city. Michael Kane, a former special education teacher in New York City who founded Teachers For Choice and is now Children’s Health Defense’s (CHD) director of advocacy, is the lead plaintiff.

CHD is funding the lawsuit.

In July, Kane and his co-plaintiffs asked the U.S. Supreme Court to hear the case after the U.S. Court of Appeals for the 2nd Circuit in November 2024 ruled against most of them.

The city’s discrimination against those with personalized religious beliefs was “grotesque,” Kane said. “I was raised in a home of Catholicism and Buddhism. New York City’s attorney said to my face that since the Dalai Lama is vaccinated and the Pope recommends vaccination, I had no rational basis to avoid the vaccine on religious grounds.”

Officials can’t have ‘unchecked discretion to decide whose religious faith is worthy of protection’

Kane wrote in a Nov. 21 Substack post that he was “extremely happy and somewhat surprised” to discover that two religious liberty organizations — Pacific Justice Institute and the Lorica Institute — filed amicus briefs urging the Supreme Court to hear the teachers’ case against the city.

Gibson said she hopes the Supreme Court will hear the case so it can hold New York City officials accountable for the city’s “unconstitutional two-track system” for religious exemption requests.

She said the city followed one set of rules for employees in faith groups that publicly opposed vaccination and another set for employees in other faith groups. “Catholics were literally told that though they had sincere beliefs, they could not be accommodated as their Christian Scientists colleagues were.”

The Supreme Court needs to affirm that “government officials cannot be given unchecked discretion to decide whose religious faith is worthy of protection,” Gibson added.

City’s reinstatement offer ‘appreciated’ but ‘woefully incomplete justice’

Kane v. City of New York is one of several lawsuits filed against New York City on behalf of unvaccinated employees who were denied religious exemptions.

On Nov. 5, New York City published a notice about a proposed rule that would allow teachers, firefighters and other city employees who were fired for refusing to comply with the city’s COVID-19 vaccine mandate to apply for reinstatement.

Under the plan, former employees would be allowed to regain their old titles and their former salaries — but wouldn’t receive back pay, the mayor’s office told Gothamist, a local news outlet. Some workers are seeking back pay through ongoing litigation with New York City.

City Hall later told Gothamist that it wouldn’t require former employees to sign a waiver forfeiting their rights to sue the city.

Kane told The Defender the city’s offer was a “partial victory.” Although it didn’t include back pay, the reinstatement plan gives people “a path back to life” and lets them continue their legal challenges against the city.

Kane wrote in a Nov. 25 Substack post that employees must email the city by Dec. 5 to apply for reinstatement.

The city’s offer to reinstate fired workers without backpay is “appreciated” but “woefully incomplete justice,” Gibson said. “These workers lost wages, seniority and benefits due to an unconstitutional act, and we will continue fighting for their full financial and professional restoration.”

Kane also cited the devastation that the COVID-19 vaccine mandate caused for those who refused the shot.

“ I know people who were made homeless because of this mandate,” he told Gothamist. Others were forced to live out of their car, or deplete their retirement funds. Marriages were ruined.

The Citywide Panel and the Final Judgment in Kane-Keil-New Yorkers For Religious Liberty

New York State Court of Appeals Issues a Long-Awaited Decision in Kane/Keil Cases For Religious Freedom

Michael Kane, et al. File Federal Case in Opposition to New York State Vaccine Mandate

Will The United States Supreme Court Rule on COVID Vaccine Mandates?

Judge Ralph Porzio Orders 10 Petitioners in DiCapua v City of NY Back To Work With Backpay and Grants Their Religious Exemptions

The New York City Department of Education, UFT, Problem Code, and Perpetual Fog Machine Continue To Prevent Unvaxxed Employees From Working

City Will Enforce the COVID Mandate Ban For Current PBA Members, But Those Who Are Already Terminated or on Leave Without Pay Are Out of Luck

Judge Lyle Frank in NYS Supreme Court Rules Vaccine Mandate Invalid For PBA Members

Mayor Adams Ends Mandate For Private Companies and Students’ Extra-Curricular Activities, But Not City Workers

Mayor Adams Unfairly Grants Exemptions To His COVID Vaccine Mandate But Not To NYC DOE Employees

Martin Scheinman and the COVID Vaccine Mandate

Matthew Keil et al., v The City of New York, et al.

My opinion is that the lawyers – all brilliant and amazing – were not aware of the particulars of obtaining accommodations in New York City. And, none knew about the NYC Department of Education’s Problem Code, which makes the DOE guilty of denying due process to all educators. I will write an Editorial soon on this, and I will include some new information in cases for which I am a consultant in Federal Court.

Betsy Combier

betsy@advocatz.com