Orthodox School Sues Education Department Over Right to Exclude Non-Vaccinated Students

NEW YORK -

The Shulamith School for Girls in Cedarhurst has found itself locked in a unique legal battle with the New York State Education Department over its decision that a pair of unvaccinated students must remain at home until their parents agree to immunize them.

The case rings with a note of irony as, amid the ongoing measles outbreak, many schools have been under tight scrutiny regarding the admission of non-vaccinated children. Yet in this instance it is the state itself ordering the school to open its students to greater risk of infection. The case also raises timely legal questions about the extent to which government can adjudicate matters deemed religious in nature, as well as the legitimacy of “religious exemptions” as a means of parents opting out of vaccination requirements.

For some time, and increasingly as the measles outbreak has grown over the past year, many Jewish schools have long wanted to limit admission to vaccinated students only, making exceptions only for those students who have medical dispensations.

A key element of Shulamith’s argument is that, since most Rabbanim hold vaccination to be an imperative according to halachah, the “religious exemption” the family in question is invoking lacks legitimacy, and the school should not be bound to honor it.

Attorney Philip Kalban of Putney, Twombly, Hall & Hirson LLP, who is representing Shulamith, told Hamodia that the case could pave the way for Jewish schools to gain more latitude in denying entry to unvaccinated children.

“If we can prevail on the state that, based on various psukim, we regard the need to vaccinate as a matter of Jewish law which cannot be challenged, that would be an important decision for the entire community of Jewish day schools,” he said.

The issue dates back to October 2017, when Shulamith said that it would not honor the family’s claim to a religious exemption and that the family would have to show a plan to have their children vaccinated if they were to remain in the school. The family appealed the matter to the state’s Education Department (NYSED), which ruled on the side of the parents.

This past October, Shulamith challenged the decision, explaining that, as an Orthodox school they were bound to observe halachah, and that their rabbinic authorities require vaccination. The matter was put for review by the department’s legal board, and a temporary stay was issued to allow the girls to remain in class while the claims were considered.

The school appealed in order to bar the students from extracurricular activities, but this too was denied by the NYSED.

On May 28, the school was scheduled to hold a “Night of the Arts” for students and families. In light of the ongoing outbreak and likelihood that expectant mothers, elderly people, and others for whom measles can potentially bring dangerous complications would be present, the school asked the family in question to refrain from bringing their children to the event. The request was in turn challenged to the NYSED, which once again upheld the children’s right to attend.

Believing that the presence of these children could pose a serious health risk, Shulamith brought the case before a Federal court, and in the meantime asked for a temporary order enforcing the school’s position regarding the students’ evening event.

The order was granted by Judge Pamela Chen, but the larger matter remains dually before the court and NYSED.

A key point in Shulamith’s argument is that, because the dispute pits the school’s religious beliefs regarding vaccination against the parents’ purported reason for an exemption, a state agency should be precluded form deciding the matter based on what is known as the Church Autonomy Doctrine. The common-law term is often applied to keep courts or government from deciding disputes that are religious in nature.

“The constitution prevents secular courts from interfering with religion,” said Mr. Kalban. “We have a number of arguments which justify our decision, but our position is that the Commissioner should not have gotten involved in the first place.”

A point that could potentially have further reaching effects is the school’s denial of the legitimacy of the parent’s claim to a religious exemption, telling the court that they do not believe the family’s actions are motivated by “genuine and sincerely held religious beliefs.”

“We are not imputing any ill will or evil motivations on the part of these parents, and I think that their beliefs are sincere, just not sincerely based on Jewish law. If anything, it’s just the opposite; we submitted to the Commissioner several letters and statements from Rabbis mandating vaccinations,” said Mr. Kalban.”

As the measles outbreak has spread, exceeding more than 1000 cases nationwide, most of them stemming from the New York area’s Orthodox community, the religious exemption has come increasingly under fire. A bill that would do away with it is currently pending in the New York State legislature.

While advocates of the Orthodox community are strongly supportive of the institution of legal religious exemptions, many feel that the their use to exempt from mandated vaccination both weakens other faith related dispensations and in puts schools who feel a responsibility to protect students from illness in a precarious position.

“Religious exemptions have become a cottage industry for anti-vaxxers and we would like to see the state step up to the plate and stop this dangerous trend,” said Mr. Kalban. “This isn’t just about measles, but small pox and polio and other terrible diseases that we do not want to see a return of.”

Starting in the fall 2018 and increasing in subsequent months, as the numbers of measles cases rose, schools in several areas of New York City and Rockland County were ordered to exclude unvaccinated students from attending classes. No outbreak has occurred in Nassau County, where Shulamis is located, and as such no orders to exclude have been given by authorities there.

In April, following a spike in cases in Williamsburg, schools there were asked to produce large amounts of documentation showing compliance with the city’s orders.

While community leaders and the largely Satmar network of schools strongly encourage vaccination, the high demands for paperwork from several departments posed a challenge to many institutions who were unable to comply on short notice and as a result several were temporarily closed.

State law dictates that every student must be vaccinated to attend classes, but makes exceptions for reasons of health or religious beliefs. However, in the event of an outbreak, the Health Department is given discretion to dispense with such exceptions.

Attorney Joseph Aron, who has written on legal issues regarding schools and vaccination exemptions, said that the discrepancy between NYSED’s actions and those of other government bodies are based on in-action from local and state health authorities.

“This is not a judgement call by the Department of Education, they’re just a cog in a big machine that has no choice but to follow the health department’s lead and if the exemptions are not suspended, there’s nothing they can do,” he told Hamodia.

It is expected that a decision from Education Commissioner MaryEllen Elia will be issued in the coming months which will likely either necessitate significant changes in the court challenge or render it moot.

Mr. Aron hoped that health authorities would support Shulamith’s position and that of likeminded schools before then.

“At the end of the day yeshivos don’t want to get sued either by anti-vax parents or if a student chas v’shalom gets seriously sick and claims the school did not tell them that there were unvaccinated kids in the school, but they’re being put in a terrible position,” he said. “You have schools like Shulamith not being allowed to crack down on immunization and then when there’s a real problem you have schools getting shut down. You’d think it’s time for the health department to take the lead and back them up before an outbreak happens.”