Parents Sue Brooklyn Yeshiva to Compel Admission of Unvaccinated Child; Here’s Why They Should Lose

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By Joey Aron, Esq.

Recent measles outbreaks in Jewish communities in the New York tri-state area have reminded us that the debate over vaccines – and whether parents should retain the right to choose not to vaccinate their children – is far from academic.

But even if the so-called anti-vax parents win that battle, what happens when the schools they wish to send their children to don’t want to admit them because of the risk posed to other students?  A case currently pending in Brooklyn Supreme Court will determine whether a yeshiva may bar admission of an unvaccinated child.

Shalom and Esther Laine brought suit against Yeshiva Oholei Torah after the school declined to admit their four-year-old son because he had not received his immunizations.  The parents had submitted a request to the school asking for a “religious exemption” under New York State’s Public Health Law.  That law requires all children entering school to be vaccinated against a host of potentially serious contagious diseases, but also contains a provision allowing parents to submit a request for an exemption based upon “genuine and sincere religious beliefs” opposing vaccination.  Oholei Torah refused to honor the parents’ exemption request, maintaining that its policy is to not accept students who have not been vaccinated.

The plaintiffs asked the court to grant a preliminary injunction –  an extraordinary form of judicial relief –  requiring the school to admit their child pending the outcome of the case, which could, of course, take months (if not longer) to reach a final adjudication.  In deciding whether to grant a preliminary injunction, among other things, the court must balance the equities on both sides and the risk of “irreparable harm” if the injunction is not granted.  Presumably considering the grave risk to the entire student body and school staff were the unimmunized child to be admitted to school, versus that of the child being kept home or having to attend an alternative institution, the court wisely denied the plaintiffs’ request.

Though the court got that result right, we must cautiously wait to see if it proceeds to recognize that the law permits schools – private or parochial academies and perhaps even public school districts – to decline admission to unvaccinated children.  The key question is whether the religious exemption provision of the aforementioned Public Health Law (Section 2164) overrides the provision of that same law which mandates vaccination of school-children – in other words, whether parents’ faith-based objections to vaccination have legal force – or whether schools simply may choose to honor such exemption requests without running afoul of the vaccination mandate.

In a 2001 case, Bowden v. Iona Grammar School, the Second Department of the New York State Appellate Division seemingly took the former position, enshrining the religious exemption as a parental right – and affirmed the lower court’s granting of a preliminary injunction requiring the private school defendant to allow the child in question to attend the school pending the outcome of the case.  In that case, the appellate court concluded that “the loss of First Amendment freedoms may constitute irreparable harm.”

The ruling in Bowden is difficult to understand. It is unlikely that the Court understood the religious exemption in the Public Health Law as preventing schools from establishing their own rules pertaining to vaccinations and admittance. Rather,  merely exempts schools from the requirement that they only admit vaccinated children. Furthermore, the Supreme Court has been clear that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Such a law, the Supreme Court held in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, will ordinarily not be deemed to infringe upon First Amendment freedoms.

Either way, that decision should not govern the Oholei Torah case – and indeed is ripe for overturning or at the very least clarification  – for a number of reasons. In 2015, the U.S. Court of Appeals for the Second Circuit held in Phillips v. City of New York that there is no constitutional right to be exempted from vaccination requirements on the basis of religious (or any other) beliefs. The Court stated “New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs.” New York State elected to include an exemption provision to give schools the latitude to accept unvaccinated children.  (Indeed, without it, anti-vax parents would have no choice but to homeschool their kids!)  The provision was not meant to strong-arm schools into welcoming such students despite legitimate public health concerns. It was meant to give schools an option to accept such children.  Thus, it would seem that the Second Department erred in its interpretation of the Public Health Law in the 2001 case.

Moreover, to the extent that the matter turns on the constitutional right to free exercise of religion, yeshivas and Day Schools could make their own compelling First Amendment argument.  In light of recent measles outbreaks in the Jewish community, a number of prominent poskim (rabbinic authorities) have declared that halacha (Jewish law) requires parents to vaccinate their children – because safeguarding life is one of the most important mitzvos in the Torah.  Thus, to mandate that yeshivas accept unvaccinated children is to interfere with the school’s free exercise of religion and consequentially their responsibility to protect other students.

This fundamental, authentic religious principle further undermines the request for an exemption by the plaintiffs in the Oholei Torah case – and by other like-minded parents – who use the religious exemption provision as a cover for their scientific, medical, or philosophical objections to vaccination.  Courts have held that such bases for objection do not constitute religious exemptions. In Berg v. Glen Cove, the Court held that “the statutory exception is for persons whose opposition to immunizations stems from religious beliefs; it does not extend to persons whose views are founded upon, for instance, medical or purely moral considerations,…scientific and secular theories, or philosophical and personal beliefs.” Thus, that constitutes an additional ground upon which schools might reasonably choose to reject parents’ purportedly religious exemption requests.

The parties in the Oholei Torah case will be back in Brooklyn Supreme Court in mid-November.  For the sake of our community’s health and well-being, we should all hope that the court decides in favor of the yeshiva. And if it does not, it may be time to contact your state legislator.

 Joey Aron is the founder of Aron Law PLLC. Aron Law PLLC is a boutique firm located in Boro Park, focused primarily on civil rights issues . Contact information is available at www.boroparklaw.com. 

Reprinted with permission from the Jewish Press. 

{Matzav.com}

36 COMMENTS

  1. Yawn.
    This vaccinations debate is boring me already. Can we get back to the shidduch crisis, the dreaded age-gap crisis, tuition crisis, housing crisis, Yeshiva for mitzuyanim only crisis, long shaitel crisis, tight pants crisis, wearing a hat & jacket in the pouring rain crisis, etc, etc…

  2. I am curious to know does this family have a Rov Who guides them not to vaccinate and advise them to make a lawsuit If not they ought to get ostracized by the entire community

    • It’s a clear halachah:
      חייך קודמים לחיי חברך “Chayecha Kodmim” – your life takes precedence over his life. You’re not obligated to risk YOUR child’s life with vaccination that have proven to have side effects. Period!

  3. Of course they should lose
    This is the textbook example of frivolous lawsuit
    The y claim religious exemption yet insit they must send their children to this religious institution!

    how is that logical

  4. The unvaccinated parents are regular RODFIM.
    Did they go to din torah first?
    Did they get permission from ANY bais din to go to court?
    The rest does not have to be spelled out – “Im Eekaish….”

  5. Now the anti-vaxers are attempting to use a supposed “Religious Exemption”??? Exactly what religion is opposed to vaccines? Based on what Torah source? Just because these parents are religious does not mean that they can use “Religious Exemption” to fight anything they don’t like. In this case the Torah tells us to listen to the Doctors and vaccinate. The parents conspiracy theory beliefs has nothing to do with religion and if anything is anti religion.

    • And that’s why they have to ch”v risk the adverse reactions on their own child? Nobody wants their 2-year-old healthy child to turn into a zomby or become autistic or suddenly get seizures or brain swelling or some neurological disorders after receiving vaccination.

      HALACHAH CLEARLY STANDS BY WITH NON-VAXERS.

    • a healthy unvaccinated kid is not: the grave risk to the entire student body and school staff were the unimmunized child to be admitted to school,: It would be a grave risk to the entire school for a sick kid to go to school, not a healthy one. You are just saying that vaccines do not work!!PLeuzee! the kid is healthy!! I wonder if the entire school staff are vaccinated as well.

  6. if you are an anti vaxxer and choose not to vax your kid and prefer him to die of measles rather than take a .00001 percent chance of having a reaction, then that is your prerogative. However, it doesn’t end there! One of my children can not be vaccinated because he is undergoing chemotherapy. He is 18 months but will most likely not be able to receive vaccinations for a few more years. If your un-vaxxed kid, who you are choosing to possibly acquire measles rather than get the shot (and btw the chances of aqciuring measles is higher than acquiring autism from the vax if its even true), does acquire measles and infects my son who I am not choosing to not vax, it will directly be your fault. You may get off easy here in this world in the court of law but if in shamayim it is determined that you were the shaliach to cause my son who has no immune system to get the measles, you will pay for it there worse than in this world. Please keep this in mind and see if you still feel good about your decision. As an aside. my other 8 children have all been vaccinated and not one has ever had any sort of reaction, illness, autism or poisoning. There are reasons not to vaccinate as in my case when my child will acquire measles from the vaccine. But it is not a religious exemption, it is a medical exemption. I do believe there are reasons to sometimes not vaccinate. Fear of a reaction that has never been substantiated is in my opinion not one of them and if you end up causing your and/or other children to die c”v you will not be able to live with yourself.

  7. These anti vaxxers must believe that babies are getting measles not because of not being vaccinated, but rather because men and boys are wearing tight pants.

  8. That is great, “just sayin,” that your other children did not have any bad side effects from vaccines. But it has happened to other children, and that is what some parents are afraid of. (Refuah shelaima to your 18 month old son.) (As an aside, there are researchers who feel children with mitochondrial disorders should also not be vaccinated due to increased chances of vaccine injury. The Hannah Poling case was won in court because of this issue.)

    Dr. Paul Offit is one of the leading spokespeople for the safety of vaccines. Robert F Kennedy, Jr., has sent him a letter asking if he would agree to debate “three top-flight and extensively published researchers” on vaccine safety.

    Here is an excerpt from the letter (https://childrenshealthdefense.org/wp-content/uploads/2018.10.29-Offit-Letter.pdf)

    Paul A. Offit, MD October 29, 2018
    Children’s Hospital of Philadelphia
    3401 Civic Center Blvd.
    Philadelphia, PA 19104

    Dear Dr. Offit:
    Your new book, Bad Advice: Or Why Celebrities, Politicians, and Activists Aren’t Your Best Source
    of Health Information, appears poised to repeat one of your favorite arguments, namely, that
    scientists are the sole trustworthy purveyors of health information. The notion that nonscientists,
    no matter how educated or credentialed, have nothing to contribute to discussions
    about health has been a running theme in many of your books and lectures, and particularly in
    the realm of vaccine safety.

    This is the reason you give for continually rebuffing my requests that you participate in a public
    debate with me about vaccine safety. In recognition of the theme of your new book, I would
    now invite you to debate three top-flight and extensively published researchers whose
    academic standing and contributions to science are beyond dispute: Professor Chris Exley of the
    United Kingdom’s Keele University, Professor Christopher A. Shaw of the University of British
    Columbia (UBC) and Dr. George Lucier, former Director of the National Institute of
    Environmental Health Sciences’ Environmental Toxicology Program. Drs. Exley, Shaw and Lucier
    are precisely qualified to dispute your reckless, dangerous and scientifically baseless assertions
    that aluminum adjuvants and mercury preservatives in our vaccines are harmless or even
    “beneficial.”

    So now is Dr. Offit’s chance to defend his position so parents can be more comfortable with vaccines, or perhaps the opposite. Will he agree to the debate? If so, great! If not, why not?

    PS For information on Dr. Exley and Dr. Shaw, read this:
    https://jbhandleyblog.com/home/a-lone-fda-scientist-could-end-the-autism-epidemic

  9. Hate to say but just like the liberals they want everyone to mind their own Business and then accept the consequences of their actions and I will suggest that you all go and for your own community away from us and deal with whatever occurs and don’t come crying to us for pity

  10. I thought it was mentioned in the comments here a number of times that the Gadol HaDor, the Raban Shel Kol Yisroel, Rav Chaim Kanievsky, Sh’lita, said that a yeshiva CANNOT refuse to accept a student because of non-vaccination

    • is it in writing? or substantiated by a close person to Rav Kanievsky? otherwise its worthless. if someone told you Rav Kanievsky was the first person on the moon would you believe them?

  11. Mima nafshoch: If these parents practice Torah Judaism, then their religion has nothing against measles vaccination, hence the school has a right to deny entry based on child being unvaccinated. If these parents practice some other religion, then the private religious school has a right to deny entry based on the child being of different religion than the school.

  12. A Rodef is not a name – as in name calling – it’s a Halachic status.
    If some chases another with a knife or a “Bah b’mach’teres” he has a halachic status of a rodef with all its halachic ramifications.
    It’s not “name calling” – as in Mr. or Mrs. Nice Person Shlit’a.
    If someone is anti-vexing good for him and his possibly “Chanoch la’Naar (pun intended)” conscious.
    However, if this unvaccinated person mingles and someone catches the desease and ….. (Alov Hasholom)
    ….then he is a Rodef from day one for mingling or allowing mingling of such a potential “Rotzay’ach”.
    Anti vexing is not my issue – and maybe maybe is fine but putting others in danger is far far from fine or ok.

  13. My grandson also couldn’t be vaccinated for a while for medical reasons. Its pretty scary to think that he may have caught something from an unvaccinated child.
    My son’s were vaccinated and still got a serious case of mumps. The merck company sold defective vaccines.
    That may very well be why measles is soreading so fast.

    • that is one of the problems. The vaccine companies have no reason to make sure the vaccines are not defective, because they cannot be sued. it is against the law. instead there is a federal vaccine court to handle cases of people injured by the vaccines. They have already given out billions of dollars.

    • besides defective vaccines. i think sometimes vaccines just don’t take in some people. but that doesnt mean less people should get them. that means more people should get vaccines!

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