By Joey Aron, Esq.

Reprinted with permission from the Jewish Press

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