Op-Ed: Parents Sue Brooklyn Yeshiva To Compel Admission Of Unvaccinated Child; Here’s Why They Should Lose

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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


15 COMMENTS

  1. The Halacha doesn’t stop you of giving vaccination, the opposite !
    This parents should be prosecuted for that.
    Kol Hakavod to Ohalei Torah Yeshiva !

  2. Can anyone let me know what halacha prohibits someone from getting vaccinated?

    I cant find anything in the Mishna Berurah, The Shulchan Orach, or the Gemarah that writes something against getting vaccinated.

  3. What is the standing to compel a private entity (the Yeshiva) to accept a child? Where’s the free exercise rights of the Yeshiva? Does the Yeshiva lose their rights to free exercise because they accept public funds?

    If not, isn’t this the same as Youtube and Twitter booting people off their platform for “hate speech” since they are private companies?

  4. what exactly would be the religious exemption. A religious exemption would be for someone whose religious belief in other words the halacha or hashkafa of the persons religion does not allow it, so you can ask for a religious exemption. But where in Judaic halacha or hashkafa does it say its assur and goes against ones religious beliefs to vaccinate? To the contrary, there are teshuvos offrom recent fgedilm (Such as Rav Wosner zt”l) who say that since most vaccinate it would caus eharm to thise that vaccinate to mix with those that don’t and therefore everyone is obligated. Rabbi Lane, don’t behind halacha it isn’t an accuratee excuse.

  5. Kollelman:
    Exactly. And what about those PRIVATE stores in Williamsburg that were forced to remove their signs “requesting” their patrons dress modestly & appropriately? Since when does the corrupt government have the right to reach their filthy hands into our private businesses?

  6. I say just let all the antivax have their own school…let’s see them risk their kids like that knowing anyone of the other chirldren could be carrying anything….it might also help with overcrowding issue in lakewood just as an added bonus!

  7. They should lose because they are reshoyim for going to arkaos, keneged halacha, and suing in non-Jewish court instead of the halachicly manadate of the obligatory use of Beis Din.

  8. Shalom and Esther Laine, I hope you know that you are using valuable financial and time resources away from the yeshiva; funds and time which can be devoted to Torah education for children. Children need and want their Torah education, hard-working Rabbeim need their paychecks for food on the shabbos table. Your stubbornness should be utilized somewhere else, where it won’t deprive a frum business of it’s time, energy, stress, and finances on a frivolous law suit. It’s said that on Yom Kippur we are partly judged based upon the way we judge others during the year. Bringing a yeshiva to the court of law over a lawsuit because of your stubbornness should send a message to Hashem on how your personal yom hadin’ should be viewed. Send your kids to public school!

  9. 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.

  10. The tragic death of a Chareidi infant in Yerushalayim makes all of these arguments irrelevant. The question here is pikuach nefesh. By not vaccinating a child you are putting it in danger of death, not to mention all the people around it.

    Obviously this is not retzicha, but could very well fall under the liability of someone who creates a public danger. These parents are the indirect cause of their child’s death. I have rachmonus for them as well as the child, and hope that they make teshuva and get their other children and family members vaccinated so there are no more deaths.

  11. 1. Did the parents go first to the Beis Din that would be connected with those running the school, and lose? Or, do the parents assume the Daas Torah would go against them, and went straight to the government’s courts?

    2. New York State has more control over private school than most other states due to the unique way they established the “University of the State of New York” as including all non-public educational institutions (this was done in the 1790s – that’s why the state in the recent past could remove the board governing a private school). The clothing store is different since under the Common law, as well as under discrimination laws, a public merchant has a duty to deal with all the public (if it was a private store, run out of a house, and not advertising to the public, it would be different).

    3. A state law on requiring a vaccine is clearly neutral on its face (at least for measles, it might be different for something that almost never affects frum Jews so the small risk has to be weigh against the unliklihood of getting the disease), so Dina Malchsa Dina applies.

    4. If the school maintains the religious exemption is inapplicable since the school’s religion also requires a vaccine (or at least, doesn’t object), the court should probably refuse to get entangled and should suggest the school and the parent go to Beis Din, as this is a theological matter.

  12. If this is Barclays policy, they have no case.

    “admits students based on academic record and abilities, Christian commitment,…..Regular admission to the college will be granted to students who meet all of the college’s admissions standards”

    Barclay College admits students based on academic record and abilities, Christian commitment,
    and agreement with the established purposes of the college. Admission and attendance at
    Barclay College is a privilege and not a right of any student. Barclay College does not
    discriminate on the basis of sex, race, color, national or ethnic origin, age, or physical disability
    in the administration of any of its programs or policies. Regular admission to the college will be
    granted to students who meet all of the college’s admissions standards; a high school diploma
    or GED equivalent, have cumulative high school or college grade point averages of 2.3 or better,
    and who have scores of at least 500 on the SAT Writing section or 18 on the ACT English
    section.

  13. How the Laines can do such a thing is beyond me. Refusing to vax is irresponsible, but to actually go to court to force a school to put its staff & student body at risk because of their “rights”? What about MY grandchildren’s rights?

    TGIShabbos, you are right. I hope OT never accepts their kids again, vaxed or not.

  14. What a wickedness.
    Please all antivaxers. Stop the lies and manipulation at doctors and stop the fake religious exemptions.

    Will you all antivaxers just homeschool? You deserve it