Families Challenge School Rule for Vaccine-Exempt Kids

Hundreds of public school students get religious exemptions from compulsory vaccination requirements for school. However, there is a catch: if students are not vaccinated, the school can ask them to stay home, for an extended period, if a classmate comes down with chicken pox, measles or one of the other “vaccine-preventable diseases.” Two families from Queens are suing the city over that catch.

“Who’s this rule designed to protect, the non-immunized kid?” asked Patricia Finn, an attorney for the families. “The parents have already said, ‘Fine, put our child in school. We’ll take our chances with these mild childhood illnesses.’”

Finn is asking a federal judge in Brooklyn to overturn the city rule. The case is scheduled for late March, but Finn is going to court on Monday to ask for a temporary restraining order, so one of her clients can avoid a two-to three-week stint at home  — the second in the last two months.

Medical experts dispute that the illnesses in question — including chicken pox, measles, mumps and rubella — are mild. They can be, but they can also be life-threatening. They also say that vaccines aren’t 100 percent effective, and the presence of non-immunized children in the event of an outbreak can accelerate the spread of disease.

Finn argues that the application of the rule is arbitrary and capricious, because while the city Health Department, in theory, enforces the rule, in practice it falls to school principals. And some enforce it, Finn said, while others don’t.

“You have to balance the public health interest and the individual’s right to free exercise of religion,” Finn said. “This rule does not achieve that balance.”

The city declined to comment on the lawsuit, as it does all pending litigation.

In its policy published online, the Department of Education states unvaccinated children can be kept home, in the event of a disease outbreak “for at least one incubation period after the onset of the last case.” For example, according to the rule, “if a case of measles is diagnosed, students who have not received a measles vaccine will be excluded from school during the outbreak and for an additional 18 days after the onset of the last case in the school.”

Finn said if there is a series of such cases, unvaccinated kids can be forced to stay home for several weeks. It’s happened twice this year to two of her clients, and one of them had two such cases last year, as well.

Professor Marci Hamilton, from Yeshiva University’s Cardozo Law School, said the provision Finn is challenging is very common — and Hamilton, an expert on church-state conflicts, doesn’t know of other similar legal petitions. She said Finn will have a difficult case proving her clients’ constitutional rights have been violated. She said if students are at risk of becoming seriously ill, schools have an obligation to remove them from that risk, and that goes for students who are unvaccinated for both religious and medical reasons.

“When individuals choose to take actions that put their health at risk for religious reasons, they must bear the consequences of their decisions,” Hamilton said. “There is no constitutional right to make such decisions and then put schools in a position of being responsible for their health.”

The number of students getting religious exemptions from city schools has increased from 46 in 2005 to 208 in 2010, the most recent year for which figures were available.