775 F.3d 538 (2nd Cir. 2015), 14-2156-cv, Phillips v. City of New York

Docket Nº:14-2156-cv
Citation:775 F.3d 538
Opinion Judge:PER CURIAM:
Party Name:NICOLE PHILLIPS, individually and on behalf of B.P. and S.P., minors, DINA CHECK, on behalf of minor M.C., FABIAN MENDOZA-VACA, individually and on behalf of M.M. and V.M., minors, Plaintiffs-Appellants, v. CITY OF NEW YORK, ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General, State of New York, DR. NIRAV R. SHAH, in his official cap
Attorney:PATRICIA FINN, Patricia Finn, Attorney, P.C., Piermont, New York, for Plaintiffs-Appellants. JAMES ANDREW KENT, Assistant Solicitor General (Steven C. Wu, Deputy Solicitor General, on the brief) on behalf of Barbara D. Underwood, Solicitor General, for State Defendants-Appellees. JANE L. GORDON o...
Judge Panel:Before: LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.[**]
Case Date:January 07, 2015
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 538

775 F.3d 538 (2nd Cir. 2015)

NICOLE PHILLIPS, individually and on behalf of B.P. and S.P., minors, DINA CHECK, on behalf of minor M.C., FABIAN MENDOZA-VACA, individually and on behalf of M.M. and V.M., minors, Plaintiffs-Appellants,

v.

CITY OF NEW YORK, ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General, State of New York, DR. NIRAV R. SHAH, in his official capacity as Commissioner, New York State Department of Health, NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants-Appellees. [*]

No. 14-2156-cv

United States Court of Appeals, Second Circuit

January 7, 2015

Argued: January 5, 2015.

Page 539

Plaintiffs-appellants challenge on constitutional grounds New York State's requirement that all children be vaccinated in order to attend public school. Plaintiffs-appellants argue that the statutory vaccination requirement, which is subject to medical and religious exemptions, violates their substantive due process rights, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Ninth Amendment, and both state and municipal law. On the same grounds, plaintiffs-appellants argue that a state regulation permitting state officials to temporarily exclude students who are exempted from the vaccination requirement from school during an outbreak of a vaccine-preventable disease is unconstitutional. The district court concluded that the statute and regulation are constitutional. We agree and therefore AFFIRM.

PATRICIA FINN, Patricia Finn, Attorney, P.C., Piermont, New York, for Plaintiffs-Appellants.

JAMES ANDREW KENT, Assistant Solicitor General (Steven C. Wu, Deputy Solicitor General, on the brief) on behalf of Barbara D. Underwood, Solicitor General, for State Defendants-Appellees.

JANE L. GORDON on behalf of Zachary W. Carter, Corporation Counsel of the City of New York, for Municipal Defendants-Appellees.

Before: LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.[**]

OPINION

Page 540

PER CURIAM:

Plaintiffs brought this action challenging on constitutional grounds New York State's requirement that all children be vaccinated in order to attend public school. Plaintiffs argued that the statutory vaccination requirement, which is subject to medical and religious exemptions, violates their substantive due process rights, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Ninth Amendment, and both state and municipal law. On the same grounds, plaintiffs argued that a state regulation permitting school officials to temporarily exclude from school students who are exempted from the vaccination requirement during an outbreak of a vaccine-preventable disease is unconstitutional. Defendants moved to dismiss or for summary judgment. The district court (William F. Kuntz II, Judge ) granted defendants' motions. Because we conclude that the statute and regulation are a constitutionally permissible exercise of the State's police power and do not infringe on the free exercise of religion, and we determine that plaintiffs' remaining arguments are either meritless or waived, we affirm.

BACKGROUND

New York requires that students in the State's public schools be immunized against various vaccine-preventable illnesses. The New York Public Health Law provides that " [n]o principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days" without a certificate of immunization. N.Y. Pub. Health Law § 2164(7)(a). The statute provides two exemptions from the immunization mandate. First, a medical exemption is available " [i]f any physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child's health." Id. § 2164(8). Second, the a religious exemption is available for " children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required." Id. § 2164(9). The State provides multiple layers of review for parents if either of these exemptions is denied.

Plaintiffs Nicole Phillips and Fabian Mendoza-Vaca, who are Catholic, received religious exemptions for their children. In November 2011 and January 2012, however, the Phillips and Mendoza-Vaca children were excluded from school when a fellow student was diagnosed with chicken

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pox, pursuant to a state regulation that provides, " in the event of an outbreak . . . of a vaccine-preventable disease in a school, the commissioner, or his or her designee...

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