V.D. v. State, 2:19-cv-04306-ARR-RML

• Citation: 403 F.Supp.3d 76
• Decision Date: 19 August 2019
• Docket Number: 2:19-cv-04306-ARR-RML
• Parties: V.D., et al., Plaintiffs, v. STATE of New York, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

403 F.Supp.3d 76

V.D., et al., Plaintiffs,

v.STATE of New York, et al., Defendants.

2:19-cv-04306-ARR-RML

United States District Court, E.D. New York.

Signed August 19, 2019

Kimberly Marie Mack Rosenberg, Bouer Law LLC, Lawrenceville, NJ, for Plaintiffs.

Elyce Noel Matthews, NY OAG, New York, NY, for Defendants.

OPINION & ORDER

ROSS, United States District Judge:

Plaintiffs, six parents of children with disabilities, filed this complaint on July 25, 2019 against Governor Andrew Cuomo, Attorney General Letitia James, the New York State Department of Education, Commissioner MaryEllen Elia, and Executive Deputy Commissioner Elizabeth Berlin (collectively, "defendants"). Until recently, plaintiffs' children were enrolled in schools throughout New York state, where they were provided with individually-designed special education and related services pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. Prior to June 13, 2019, plaintiffs claimed a religious exemption to the state's mandatory vaccination

law, New York Public Health Law § 2164(9) (McKinney 2015) (repealed June 13, 2019). On June 13, 2019, the religious exemption was repealed by the state legislature ("the law" or "the repeal"). All families—except for those who obtain a statement from a physician certifying that "immunization may be detrimental to a child's health"—are now required to vaccinate their children in order to enroll them in public, private, or parochial schools. See N.Y. Pub. Health Law § 2164(6) (McKinney 2019).

Plaintiffs argue that the new version of § 2164 is preempted by the IDEA. They filed this motion for a preliminary injunction on August 5, 2019, seeking an immediate restoration of the religious exemption during the pendency of this litigation. In the alternative, they seek a "stay-put order," pursuant to 20 U.S.C. § 1415(j), requiring defendants to maintain the most recent agreed-upon educational placement for students with disabilities during the course of this litigation. For the reasons set forth below, plaintiffs' motion is DENIED.

BACKGROUND

I. New York Public Health Law § 2164

New York Public Health Law § 2164 requires "every person in parental relation to a child in this state [to] have administered to such child an adequate dose or doses" of certain "immunizing agent[s]," including those that guard against mumps, measles

, diptheria, and hepatitis B. § 2164(1)(d) (McKinney 2019). When applying for admission to a "public, private, or parochial ... school," parents and guardians are required to provide schools with certificates of their child's vaccination history. Id. §§ 2164(1)(a), (6). For more than 50 years, however, the statute provided an exception for "children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices" required by the law. N.Y. Pub. Health Law § 2164(9) (McKinney 2015) (repealed June 13, 2019); Compl. ¶ 84, ECF No. 1. For such children, no immunization certificate was required in order to gain admission to a New York state school. N.Y. Pub. Health Law § 2164(9).

Plaintiffs allege that the religious exemption permitted approximately 0.05% to 1% of students in New York State to attend school without immunizations. See Compl. ¶ 86. According to Dr. Debra Blog, the Director of the Division of Epidemiology for New York State's Department of Health, the "number of children entering school with a valid religious exemption ha[d] risen" in the years prior to the repeal—even as the total number of children entering school decreased and the percentage of children claiming medical exemptions remained steady. Blog Decl. ¶ 15, ECF No. 15. During the 2017–2018 school year, 26,627 students in the state claimed a valid religious exemption to the mandatory vaccination

law. Id.

During the 2018–2019 school year, measles

outbreaks were reported across New York, including in New York City and Rockland County. See Compl. ¶ 90; see also Mack Rosenberg Decl., Ex. 1, at 2, ECF No. 6-3 ("Senate Memo") ("As of May 20th, 2019, there have been at least 810 confirmed cases of measles in New York State since October 2018."). These outbreaks were concentrated in communities with lower vaccination rates and relatively high percentages of parents with religious exemptions. See Blog Decl. ¶ 16–19. ¹

In January 2019, both chambers of the state legislature proposed bills to repeal the religious exemption, with the goal of "avoid[ing] future outbreaks of vaccine-preventable illnesses like measles

." Matthews Decl., Ex. D, at 2, ECF No. 14-4; see also Matthews Decl., Ex. A, ECF No. 14-1; Matthews Decl., Ex. B, ECF No. 14-2. The repeal was enacted on June 13, 2019 and signed into law by Governor Cuomo on the same day. Compl. ¶ 98. The repeal eliminates the religious exemption and requires principals, teachers, and other school staff members to prohibit unvaccinated children from attending public, private, or parochial schools. N.Y. Pub. Health Law § 2164(7)(a) (McKinney 2019).

According to plaintiffs, the legislation was modeled after a similar repeal enacted in California in 2015. See Compl. ¶ 100; see also Senate Memo 2 ("For guidance in dealing with this epidemic, we need only look to California, which repealed all non-medical exemptions to vaccination

requirements under their state law...."). Despite this stated inspiration, however, New York's repeal differs from California's in one material respect: unlike New York's law, California's law contains a provision explaining that it "does not prohibit a pupil who qualifies for an individualized education program, pursuant to federal law and Section 56026 of the Education Code, from accessing any special education and related services required by his or her individualized education program." Cal. Health & Safety Code § 120335(h) (West 2016). In a guidance letter published soon after the New York repeal, the state clarified that its "new law applies to students who receive special education services," though it "does not affect valid medical exemptions." Mack Rosenberg Decl., Ex. 8, at 5, ECF No. 6-7 (emphasis added).

On July 18, 2019, New York's Department of Health, Office of Children and Family Services, and State Education Department issued a joint guidance letter responding to frequently-asked questions about the repeal. See Mot. for Prelim. Inj. 7–8, ECF No. 6-1; Mack Rosenberg Decl., Ex. 9, ECF No. 6-11 ("July Guidance Letter"). The letter explained that children attending year-round schools were required to receive the first age-appropriate dose of all required vaccines by June 28, 2019; if they failed to comply with this requirement, "[t]hese children must be excluded from school immediately." July Guidance Letter 4; see also N.Y. Pub. Health Law § 2164(7)(a) (McKinney 2019). For students who do not attend year-round schools, parents must provide proof of initial vaccinations

within fourteen days "after the first day of instruction in September." Id. at 3. Within 30 days of the first day of school, all parents must "provide evidence of age appropriate appointments for the next follow-up doses" of all required vaccines. Id. at 5–6; see also N.Y. Pub. Health Law § 2164(7)(a) (McKinney 2019).

II. The Plaintiffs

Plaintiffs are the parents of children with disabilities who qualify for special education and related services under the Individuals with Disabilities Education Act. Compl. ¶ 20.² Before the repeal, plaintiffs had religious exemptions that allowed their children to attend schools in New York state without immunization certificates. Id. ; See also V.D. Decl. ¶ 9, ECF No. 6-14; T.S. Decl. ¶ 8, ECF No. 6-17; S.K. Decl. ¶ 8, ECF No. 6-20; P.E.T. Decl. ¶ 8, ECF No. 6-22; B.C. Decl. ¶ 8, ECF No. 6-25. Since the enactment of the new version of § 2164 on June 13, 2019, plaintiffs have failed to comply with the law's immunization requirements; as a result, their children will be unable to attend school in September. See V.D. Decl. ¶ 12; T.S. Decl. ¶ 9; S.K. Decl. ¶ 7; P.E.T. Decl. ¶ 6; B.C. Decl. ¶ 6. Additionally, some of the plaintiffs' children previously received extended school year services during the summer, but they have been prohibited from attending these programs due to their failure to comply with the repeal. See V.D. Decl. ¶ 10; T.S. Decl. ¶ 9; S.K. Decl. ¶ 10. Plaintiffs allege that their children are being deprived of "access to special education and related services mandated by their IEPs," and that the repeal has interfered with their work schedules by requiring that they stay home to care for their children. See, e.g. , V.D. Decl. ¶¶ 12, 15–17. They also allege that their children will regress behaviorally and academically as a result of the gap in services following the repeal. See, e.g. , id. ¶ 14; B.C. Decl. ¶ 9.

III. The Preliminary Injunction Motion

Plaintiffs filed the instant motion for a preliminary injunction on August 5, 2019. See Mot. for Prelim. Inj. They seek an order enjoining the defendants from implementing the repeal, thus restoring the version of § 2164 that was in place prior to June 13, 2019. See id. at 36. They argue that they are entitled to relief under both the traditional preliminary injunction standard and under the "stay-put" provision of the IDEA. See id. at 25. In the alternative, their complaint asks the court to stay the repeal insofar "as it applies to children with rights under IDEA." Compl. ¶ 124(b).

In support of their motion, plaintiffs allege several conflicts between the IDEA and § 2164, and they argue that these conflicts demonstrate that the repeal of the religious exemption is preempted by federal law. Specifically, they argue that the repeal conflicts with the IDEA because: (1) it creates an "impermissible condition precedent for students protected by the IDEA to obtain ... services," (2) it allows for "the summary dismissal of all students with IEPs who do not comply with the amended law," and (3) it fails to provide parents with notice and...