Seeking Parents, Medical Professionals, Attorneys, and Law Students interested in mounting a challenge to the June 13, 2019, New York State Legislature's amendment to the Public Health Law that eliminated the exemption from student immunization requirements upon religious beliefs. If you are interested in Joining the Fight, please complete the contact form below. This issue may still be relevant to you even when you do not reside in New York State and your state has not barred religious exemptions (mounting a successful challenge in New York, may influence your state should similar legislation be considered). Please continue reading about the issues and how you can get involved further below:
The mandates related to immunization under New York State Public Health Law, Section 2164, were written to apply to a person defined as a "child." Under the relevant law, a "child" is defined to include any person between the ages of two (2) months and eighteen (18) years of age. The definitions language was already in place prior to the recent legislation, and the New York State Legislature made no mention and thus, failed to expand the definition of "child" to include all students, in particular, students over the age of 18. A strictly literal reading of the statutory language and review of the legislative intent, should lead a reasonable finder of fact to conclude that: if a student reaches the age of eighteen (18) years and is still enrolled in school, that student is NOT subject to the mandatory vaccine requirements and New York State School Districts MUST permit that student to attend school even when they cannot provide evidence of immunization.
So, if you are a Parent of a Student that has not been vaccinated and that Student is or will be over eighteen (18) years of age while still enrolled in school, upon their eighteenth (18th) birthday, that Student will no longer be required to provide proof of immunization and may continue to attend school. If your school district continues to ban them from enrollment, please contact my office or a competent attorney to defend their rights.
If you run into problems, when you contact an attorney, you may want to refer your them to http://www.p12.nysed.gov/sss/documents/doh-sed-ocfs-vaccination-faq.pdf; which in relevant parts states regarding the recently enacted repeal of religious exemptions:
"Does this new law apply to students aged 18 and older? No. The mandatory vaccination law only applies to a child, which Public Health Law §2164(1)(b) defines as a person between the ages of two months and 18 years. Once a student reaches the age 18, he/she is no longer required to show proof of immunization."
With regard to New York State, there is a lot of hesitation to make any attempt to challenge any law mandating vaccines using legal arguments based on religious freedoms, because the Second Circuit has already held in Phillips v. City of New York, 775 F.3d 538, 543 (2015), that mandatory vaccination as a condition for admission to school does not violate the Free Exercise of Religion Clause. However, there are attorneys who disagree and believe that the new law repealing religious exemptions raise novel issues that can be differentiated from the Phillips case and other similar cases decided in states other than New York.
The Castro CLAN has taken the position that, while not impossible, the case for general education students seeking to challenge the new vaccine laws based on religious freedom will prove extremely difficult. With that statement, there is no intent to discourage litigation, but only to state that such litigation may prove financially and otherwise legally burdensom when there are other cases can be litigated for less that may accomplish or help to accomplish the end goal of restoring children's right to access a public education. It is troubling that the law also requires student's participating remotely (recieving services off school grounds or at home) in their enrolled school to be vaccinated, forcing some parents to homeschool with limited additional supports. That said, we wish to support any such litigation, but there are no current plans to file such a case for a general education student up until our current efforts using Special Education law (a/k/a IDEA) are fully exhausted. Parents of general education students facing this issue may want to consult Michael H. Sussman, Esq., of Sussman & Associates, PO Box 1005, Goshen, New York 10924 AND/OR Robert F. Kennedy, Jr., Esq., of the Children's Health Defense organization, 1227 North Peachtree Pkwy, Suite 202, Peachtree City, GA 30269 (Castro CLAN is not affiliated with above named attorneys and only mentions them because of their efforts in New York State regarding this issue having been publicized by the media) AND/OR another competent attorney in their respective jurisdiction.
While the Castro CLAN has not ruled out taking action for general education students whose rights may be violated, our current focus in on the vaccination law's clear violation of Federal Law
related to Students with Disabilities, namely, the Individuals with Disabilities Act (IDEA). It is important to note that Robert F. Kennedy,
Jr., Esq. and Kim Mack Rosenburg, Esq. (an attorney with Bouer Law LLC) have filed a federal law suit in the United States District Court
for the Eastern District of New York that raise the issues regarding IDEA and the new Vaccine laws in New York (see: https://
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Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.
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