Supplemental Authority Letter — Goe v. Children's Health Defense — CHD v. Rutgers (D.N.J.)

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No. 3:21-cv-15333-ZNQ-TJB · Doc. 49 · 2022-08-02 · Docket on CourtListener

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Faegre Drinker Biddle & Reath LLP 
1177 Avenue of the Americas, 41st Floor 
New York, New York  10036 
+1 212 248 3140 main 
+1 212 248 3141 fax 
Jeffrey S. Jacobson 
Partner 
jeffrey.jacobson@faegredrinker.com 
212-248-3191 direct 
August 2, 2022 
BY ECF 
Hon. Zahid N. Quraishi, U.S.D.J. 
United States District Court 
for the District of New Jersey 
Clarkson S. Fisher Building & U.S. Courthouse 
402 East State Street 
Trenton, New Jersey 08608 
Re: Children’s Health Defense, Inc. v. Rutgers, No. 3:21-cv-15333 (D.N.J.) 
Dear Judge Quraishi: 
On behalf of Rutgers, the State University of New Jersey (“Rutgers”), as supplemental authority 
in support of Rutgers’ Motion to Dismiss Plaintiffs’ First Amended Complaint (Dkt. No. 39), I 
respectfully submit the attached decision of the United States Court of Appeals for the Second 
Circuit in Goe v. Children’s Health Defense, __ F.4th __, No. 21-0537-cv, 2022 WL 3007919 (2d 
Cir. July 29, 2022).  The Second Circuit upheld New York State’s regulations that clarified and 
narrowed the availability of medical exemptions to the State’s vaccination mandate for elementary 
and secondary schools.  Although the statutory and regulatory context of Goe is not perfectly 
aligned with the vaccine mandate Children’s Health Defense (“CHD”) protests in the instant case, 
the Second Circuit held that rational basis review, not strict scrutiny, applies to challenges like 
those made by CHD here.  See id. at *7-*8.  The court also held that the State of New York had 
a legitimate interest in protecting communities from serious illness and that the vaccine mandate 
was reasonably related to that interest.  See id. at *8-*10. 
 
Respectfully submitted, 
 
Jeffrey S. Jacobson 
 
 
 
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2022 WL 3007919 
Only the Westlaw citation is currently available. 
United States Court of Appeals, Second Circuit. 
Jane GOE, Sr., on behalf of herself and her minor 
child, Jane Doe, on behalf of herself and her minor 
child, Jane Boe, Sr., on behalf of herself and her 
minor child, John Coe, Sr., on behalf of himself 
and his minor children, Jane Coe, Sr., on behalf of 
herself and her minor children, John Foe, Sr., on 
behalf of himself and his minor child, Jane Loe, on 
behalf of herself and her medically fragile child, 
Jane Joe, on behalf of herself and her medically 
fragile child, Children’s Health Defense, 
Plaintiffs-Appellants, 
v. 
Howard ZUCKER, in his official capacity as 
Commissioner of Health for the State of New York, 
Elizabeth Rausch-Phung, M.D., in her official 
capacity as Director of the Bureau of 
Immunizations at the New York State Department 
of Health, New York State Department of Health, 
Three Village Central School District, Cheryl 
Pedisich, acting in her official capacity as 
Superintendent, Three Village Central School 
District, Corinne Keane, acting in her official 
capacity as Principal, Paul J. Gelinas Jr. High 
School, Three Village Central School District, 
Lansing Central School District, Chris Pettograsso, 
acting in her official capacity as Superintendent, 
Lansing Central School District, Christine Rebera, 
acting in her official capacity as Principal, Lansing 
Middle School, Lansing Central School District, 
Lorri Whiteman, acting in her official capacity as 
Principal, Lansing Elementary School, Lansing 
Central School District, Penfield Central School 
District, Dr. Thomas Putnam, acting in his official 
capacity as Superintendent, Penfield Central 
School District, South Huntington School District, 
Dr. David P. Bennardo, acting in his official 
capacity as Superintendent, South Huntington 
School District, Br. David Migliorino, acting in his 
official capacity as Principal, St. Anthony’s High 
School, South Huntington School District, Ithaca 
City School District, Dr. Luvelle Brown, acting in 
his official capacity as Superintendent, Ithaca City 
School District, Susan Eschbach, acting in her 
official capacity as Principal, Beverly J. Martin 
Elementary School, Ithaca City School District, 
Coxsackie-Athens School District, Randall Squier, 
acting in his official capacity as Superintendent, 
Coxsackie-Athens School District, Freya Mercer, 
acting in her official capacity as Principal, 
Coxsackie-Athens School District, Albany City 
School District, Kaweeda G. Adams, acting in her 
official capacity as Superintendent, Albany City 
School District, Michael Paolino, acting in his 
official capacity as Principal, William S. Hackett 
Middle School, Albany City School District; and all 
others similarly situated, Defendants-Appellees, 
Shenendehowa Central School District, Dr. L. 
Oliver Robinson, acting in his official capacity as 
Superintendent, Shenendehowa Central School 
District, Sean Gnat, acting in his official capacity 
as Principal, Koda Middle School, Shenendehowa 
Central School District, Andrew Hills, acting in his 
official capacity as Principal, Arongen Elementary 
School, Shenendehowa Central School District, 
Defendants.* 
Docket No. 21-0537-cv 
| 
August Term 2021 
| 
Argued: November 9, 2021 
| 
Decided: July 29, 2022 
ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE NORTHERN DISTRICT OF NEW 
YORK (Sannes, J.) 
Attorneys and Law Firms 
Sujata S. Gibson, The Gibson Law Firm, PLLC, Ithaca, 
New York (Michael H. Sussman and Jonathan R. 
Goldman, Sussman and Associates, Goshen, New York, 
and Mary Holland and Robert F. Kennedy, Jr., Children’s 
Health Defense, New York, New York, on the brief), for 
Plaintiffs-Appellants. 
Beezly J. Kiernan, Assistant Solicitor General of Counsel 
(Barbara D. Underwood, Solicitor General, Jeffrey W. 
Lang, Deputy Solicitor General, on the brief), for Letitia 
James, Attorney General of the State of New York, 
Albany, New York, for Defendants-Appellees Zucker, 
Rausch-Phung, and the New York State Department of 
Health. 
Adam I. Kleinberg, Sokoloff Stern, LLP, Carle Place, 
New York (Gregg T. Johnson, April J. Laws, Loraine C. 
Jelinek, Johnson Laws, LLC, Clifton Park, New York, on 
the brief), for Defendants-Appellees Three Village 
Central 
School 
District, 
Pedisich, 
Keane, 
South 
Huntington School District, Bennardo, Ithaca City School 
District, Brown, Eschbach, Albany City School District, 
Adams, and Paolino. 
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Roxanne L. Tashjian (James G. Ryan, on the brief) Cullen 
and Dykman LLP, Garden City, New York, for 
Defendants-Appellees Lansing Central School District, 
Pettograsso, Rebera, Whiteman, Penfield Central School 
District, Putnam, Coxsackie-Athens School District, 
Squier, and Mercer. 
Meishin 
Riccardulli, 
Philip 
C. 
Semprevivo, 
Jr., 
Biedermann Hoenig Semprevivo PC, New York, New 
York, for Defendant-Appellee Migliorino. 
Before: Leval, Cabranes, and Chin, Circuit Judges. 
Opinion 
 
Chin, Circuit Judge: 
 
*1 Under New York State law, all children must be 
immunized against certain diseases to be admitted to 
school or to attend school for more than fourteen days. 
Prior to June 2019, New York law allowed exemptions 
from this immunization requirement for both non-medical 
and medical reasons. That year, following a nationwide 
measles outbreak, New York State (the “State”) repealed 
the non-medical exemption and adopted new regulations 
that clarified the requirements for a medical exemption. 
Specifically, the State narrowed the availability of 
medical exemptions to cases consistent with guidelines 
issued by the Advisory Committee on Immunization 
Practices (the “ACIP” and the “ACIP Guidelines”) of the 
Centers for Disease Control and Prevention (the “CDC”)1 
or with other nationally recognized evidence-based 
standards of care. 
  
Plaintiffs-appellants 
(“Plaintiffs”) 
are 
a 
national 
not-for-profit children’s advocacy organization and 
several parents, suing on behalf of themselves and their 
children, whose requests for medical exemptions from the 
school immunization requirements were largely denied. 
They 
brought 
this 
action 
below 
against 
defendants-appellees -- the New York State Department 
of Health (the “Health Department”), Health Department 
officials, local school districts, and local school district 
officials (collectively, “Defendants”)2 -- alleging that the 
new regulations and the enforcement thereof violated 
their rights under the Due Process Clause of the 
Fourteenth Amendment and Section 504 of the 
Rehabilitation 
Act, 
29 
U.S.C. 
§ 
794 
(the 
“Rehabilitation Act”). 
  
The district court granted Defendants’ motions to dismiss. 
We conclude first, as a procedural matter, that the district 
court properly applied the motion to dismiss standards. 
We then conclude, as a substantive matter, that neither the 
new regulations nor the enforcement thereof violated the 
Due 
Process 
Clause 
or 
the 
Rehabilitation 
Act. 
Accordingly, the district court’s judgment dismissing the 
action is AFFIRMED.3 
  
 
BACKGROUND 
 
A. Statutory Background 
*2 For more than a century, the State has required 
mandatory immunization for children to attend school. 
See Act of Apr. 16, 1860, ch. 438, 1860 N.Y. Laws 761, 
761-62. Today, all children between the ages of two 
months and eighteen years must be immunized against a 
number of diseases to be admitted to school or to attend 
school for more than fourteen days. See 
N.Y. Pub. 
Health Law § 2164(7)(a).4 These diseases include 
“poliomyelitis, mumps, measles, diphtheria, rubella, 
varicella, hepatitis B, pertussis, tetanus, and, where 
applicable, Haemophilus influenzae type b (Hib), 
meningococcal disease, and pneumococcal disease.” Id. 
The fourteen-day period can be extended for students 
transferring from out-of-state if they show that they are 
seeking in good faith the required certification or other 
proof. Id. 
  
The State has also permitted exemptions from school 
immunization requirements for many decades. See, e.g., 
Act of Apr. 20, 1953, ch. 879, 1953 N.Y. Laws 2141, 
2289-90 (providing deferment from school immunization 
for smallpox based on “medical reasons”) (repealed 
1968). Until the 2019 amendments, 
Section 2164 
provided two statutory exemptions from its school 
immunization requirements. See Act of Aug. 3, 1966, ch. 
994, 1966 N.Y. Laws 3331, 3333. Under the non-medical 
exemption, a child was not required to be immunized if 
that child had a parent or guardian who held “genuine and 
sincere religious beliefs” against immunization. 
N.Y. 
Pub. Health Law § 2164(9) (repealed 2019). That changed 
when the United States -- with the State as an epicenter -- 
experienced a nationwide measles outbreak between 2018 
and 2019.5 With outbreaks in the State largely 
concentrated in communities with low immunization 
rates, the State legislature repealed the availability of the 
non-medical exemption in June 2019. See Act of June 13, 
2019, ch. 35, 2019 N.Y. Laws 153, 153-54; App’x at 108 
(explaining that “[a]fter California repealed their 
non-medical exemptions, their vaccination rates improved 
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demonstrably, particularly in schools with the lowest rates 
of compliance”). Like some other states, the State now 
only 
allows 
medical 
exemptions 
from 
school 
immunization.6 
  
Under the State’s present requirements, a child may be 
exempted 
from 
school 
immunization 
if 
“any” 
state-licensed physician “certifies that such immunization 
may be detrimental to [the] child’s health.” 
N.Y. Pub. 
Health Law § 2164(8). The request must “contain[ ] 
sufficient 
information 
to 
identify 
a 
medical 
contraindication to a specific immunization.” N.Y. Comp. 
Codes R. & Regs. tit. 10, § 66-1.3(c). School officials 
enforce these requirements, see 
N.Y. Pub. Health Law 
§ 2164(7)(a), and may require additional supporting 
information before granting requests for exemptions, see 
N.Y. Comp. Codes R. & Regs. tit. 10, § 66-1.3(c). The 
denial of a medical exemption is appealable to the 
Commissioner of Education. 
N.Y. Pub. Health Law § 
2164(7)(b). 
  
*3 On August 16, 2019, Commissioner Zucker issued 
emergency 
regulations 
to 
implement 
the 
State’s 
legislative repeal of the non-medical exemption (the “new 
regulations”). In doing so, the Commissioner explained 
that these new rules would ensure that the State’s 
immunization requirements conformed to “national 
immunization recommendations and guidelines.” App’x 
at 138. 
  
The new regulations were adopted on December 31, 2019. 
They require the use of a medical exemption form 
approved by the Health Department or the New York City 
Department of Education, completed and signed by a 
physician, 
certifying 
that 
“immunization 
may be 
detrimental to the child’s health.” N.Y. Comp. Codes R. 
& Regs. tit. 10, § 66-1.3(c). A completed form must 
provide “sufficient information to identify a medical 
contraindication to a specific immunization and specify[ ] 
the length of time the immunization is medically 
contraindicated.” Id. The new regulations also define the 
phrase “[m]ay be detrimental to a child’s health,” as used 
in 
section 2164(8) of the New York Public Health 
Law, to mean “that a physician has determined that a 
child has a medical contraindication or precaution to a 
specific immunization consistent with ACIP guidance or 
other nationally recognized evidence-based standard of 
care.” Id. § 66-1.1(l). 
  
The ACIP Guidelines define a “contraindication” as a 
“condition[ ] in a recipient that increases the risk for a 
serious adverse reaction,” App’x at 489, and recommend 
that a vaccine not be administered when such a 
contraindication exists. Examples of contraindications 
include being severely immunocompromised, having an 
immunodeficiency disease, or suffering a severe allergic 
reaction after a previous vaccine dose. The ACIP 
Guidelines separately define a “precaution” as a 
“condition in a recipient that might increase the risk for a 
serious 
adverse 
reaction, 
might 
cause 
diagnostic 
confusion, or might compromise the ability of the vaccine 
to produce immunity.” Id. at 490. For precautions, the 
ACIP Guidelines recommend deferring, in lieu of 
completely 
foregoing, 
vaccination. 
Examples 
of 
precautions include experiencing moderate or severe 
acute illness or a personal or family history of seizures.7 
  
 
 
B. Factual Background 
The following facts, which are assumed to be true, are 
drawn from the FAC. 
  
Plaintiffs’ medically fragile children suffer from diseases 
and disabilities that significantly impair their immune 
systems. Some also have a family history of adverse 
reactions to vaccines or serious autoimmune diseases. 
These conditions or circumstances have either prevented 
them from being vaccinated at all, or from receiving 
certain vaccines. 
  
Around the start of the 2019 school year, Plaintiffs 
submitted medical exemption requests, supported by their 
state-licensed physicians, seeking exemptions from all or 
some of the school immunization requirements.8 Most of 
Plaintiffs’ requests were denied. They were told by school 
officials, for example, that their requests lacked sufficient 
detail, did not meet ACIP Guidelines criteria, or were 
submitted on the wrong form. In denying these requests, 
many school officials relied on the opinion of their school 
district’s physician. Director Rausch-Phung also reviewed 
some of these requests and recommended their denial. 
  
*4 Some Plaintiffs submitted unsuccessful second, and 
third requests. Plaintiffs Joe and Doe appealed their 
medical exemption denials to the Commissioner of 
Education. While Joe’s appeal was still pending when suit 
was filed, the denial of Doe’s request was affirmed. 
Plaintiff Foe’s son’s medical exemption was granted, and 
he is enrolled in private school. In Plaintiff Goe’s case, 
the school district allowed her daughter to enroll in school 
while her second medical exemption request was 
pending.9 The failure of certain Plaintiffs to comply with 
the new regulations resulted in their expulsion and in the 
denial of vital school services and programming. 
  
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C. Procedural Background 
On July 23, 2020, Plaintiffs commenced this putative 
class action against Defendants, challenging the new 
regulations. After Defendants moved to dismiss Plaintiffs’ 
complaint for failure to state a claim,10 Plaintiffs filed a 
letter motion for leave to amend the complaint. Plaintiffs 
included with their motion the FAC, which alleged (1) 
four constitutional claims for relief based on the 
Fourteenth Amendment, including for violations of their 
substantive due process rights, their “liberty interest in 
parenting,” their “liberty interest in informed consent,” 
and burdening a minor’s right to pursue an education, 
App’x at 761-66; and (2) two claims for relief under the 
Rehabilitation Act for discrimination based on the 
disability status of Plaintiffs’ children. 
  
The district court granted Defendants’ motions on 
February 17, 2021. Zucker, 520 F. Supp. 3d at 273-74. 
The district court rejected Plaintiffs’ argument that strict 
scrutiny applied and concluded that the new regulations 
were reasonably related to the State’s public health 
objectives of maintaining high vaccination rates in 
schools and ensuring that medical exemptions were issued 
based on evidence-based guidance. Id. at 253, 273. The 
district court also dismissed the Rehabilitation Act claims, 
concluding that Plaintiffs had failed to plead plausible 
claims of disability discrimination. Id. at 272-73. 
Judgment was entered accordingly. 
  
This appeal followed. 
  
 
DISCUSSION 
“We review de novo the denial of a motion to dismiss 
pursuant to Federal Rule of Civil Procedure 12(b)(6) for 
failure to state a claim upon which relief can be granted.” 
Drimal v. Tai, 786 F.3d 219, 223 (2d Cir. 2015). “To 
survive a motion to dismiss, a complaint must contain 
sufficient factual matter, accepted as true, ‘to state a claim 
to relief that is plausible on its face.’ ” 
Ashcroft v. 
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 
868 (2009) (quoting 
Bell Atl. Corp. v. Twombly, 550 
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). 
  
First, we consider whether the district court properly 
applied the motion to dismiss standard to the FAC. 
Second, we determine whether the new regulations violate 
Plaintiffs’ constitutional rights under the Fourteenth 
Amendment. Third, we address whether the regulations 
violate Plaintiffs’ rights under the Rehabilitation Act. We 
conclude that the district court did not err in granting 
Defendants’ motions to dismiss. 
  
 
 
A. The District Court’s Reliance on Documents Outside 
the FAC 
*5 Plaintiffs argue that the district court misapplied the 
Rule 12(b)(6) standards by relying on contested facts 
contained in exhibits submitted by Defendants in support 
of their motions to dismiss, as these were documents 
extrinsic to the FAC. For the reasons explained below, we 
hold that the district court properly relied on these 
documents. 
  
The district court took judicial notice of some of the 
exhibits submitted by Defendants in their motions to 
dismiss and determined that some exhibits were 
incorporated by reference into the FAC. Zucker, 520 F. 
Supp. 3d at 228-30. Relevant on appeal, it took judicial 
notice of: (1) recent legislative history of 
section 2164 
of the New York Public Health Law, (2) the Emergency 
Regulations dated August 16, 2019, and (3) the Final 
Regulations adopted December 31, 2019. Id. at 229. 
Additionally, it determined that the Commissioner of 
Education’s denial of Plaintiff Doe’s appeal was 
incorporated into the FAC, or, in the alternative, it took 
judicial notice of that decision. Id. It also determined that 
the ACIP Guidelines had been incorporated by reference 
because they were relied upon by the FAC. Id. 
  
Plaintiffs argue that these documents contradict facts 
alleged in the FAC; therefore, they contend, the district 
court’s reliance on them was improper. For instance, the 
FAC alleges that unvaccinated children do not present a 
significant risk to community health. See App’x at 761 
(alleging that “the risk to the community from” medically 
fragile children foregoing immunizations is “small 
enough that there is no compelling reason to narrow the 
scope of the medical exemption or place these burdens on 
it”). In contrast, the Emergency Regulations explain, for 
instance, that “because some individuals have chosen not 
to receive the [measles] vaccine and to not have their 
children vaccinated, outbreaks stemming from imported 
cases have occurred and new cases continue to occur in 
multiple counties across New York State.” Id. at 427-28. 
The FAC also disputes the public health benefits of some 
vaccines on the school vaccine schedule, which the ACIP 
Guidelines recommend. 
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The district court did not err in considering the materials 
in question. First, as a fundamental matter, courts may 
take judicial notice of legislative history. See 
Territory 
of Alaska v. Am. Can Co., 358 U.S. 224, 226-27, 79 S.Ct. 
274, 3 L.Ed.2d 257 (1959). The same is true for 
administrative record filings such as the denial of Plaintiff 
Doe’s appeal. See Kavowras v. N.Y. Times Co., 328 F.3d 
50, 57 (2d Cir. 2003). 
  
Second, a complaint is considered to include a document 
“incorporated in it by reference,” or “where the complaint 
relies heavily upon its terms and effect.” 
Chambers v. 
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) 
(internal quotation marks omitted). 
  
Third, it is true, as Plaintiffs argue, that when a court 
relies upon extrinsic materials “considered integral to the 
complaint, it must be clear on the record that no dispute 
exists regarding the ... accuracy of the document.” 
Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d 
Cir. 2016) (internal quotation marks omitted). While 
Plaintiffs challenge the accuracy of certain factual 
findings made by the State in promulgating the 
regulations (as set forth in the extrinsic materials), they 
misapprehend 
the 
extent 
of 
the 
district 
court’s 
consideration of those factual findings. To the extent that 
the district court relied on facts from the extrinsic 
materials that were in dispute, it did not rule on the factual 
accuracy of those materials; instead, it cited those 
materials to explain the decision-making of state 
authorities. See, e.g., Zucker, 520 F. Supp. 3d at 254-56; 
cf. 
Sensational Smiles, LLC v. Mullen, 793 F.3d 281, 
285 (2d Cir. 2015) (“[I]t is not the role of the courts to 
second-guess the wisdom or logic of the State’s decision 
to credit one form of disputed evidence over another.”). 
  
*6 We therefore conclude that the district court properly 
applied the 12(b)(6) motion standards in dismissing the 
FAC. 
  
 
 
B. Constitutional Challenges 
We next address Plaintiffs’ constitutional claims. 
Plaintiffs assert both facial and as applied challenges to 
the new regulations. 
  
As a facial matter, Plaintiffs contend that the new 
regulations are invalid because they permit school 
authorities to deny a request for a medical exemption 
from school immunization requirements even when a 
state-licensed physician certifies that a child is at risk of 
serious harm or death from a vaccine. In other words, they 
contend that because they have a “fundamental right to a 
medical exemption” from immunization requirements in 
these circumstances, the State must grant the exemption 
“without further review or interference” when their 
physicians 
certify 
the 
need 
for 
an 
exemption. 
Pls.-Appellants’ Br. at 2, 4. For their as applied claims, 
Plaintiffs allege that the individual school district 
officials’ conduct enforcing the new regulations violated 
their substantive due process rights. 
  
 
 
1. Applicable Law 
“ ‘[T]he touchstone of due process is protection of the 
individual against arbitrary action of government.’ ” 
Leebaert v. Harrington, 332 F.3d 134, 139 (2d Cir. 
2003) (quoting 
Cnty. of Sacramento v. Lewis, 523 U.S. 
833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). To 
determine whether a government regulation infringes a 
substantive due process right, we first “determine whether 
the asserted right is fundamental.” 
Id. at 140 (internal 
quotation marks omitted). “Rights are fundamental when 
they are implicit in the concept of ordered liberty, or 
deeply rooted in this Nation’s history and tradition.” 
Id. (internal quotation marks omitted). “When the right 
infringed is fundamental,” we apply strict scrutiny, and 
“the governmental regulation must be narrowly tailored to 
serve a compelling state interest.” 
Immediato v. Rye 
Neck Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996) (internal 
quotation marks omitted). When a “claimed right is not 
fundamental,” we apply rational basis review, and the 
“governmental regulation need only be reasonably related 
to a legitimate state objective.” 
Id. at 461. 
  
An as applied challenge “requires an analysis of the facts 
of a particular case to determine whether the application 
of a statute, even one constitutional on its face, deprived 
the [plaintiff] to whom it was applied of a protected 
right.” 
Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 
167, 174 (2d Cir. 2006). We use the shocks the 
conscience test to assess substantive due process 
challenges to government conduct. See, e.g., 
Velez 
v. Levy, 401 F.3d 75, 93-94 (2d Cir. 2005) (explaining 
that the plaintiff must “allege governmental conduct that 
‘is so egregious, so outrageous, that it may fairly be said 
to shock the contemporary conscience’ ” (quoting 
Lewis, 523 U.S. at 847 n.8, 118 S.Ct. 1708)); 
Hurd 
v. Fredenburgh, 984 F.3d 1075, 1087 (2d Cir.), cert. 
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denied, ––– U.S. ––––, 142 S. Ct. 109, 211 L.Ed.2d 31 
(2021). Accordingly, to determine whether government 
conduct infringes on a substantive due process right, we 
first identify the “constitutional right at stake” or the 
“deprivation of property” interest at issue. 
Kaluczky v. 
City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).11 If 
we identify either, we then assess whether the 
government’s alleged conduct shocks the conscience. See 
Velez, 401 F.3d at 93; 
Hurd, 984 F.3d at 1087. 
  
 
 
2. Application 
a. The Facial Challenge 
*7 Two questions are presented by the facial challenge: 
first, whether a fundamental right is implicated, such that 
strict scrutiny applies, and, second, once the appropriate 
level of judicial scrutiny is determined, whether the 
challenged regulations pass muster. 
  
 
i. Is a Fundamental Right Implicated? 
Plaintiffs contend that the new regulations violate their 
right to a medical exemption from school immunization 
requirements, their rights to life and liberty, and the rights 
of their children to an education. They argue that these 
rights are fundamental, and that therefore the regulations 
are subject to strict scrutiny. We are not persuaded, and 
we conclude that “fundamental rights” are not implicated. 
  
First, Plaintiffs’ assertion of rights is overstated. The State 
is not forcing any child to be vaccinated against her 
parents’ will. See 
Phillips v. City of New York, 775 
F.3d 538, 542 n.5 (2d Cir. 2015) (per curiam) (providing 
that New York’s school immunization law does not 
implicate substantive due process because it does not 
compel vaccination). Rather, the new regulations continue 
to permit a medical exemption (as required by the statute), 
and they clarify when an exemption is appropriate and 
specify how parents may seek an exemption. By requiring 
a physician to certify that a child “has a medical 
contraindication or precaution to a specific immunization 
consistent with ACIP guidance or other nationally 
recognized evidence-based standard of care,” N.Y. Comp. 
Codes R. & Regs. tit. 10, § 66-1.1(l), the new regulations 
require requests to comply with evidence-based national 
standards for the purpose of ensuring that physicians do 
not recommend medical exemptions in conclusory fashion 
or for non-medical reasons.12 
  
Second, Plaintiffs’ argument, at bottom, is that they have 
a “fundamental right” to obtain a medical exemption 
based solely on the recommendation -- or say-so -- of a 
child’s treating physician. But no court has ever held that 
there is a right to a medical exemption from immunization 
based solely on the recommendation of a physician. Nor 
has any court held that such a right is “implicit in the 
concept of ordered liberty, or deeply rooted in this 
Nation’s history and tradition.” 
Leebaert, 332 F.3d at 
140 (internal quotation mark omitted). Indeed, in 
Jacobson v. Massachusetts, the Supreme Court 
explained that medical exemptions from mandatory 
immunization laws may be limited to cases in which it is 
“apparent or can be shown with reasonable certainty” that 
the vaccine would be harmful. 
197 U.S. 11, 39, 25 
S.Ct. 358, 49 L.Ed. 643 (1905) (emphasis added). 
  
Third, the issue, of course, is not whether the Plaintiffs’ 
children have a right to a medical exemption. It is whether 
they are being deprived of their right to attend school 
because of the vaccine mandates. But, as the Supreme 
Court has made clear, there is no fundamental right to an 
education. See 
Plyler v. Doe, 457 U.S. 202, 223, 102 
S.Ct. 2382, 72 L.Ed.2d 786 (1982) (“Nor is education a 
fundamental right.”); see also 
Bryant v. N.Y. State 
Educ. Dep’t, 692 F.3d 202, 217 (2d Cir. 2012) (holding 
that “[t]he right to public education is not fundamental”).13 
While the right to an education is an important right, it is 
not a “fundamental right” such as to require strict scrutiny 
review. 
  
*8 Finally, as we further noted in 
Phillips, “no court 
appears ever to have held” that “
Jacobson requires that 
strict scrutiny be applied to immunization mandates.” 
775 F.3d at 542 n.5. To be sure, courts have 
consistently rejected substantive due process challenges to 
vaccination requirements without applying strict scrutiny. 
See, e.g., 
B.W.C. v. Williams, 990 F.3d 614, 622 (8th 
Cir. 2021); 
Workman v. Mingo Cnty. Bd. of Educ., 419 
F. App’x 348, 355-56 (4th Cir. 2011) (summary order); 
Boone v. Boozman, 217 F. Supp. 2d 938, 956-57 (E.D. 
Ark. 2002); cf. 
Immediato, 73 F.3d at 461 
(recognizing that parents “have a liberty interest, properly 
cognizable under the Fourteenth Amendment, in the 
upbringing of their children” but rejecting the argument 
that this liberty interest was a “fundamental” right and 
holding that “rational basis review is appropriate” when a 
“parental right” is “invoked against a state regulation” 
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(internal quotation marks omitted)). 
  
Accordingly, we conclude that the new regulations do not 
implicate a fundamental right, and that therefore strict 
scrutiny does not apply.14 
  
 
ii. Are the New Regulations Reasonably Related to a 
Legitimate State Objective? 
Instead, we apply rational basis review. The FAC’s 
substantive due process challenges are based principally 
on two provisions: (1) the new regulations’ definition of 
what “[m]ay be detrimental to the child’s health,” N.Y. 
Comp. Codes R. & Regs. tit. 10, § 66-1.1(l), and (2) the 
delegation to school officials of the authority to grant a 
medical exemption based on the new standards, 
N.Y. 
Pub. Health Law § 2164(7)(a). We conclude that both 
provisions are reasonably related to a legitimate state 
objective. 
  
First, there clearly is a legitimate state objective for both 
provisions: 
protecting 
communities 
from 
serious, 
vaccine-preventable diseases through immunization. See 
Phillips, 775 F.3d at 542 (noting that Supreme Court 
recognized in 
Jacobson “the State’s judgment that 
mandatory vaccination was in the interest of the 
population as a whole” (citing 
Jacobson, 197 U.S. at 
38, 25 S.Ct. 358)); see also 
Zucht v. King, 260 U.S. 
174, 176, 43 S.Ct. 24, 67 L.Ed. 194 (1922). Significantly, 
in 2018-2019, there was a measles outbreak in the State 
that was fueled by low vaccination rates in certain 
communities. See App’x at 139. The Health Department 
noted this outbreak when it proposed the new regulations: 
There currently exist outbreaks of measles in New 
York City and in the Counties of Rockland, Orange, 
and Westchester, and cases have also been identified in 
the County of Sullivan. Measles is a viral disease 
transmitted via the airborne route when a person with 
measles coughs or sneezes. It is one of the most 
contagious diseases known. ... 
*9 The measles vaccine is very effective and remains 
the best protection against the disease. ... 
.... However, because some individuals have chosen not 
to receive the vaccine and to not have their children 
vaccinated, outbreaks stemming from imported cases 
have occurred and new cases continue to occur in 
multiple counties across New York State. 
Id. 
  
Second, both provisions are reasonably related to 
furthering the State’s interest in protecting communities 
against serious disease. After the legislative repeal of the 
non-medical exemption, the State adopted the new 
regulations 
to 
enforce 
its 
school 
immunization 
requirements. The new regulations thus sought to conform 
the State’s immunization rules to “national immunization 
recommendations and guidelines” to curtail state-licensed 
physicians 
from 
issuing 
medical 
exemptions 
for 
non-medical reasons. Id. at 637. There was a real concern 
that with the elimination of the religious exemption, 
parents who did not want their children vaccinated would 
seek a medical exemption even when such an exemption 
was not warranted. See id. at 428 (noting that, “[i]n 2015, 
the State of California removed non-medical exemptions 
to school immunization requirements without taking steps 
to strengthen the rules governing medical exemptions,” 
and that over “the next three years, the use of [those] 
exemptions to school immunization requirements more 
than tripled”). 
  
The statute at issue here provides that a child may be 
exempted from immunization if any state-licensed 
physician certifies that “immunization may be detrimental 
to [the] child’s health,” 
N.Y. Pub. Health Law § 
2164(8), and the new regulations define that phrase, 
specifying the circumstances that warrant a medical 
exemption. N.Y. Comp. Codes R. & Regs. tit. 10, § 
66-1.1(l). The definition narrows the availability of this 
exemption to medical contraindications and precautions 
consistent with either the ACIP Guidelines or “other 
nationally recognized evidence-based standard of care.” 
Id. In other words, exemptions are now only to be granted 
if they are consistent with evidence-based national 
standards of care such as, but not limited to, the ACIP 
Guidelines.15 Cf. 
Rodriguez v. City of New York, 72 
F.3d 1051, 1062 (2d Cir. 1995) (interpreting New York’s 
involuntary commitment statute as implicitly requiring 
that a physician’s decision “be made in accordance with 
the standards of the medical profession”). Plainly, the 
regulations seek to ensure that the risk of harm to a child 
from vaccination is genuine. 
  
We further conclude that there is a reasonable relationship 
between the delegation of authority to school districts to 
review and approve medical exemption requests and 
protecting communities from serious diseases. New York 
State law, as it has for decades, delegates to school 
officials the authority to grant a medical exemption from 
the State’s school immunization requirements. See 
N.Y. Pub. Health Law § 2164(7)(a); N.Y. Comp. 
Codes R. & Regs. tit. 10, § 66-1.3(c). The Supreme Court 
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has held that states may grant school district officials 
“broad discretion” to apply and enforce health law, 
including mandatory immunization laws. See 
Zucht, 
260 U.S. at 175-76, 43 S.Ct. 24 (rejecting argument that 
school immunization requirement was unconstitutional 
because it gave local authorities discretion “to determine 
when and under what circumstances the requirement shall 
be enforced”). The new regulations do not undermine this 
long-standing discretion or any right to a medical 
exemption. Moreover, if a medical exemption is denied 
by school authorities, a parent has the right to appeal the 
denial to the Commissioner of Education or to seek 
judicial review in state court through an Article 78 
proceeding. 
  
*10 Accordingly, we agree with the district court that the 
new regulations and the State’s delegation of enforcement 
authority to school officials are reasonably related to a 
legitimate state objective, and that they therefore satisfy 
rational basis review.16 
  
 
b. The As Applied Challenge 
In its decision below, the district court carefully reviewed 
the claims against the School District Defendants, 
including the individual school district officials, based on 
their implementation of the new regulations. It concluded 
that the FAC failed to plausibly allege any substantive 
due process claims against them. Zucker, 520 F. Supp. 3d 
at 257-66. 
  
We agree that the FAC fails to assert plausible claims 
against any of the individual school district officials, 
substantially for the reasons set forth by the district court 
in its decision below. As the district court concluded, the 
FAC did not plausibly allege an infringement of a 
constitutional right or the deprivation of a property 
interest in education. Id. at 258. The district court also 
correctly concluded that the FAC failed to plausibly 
allege that the individual school district officials engaged 
in 
conduct 
that 
was 
“outrageous,” 
“arbitrary,” 
“irrational,” or “conscience shocking.” Id. at 259, 261-64, 
266 (internal quotation marks omitted). 
  
Finally, as the district court correctly concluded that the 
FAC 
failed 
to 
plausibly 
allege 
any 
underlying 
constitutional violations, it did not err in dismissing the 
municipal liability claims against the School District 
Defendants. See 
Segal v. City of New York, 459 F.3d 
207, 219 (2d Cir. 2006) (“Because the district court 
properly found no underlying constitutional violation, its 
decision not to address the municipal defendants’ liability 
under 
Monell [v. Department of Social Services, 436 
U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),] was 
entirely correct.”). 
  
*11 Accordingly, we affirm the dismissal of Plaintiffs’ 
constitutional claims. 
  
 
 
C. Rehabilitation Act Claims 
Finally, we address whether the district court properly 
dismissed Plaintiffs’ Rehabilitation Act claims, which 
allege that the new regulations violate the Rehabilitation 
Act by excluding Plaintiffs’ children from school because 
of their disabilities, that is, because they “cannot safely 
take one or more of the mandatory vaccines.” 
Pls.-Appellants’ Br. at 75. 
  
The Rehabilitation Act provides that “[n]o otherwise 
qualified individual with a disability ... shall, solely by 
reason of her or his disability, be excluded from the 
participation in, be denied the benefits of, or be subjected 
to discrimination under any program or activity receiving 
Federal financial assistance.” 
29 U.S.C. § 794(a). As 
described in their main brief on appeal, Plaintiffs contend 
that “Defendants adopted discriminatory policies which 
exclude whole categories of disabled children from the 
protection of a medical exemption from the vaccine 
requirements.” Pls.-Appellants’ Br. at 74-75. 
  
As a threshold matter, the district court dismissed the 
Rehabilitation Act claims against the individual school 
district officials in their individual capacity on the basis 
that the Rehabilitation Act does not provide for individual 
liability. See 
Garcia v. S.U.N.Y. Health Scis. Ctr. of 
Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“[N]either 
Title II of the ADA nor § 504 of the Rehabilitation Act 
provides for individual capacity suits against state 
officials.”); see also Perros v. Cnty. of Nassau, 238 F. 
Supp. 3d 395, 402 n.3 (E.D.N.Y. 2017) (“[I]t is 
well-established that there is no individual liability under 
the ADA or the Rehabilitation Act, whether the individual 
is sued in their official or individual capacity.”). Plaintiffs 
have not challenged this ruling in their briefs on appeal, 
and thus we affirm the dismissal of the Rehabilitation Act 
claims against the individual school district officials.17 
  
As to the merits of the Rehabilitation Act claims, 
“[e]xclusion or discrimination may take the form of 
disparate treatment, disparate impact, or failure to make a 
reasonable accommodation.” B.C. v. Mount Vernon Sch. 
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Dist., 837 F.3d 152, 158 (2d Cir. 2016). While Plaintiffs 
continue to press all three forms of discrimination in their 
briefs on appeal, they do so in a wholly conclusory 
manner. All three forms of claims fail in any event, for 
the FAC fails to plausibly allege that Plaintiffs’ children 
were excluded from participating in any federally-funded 
program or activity “solely by reason of her or his 
disability.” 
29 U.S.C. § 794(a). 
  
First, the new regulations apply to all students, and not 
just to students with disabilities. See N.Y. Comp. Codes 
R. & Regs. tit. 10, § 66-1.1(b) (providing that “Child,” for 
purposes 
of 
the 
State’s 
school 
immunization 
requirements, “means and includes any person between 
the ages of two months and 18 years”). Thus, all students 
must comply with the new regulations, not just disabled 
students. See 
Bryant, 692 F.3d at 216 (dismissing 
claims 
that 
New 
York 
law 
barring 
“aversive 
interventions” in education violates the Rehabilitation 
Act, noting that “[t]he regulation applies to all students, 
regardless of disability”). 
  
*12 Second, the new regulations do not bar students with 
disabilities from schools because of their disabilities. 
Children who cannot be safely vaccinated because of their 
disability will receive a medical exemption and may 
attend school, so long as they can demonstrate a medical 
need, based on a national evidence-based standard, for an 
exemption. Under the new regulations, a state-licensed 
physician can still certify the need for a medical 
exemption based on her clinical judgment, and an 
exemption will be granted if that judgment is based on 
evidence (and not merely her say-so) and is consistent 
with a nationally recognized evidence-based standard of 
care. Again, to the extent there is a disagreement on 
whether the requirements are met in any particular case, 
parents can appeal to the Commissioner of Education and 
seek judicial review in the state court system through an 
Article 78 proceeding. 
  
Plaintiffs’ children here were denied medical exemptions 
not because of their disabilities, but because they 
admittedly failed to comply with the new procedures, 
which, as we have concluded above, are reasonably 
related to furthering a legitimate state objective.18 
  
Notably, in D.A.B. v. New York City Department of 
Education, the district court rejected claims under, inter 
alia, the Rehabilitation Act. The parents of a child with 
autism brought suit after they were denied a medical 
exemption for their child from mandatory vaccination 
based on a letter from a pediatrician attesting to a “ 
‘history of adverse reactions’ to vaccinations.” D.A.B. v. 
N.Y.C. Dep’t of Educ., 45 F. Supp. 3d 400, 403, 407 
(S.D.N.Y. 2014). The New York City Department of 
Education denied the request because it found “no 
medical basis for the exemption.” Id. at 403. The district 
court concluded that the Rehabilitation Act claim lacked 
merit because the plaintiffs could not show that the child 
“was excluded from school ‘solely by reason’ of his 
disability.” Id. at 407 (quoting 
29 U.S.C. § 794(a)). It 
reasoned that school immunization requirements that 
constitute a “more limited, generally applicable law 
intended to limit the spread of contagious disease,” that 
allow “the possibility of exemptions,” do not discriminate 
in violation of the Rehabilitation Act. Id. We affirmed in a 
non-precedential summary order, concluding: “for the 
reasons well stated by the district court, no reasonable 
juror could conclude that [the Department] discriminated 
against [the child] because of his disability.” D.A.B. v. 
N.Y.C. Dep’t of Educ., 630 F. App’x 73, 79 (2d Cir. 2015) 
(summary order).19 
  
We therefore conclude that Plaintiffs fail to plausibly 
allege that they were excluded from school “solely by 
reason of” their disabilities, and we hold that the district 
court did not err in dismissing the Rehabilitation Act 
claims. 
  
 
CONCLUSION 
*13 For the reasons set forth above, the district court’s 
judgment is AFFIRMED. 
  
All Citations 
--- F.4th ----, 2022 WL 3007919 
 
Footnotes 
 
* 
The Clerk of the Court is respectfully directed to amend the official caption to conform to the above. 
 
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1 
Members of the ACIP include “health-care providers and public health officials,” including “professionals from 
academic medicine (pediatrics, family practice, and pharmacy); international (Canada), federal, and state public
health professionals; and a member from the nongovernmental Immunization Action Coalition.” App’x at 445. The 
ACIP Guidelines were intended to help “clinicians and other health care providers who vaccinate patients in varied 
settings,” id. at 442, (1) “assess vaccine benefits and risks,” (2) “use recommended administration practices,” (3) 
“understand the most effective strategies for ensuring” high vaccination coverage in the population, and (4) 
“communicate the importance of vaccination to reduce the effects of vaccine-preventable disease,” id. at 443. 
 
2 
Defendants fall into two groups: first, Howard Zucker (Health Department Commissioner), Elizabeth Rausch-Phung 
(Director of the Bureau of Immunizations at the Health Department), and the Health Department (collectively, the 
“State Defendants”), and, second, the school districts, including their individually named school district officials and
David Migliorino, a principal at a private school within one of the named school districts (collectively, the “School 
District Defendants”). 
 
3 
In addition to granting Defendants’ motions to dismiss, the district court denied Plaintiffs’ motion for leave to
amend their complaint as futile. Doe v. Zucker, 520 F. Supp. 3d 217, 273 (N.D.N.Y. 2021). Although Plaintiffs’ notice
of appeal states that they are appealing from, inter alia, the denial of their motion for leave to amend their
complaint, their briefs on appeal do not address that aspect of the district court’s ruling. Moreover, the district court 
considered the merits based on Plaintiffs’ proposed First Amended Complaint (the “FAC”). Hence, the operative 
complaint is the FAC, and we need not address the district court’s denial of the motion for leave to amend. 
 
4 
Section 2164(7)(a) 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 the certificate 
[showing the requisite immunization] or some other acceptable evidence of the child’s immunization against [the 
specified diseases].” 
 
5 
See Sharon Otterman, New York Confronts Its Worst Measles Outbreak in Decades, N.Y. Times (Jan. 17, 2019),
https://www.nytimes.com/2019/01/17/nyregion/measlesoutbreak-jews-nyc.html (“In 2018, New York and New 
Jersey accounted for more than half the measles cases in the country.”); Pam Belluck & Adeel Hassan, Measles
Outbreak Questions and Answers: Everything You Want to Know, N.Y. Times (Feb. 20, 2019),
https://www.nytimes.com/2019/02/20/us/measles-outbreak.html (reporting, in 2019, that “[t]he United States [ ] 
experience[d] the worst measles outbreak in decades ... [with] New York ha[ving] been particularly hard hit, with 
outbreaks centered in suburban Rockland County and in Brooklyn”). 
 
6 
See Nat’l Conf. State Legislatures, States With Religious and Philosophical Exemptions From School Immunization 
Requirements 
(May 
25, 
2022),
https://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx (last visited July 27, 2022). 
 
7 
In addition, the ACIP Guidelines provide a list of conditions or circumstances that are neither a recognized 
contraindication nor a precaution, including, for example, mild acute illness, a history of penicillin allergy, or contact 
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with persons who have a chronic illness or altered immunocompetence. 
 
8 
Some of the conditions that Plaintiffs allege form the basis of these requests include “multiple chronic and serious
conditions,” an “acute illness” “concerning [the] meningococcal vaccine,” a “current state[ ] of vulnerable health and 
[ ] genetic analysis and family history of significant adverse vaccine reactions,” being “at substantial risk of having”
“severe reactions” to immunization, “a flare up of [ ] acute autoimmune conditions,” an “anaphylactic reaction to [a]
hepatitis B vaccine given at birth,” and “P.A.N.S./P.A.N.D[.]A.S.,” a form of “autoimmune encephalopathy.” App’x at 
704, 712, 715, 719, 722-23, 726, 732. 
 
9 
Goe’s daughter was “set to graduate on July 30, 2020.” Id. at 725. 
 
10 
The day after the State Defendants filed their motion to dismiss, Plaintiffs filed a motion for a temporary restraining 
order and preliminary injunction to enjoin application of the new regulations and to bar schools from prohibiting 
enrollment based on the regulations. The district court denied Plaintiffs’ motion. On November 13, 2020, Plaintiffs 
appealed the district court’s denial to this Court, filing a motion for emergency injunction pending appeal. This Court 
denied Plaintiffs’ motion on January 6, 2021. Plaintiffs then filed an emergency application for writ of injunction with
the Supreme Court on January 25, 2021. The application was denied. 
 
11 
Other circuits require the substantive due process violation of a fundamental right. See, e.g., Van Orden v. Stringer, 
937 F.3d 1162, 1167 (8th Cir. 2019) (“To prevail on an as-applied substantive due process claim, the [plaintiffs] must 
show both that the state officials’ conduct is conscience-shocking and that it violated a fundamental right of the 
[plaintiffs].” (emphasis added)). 
 
12 
We need not decide here whether schoolchildren may have medical conditions that place them at risk of serious 
harm from a vaccine but that are not covered by the national standards. To the extent that the regulations allow the
State to exclude a child from education notwithstanding a condition that places the child at serious risk if
vaccinated, if the condition is not recognized by nationally accepted standards, as we conclude below, states are 
free in the interest of protecting public health to impose such standards on a rational basis. 
 
13 
The Supreme Court has explained that 
[e]ducation, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do 
we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education 
will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic 
legislation. 
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). 
 
14 
Plaintiffs rely on 
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 
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L.Ed.2d 674 (1992), 
Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and their progeny to argue 
that the new regulations infringe on their fundamental rights to health and life and to rely on the medical judgment 
of their treating physicians. The Supreme Court, however, recently overruled 
Casey, along with 
Roe v. Wade, 
410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Dobbs v. Jackson Women’s Health Org., 597 U.S. ––––, 142 S. Ct.
2228, ––– L.Ed.2d –––– (2022). Moreover, to the extent the cases still provide support for the propositions that a
state cannot prevent abortions that are necessary to protect the health or life of a woman or hinder the 
independent medical judgment of a treating physician to recommend an abortion, the cases are distinguishable. 
Here, the State is not compelling Plaintiffs to vaccinate their children, but merely requiring them to be vaccinated or 
to obtain a medical exemption from the immunization mandate -- if they wish to attend a school in the State. The 
choice to vaccinate a child remains with the parent and her treating physician. For these same reasons, we also 
reject Plaintiffs’ liberty interest in parenting and liberty interest in informed consent claims. 
 
15 
Contrary to the FAC’s allegations, this definition is not, on its face, arbitrarily narrow. For instance, as the district 
court noted, one of the permissible medical exemption forms under the new regulations references guidance
“described in the vaccine manufacturers’ package insert.” Zucker, 520 F. Supp. 3d at 255 (internal quotation marks 
omitted); see also S. App’x at 96. 
 
16 
We also reject Plaintiffs’ argument that the new regulations violate the unconstitutional conditions doctrine by
conditioning receipt of a benefit -- access to education -- on the waiver of a constitutional right. The unconstitutional 
conditions doctrine provides that the government may not deny a person a benefit “on a basis that infringes his 
constitutionally protected interests.” 
All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 231 
(2d Cir. 2011), aff’d sub nom. 
Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 133 S.Ct. 2321, 
186 L.Ed.2d 398 (2013) (quoting 
Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), 
overruled on other grounds by 
Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)). That 
doctrine, in other words, prevents the state from granting and withholding benefits as a stick to coerce recipients of
those benefits to engage in certain behavior where, if the state regulated that behavior directly, that regulation 
would be a constitutional violation. Here, Plaintiffs have failed to plausibly allege that in enacting the challenged 
regulations, the State has “infringe[d]” upon any “constitutionally protected right[ ].” 
All. for Open Soc’y Int’l, 
Inc., 651 F.3d at 231. The State’s decision to narrow the availability of medical exemptions to cases where a “child
has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other
nationally recognized evidence-based standard of care,” N.Y. Comp. Codes R. & Regs. tit. 10, § 66-1.1(l), does not 
unconstitutionally infringe upon Plaintiffs’ substantive due process rights. See 
Phillips, 775 F.3d at 542. The
conditional receipt of an education on compliance with the regulation cannot, therefore, be an unconstitutional 
condition. 
 
17 
We note also that the FAC dropped the claims against most, but not all, of the individual Defendants in their official 
capacity. 
 
18 
As the district court concluded, while “Plaintiffs felt that their serious medical issues compelled them not to comply”
with the State’s school immunization requirements, Plaintiffs’ “exclusion from school ultimately resulted from their 
decisions not to comply with a condition for school enrollment permissibly set by the state.” Zucker, 520 F. Supp. 3d
at 258-59. 
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19 
Plaintiffs argue that the new regulations unlawfully “narrow medical exemption criteria” and that “children with 
disabilities that fall outside of the non-exhaustive ACIP contraindications are discriminated against and denied
benefits to which they are otherwise entitled.” Pls.-Appellants’ Reply Br. at 28. We are not persuaded. As discussed 
above, the definition of what “[m]ay be detrimental to the child’s health” is not so narrow as to preclude the use of 
non-ACIP Guideline recognized contraindications and preconditions. N.Y. Comp. Codes R. & Regs. tit. 10, § 66-1.1(l). 
The definition, on its face, recognizes medical contraindications or precautions consistent with other nationally
recognized evidence-based standards of care. Id. Thus, a physician may still certify a medical exemption for a
contraindication or precaution that is consistent with any nationally recognized evidence-based standard of care. 
 
 
 
 
End of Document 
 
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