Full text
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
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 1 of 14 PageID: 808
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
1
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.
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 2 of 14 PageID: 809
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
2
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
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 3 of 14 PageID: 810
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
3
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.
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 4 of 14 PageID: 811
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
4
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.
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 5 of 14 PageID: 812
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
5
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.
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 6 of 14 PageID: 813
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
6
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”
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 7 of 14 PageID: 814
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
7
(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
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 8 of 14 PageID: 815
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
8
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.
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 9 of 14 PageID: 816
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
9
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.
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 10 of 14 PageID: 817
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
10
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
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 11 of 14 PageID: 818
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
11
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
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 12 of 14 PageID: 819
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
12
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.
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 13 of 14 PageID: 820
Goe v. Zucker, --- F.4th ---- (2022)
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
13
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
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:21-cv-15333-ZNQ-TJB Document 49 Filed 08/02/22 Page 14 of 14 PageID: 821