A federal judge has allowed a student not vaccinated for whooping cough to go back to class at Starpoint Middle School as her parents press a First Amendment retaliation case against school and district officials.
The Niagara County parents, after the state Education Department ruled against them, sought a court order directing the Starpoint Central School District to accept their child's vaccine exemption request and permit her to return to school.
U.S. District Judge John L. Sinatra Jr. cautioned the parents' lawyers not to read too much into his preliminary order allowing her to return, given what he called the "many open questions" in the early stages of the lawsuit.
The judge scheduled a hearing for Feb. 7, when he could reconsider his decision after depositions and testimony from doctors and others involved in the case.
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A lawyer for the district warned that the child's return to class puts immunocompromised students, teachers and staff members at risk.
"For Your Honor to sit in judgment and say this was proper or not, and 'I'm going to reverse this or not,' and send her back to school I think is beyond your jurisdiction," said attorney Michael McClaren, who represents the school district, at a recent court hearing.
McClaren said he has represented school districts for about 25 years, "and this is the first time I've ever seen a situation where somebody brought a claim to federal court regarding the denial of a vaccine exemption."
Lawyers for the parents say the child has a medical exemption form signed by a physician for that one vaccine - she's on schedule for all other vaccines - but the district refuses to accept it.
The redacted 43-page lawsuit available to the public blacks out the child's medical information. But the back-and-forth during two court proceedings and other documents make it clear what harm the parents believe the diphtheria-tetanus-pertussis vaccine poses the child: vocal and motor tics.
During one recent proceeding, the judge summarized a document from the child's physician saying she has a history of neurological reactions to the vaccine in the form of vocal and motor tics.
"If you look at the specific vaccine waiver, it doesn't just include tics," Chad Davenport, the parents' attorney, said in court. "What it says is a neurological disorder. And a neurological disorder consists of motor and vocal tics.
"The district is basically saying that tics would not constitute a neurological disorder," Davenport said. "Their interpretation is completely irrational and not based on any medical evidence."
The district's actions against the middle school student and her sister, a high school student who reluctantly got the vaccine under pressure, should be viewed within a broader policy context in New York State, according to the lawsuit.
"Medical providers face systematic pressure not to document vaccine reactions or grant medical exemptions," according to the lawsuit.
"Multiple physicians have confirmed facing threats to their medical licenses if they document vaccine reactions or grant medical exemptions, creating a climate of fear that prevents students like plaintiffs' children from obtaining necessary documentation despite clear medical contraindications," according to the lawsuit, filed on behalf of the parents by Davenport and attorney R. Anthony Rupp III.
Seeking more information
Sean M. Croft, Starpoint's superintendent of schools, said the denial in December of the child's exemption request was proper.
"The district's decision is consistent with the medical guidance from the district's medical director, New York State Department of Health regulations, and New York State Education Department directives, all of which are clear and consistent on the matter of vaccination exemptions," Croft told The Buffalo News.
"Throughout this process we have remained engaged with the family and offered accommodations to support the student's learning with hopes of reaching a resolution," Croft added. "If resolution can only be achieved through a court order, we believe that state court is the appropriate jurisdiction, given its clear guidelines and proven procedures for hearing matters related to state health and education regulations."
A pediatrician who serves as the district's school physician said in a court filing that the vocal and motor tics described in the child's exemption request are not contraindications or precautions to the Tdap vaccine according to the guidelines issued by the Centers for Disease Control and Prevention.
"We went to them in good faith and said give us more information," McClaren said in court. "Give us your records. Let our doctor, let the New York State Department of Health, take a look at all this and make a determination. And they came out and said no."
The parents refused to turn over their child's medical information because the district lacks discretion to overrule the physician-approved exemption, their lawyer said.
"The district wants to be able to second-guess a valid medical waiver that's written by a licensed physician," Davenport said. "By denying a valid medical vaccine waiver, they are infringing on my clients' First Amendment rights and 14th Amendment (equal protection) rights to be able to make determinations for their own children."
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If the vaccine waiver form complies with the state's requirements, the district has to accept it, Davenport said.
McClaren said no court has ever held that a vaccine waiver is absolute based solely on the recommendation of a physician.
The judge also pushed back on the notion the district must rubber-stamp a waiver signed by a doctor.
"If the doctor wrote that the (child) can't take this vaccine because it makes her smell funny every time she takes the vaccine, don't you think the (school and district officials) would would be able to throw a penalty flag there?" Sinatra asked the parents' lawyers at a hearing.
As the case proceeds, Sinatra said he would like to know how often the school district asks for more information from other parents seeking vaccine exemptions, "or is it just jerking around this family?"
Sinatra said he also wants to know if the district "frequently, sometimes or never" gets input from the state Health Department or simply relies on its school physician when dealing with waiver requests.
"How many times out of a hundred does the district refuse to accept an exemption?" Sinatra asked.
Retaliation alleged
The parents' Dec. 28 lawsuit names district administrators, the school physician, a middle school nurse and the middle school and high school principals as defendants.
The district allowed other unvaccinated students to remain in school with future or unscheduled vaccination appointments, according to the lawsuit.
For most of the school year, the parents' children have attended classes as well.
In late September, the district's then-acting superintendent denied the medical exemption requests for the parents' two children.
On Oct. 10, the parents filed a petition with the state education commissioner seeking an expedited ruling on the validity of medical exemptions and a stay of the district's denial and removal of the administrator for "willful violation of law and neglect of duty."
The commissioner denied the stay 11 days later. On Oct. 21, the high school principal approached the older daughter in the school parking lot at the start of the school day and, although apologetic, told her to leave school grounds immediately, despite knowing she had a confirmed vaccination appointment, according to the lawsuit.
The district also prevented her from competing in an Oct. 22 cheerleading competition.
On Oct. 23, the high school student tried to get vaccinated at the Niagara County Health Department. But the department refused to administer the vaccination because of the medical waiver she also received from a physician.
"The Health Department's refusal to vaccinate (her) demonstrates that a New York State agency recognized and accepted the validity of the medical exemption waiver, in direct contradiction to the district's position," according to the lawsuit. "Despite being a school district without medical expertise, defendants rejected the same medical waiver that the Niagara County Health Department - the agency actually responsible for public health - found sufficiently valid to refuse vaccination."
Instead, the high school child went to a Rochester clinic to receive the vaccine, under "extreme duress."
The symptoms that followed her vaccination were redacted in the publicly available court filing. She returned to school on Oct. 23.
As for the middle school child, the district allowed her to attend classes ahead of and after her Dec. 3 medical appointment, according to the lawsuit. That was under the assumption she would get the vaccination, the district's lawyer said in court.
That stance changed the first week of January.
Davenport called the district's decision to keep her out of the classroom this month "completely unnecessary."
"She had been attending school for the past month without any issues," he said in court.
She fell behind in her classes and was sad after the decision to keep her out the classroom, he said.
The parents believe the district has treated their children differently because they exercised their legal right to file a commissioner's appeal, according to the lawsuit.
Patrick Lakamp can be reached at [email protected]
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