Judge rejects suit over hepatitis shot

12/14/01

BY JIM LOCKWOOD
STAR-LEDGER STAFF

A state judge yesterday dismissed a lawsuit filed by a Sparta couple who sought to overturn a new state regulation requiring a hepatitis B vaccination for their 11-year-old son.

Superior Court Judge Kenneth MacKenzie denied a request by Richard and Donna Shaftan of Sparta to order Sparta Middle School to allow their son, Zachary, to return to his sixth-grade classes while their lawsuit was pending.

MacKenzie went even further and dismissed the case outright.

"This is as good as a result as we could have asked for," said Allan Dzwilewski, the Sparta school board attorney. "It was by far the right decision. It's really a slam dunk from our perspective."

Richard Shaftan said he would keep home-schooling Zachary for now as he continues fighting the new state mandate, which took effect in September. He is reviewing whether an appeal would best be filed at the state or federal level.

"This is not going away because the system is not going to sustain a policy that has no public support. This policy has no public support," said Shaftan, who works as a conservative political consultant.

The immediate issue was an injunction sought by the Shaftans to have Zachary allowed back into school while the lawsuit proceeded, even though he has not had the vaccination.

The boy was suspended Nov. 2 because his parents have refused to have him inoculated against hepatitis B, a virus that can cause cancer and chronic liver disease and is spread by infected blood and bodily fluids.

On Nov. 7, the Shaftans sued the Sparta school board and the state over the mandate, arguing that the vaccine is unnecessary for youths because hepatitis B is spread mainly by adults through risky sex or drug use. They also claimed their constitutional rights are being violated because the new rule tramples parental rights to make medical decisions for their children.

On Nov. 13, MacKenzie denied an immediate request by the Shaftans to have Zachary returned to school, and that decision was upheld by an appellate judge a day later.

In seeking the injunction, the Shaftans had to show the new rule and suspension were causing "irreparable harm" but failed to do so because they are home-schooling Zachary and had not claimed any religious or moral exemption to the vaccine, the judge said.

"The court fails to see irreparable harm where the harm results from plaintiffs' own election not to go to school," MacKenzie said.

The parents also failed to show a likelihood that their lawsuit could prevail and that the inoculation "impedes their right to rear their child as they see fit," MacKenzie ruled.

Rather, ordering the boy back into school without the hepatitis B inoculation would place the student body at Sparta Middle School at risk of contracting a communicable disease, MacKenzie said.

Richard Shaftan called that reasoning "completely ridiculous."

The Shaftans also should have first taken their argument before the state education commissioner, the judge said. He questioned the lawsuit's constitutional claim, saying "constitutional rights of parents to decide the upbringing of their children is not without limits."

The new rule, which went into effect in September, requires schoolchildren to be vaccinated against the hepatitis B virus as a condition of enrollment.

Kindergarten, first- and sixth- grade pupils must have had the first of the vaccine's three shots by Nov. 1 or face suspension, unless exempted for religious or medical reasons.

Because pediatricians have routinely administered hepatitis B vaccines during the past decade, about 90 percent of the state's 1.3 million schoolchildren are already inoculated and the new rule aims to cover the rest, the state Department of Health has said.

Forty-two other states require youths to be vaccinated against hepatitis B.

Jim Lockwood covers Sussex County. He can be reached at jlockwood@starledger.com or (973) 383-0516.

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