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12/14/01 - Posted 11:54:09 PM from the
Daily Record newsroom
Judge tosses out suit over inoculation
for boy, 11
Sparta family says he shouldn’t have been kept out of school
By Peggy Wright, Daily Record
A judge dismissed a Sparta family’s lawsuit against the school district
Thursday, ruling that the parents should take their opposition to
inoculating their 11-year-old son against hepatitis B to the state
commissioner of education.
Superior Court Judge Kenneth C. MacKenzie’s dismissal of the lawsuit
filed by Richard and Donna Shaftan on behalf of their sixth-grade son,
Zachary, means the boy will not be returning to class in the immediate
future. Since the boy has not received the state-mandated inoculation — a
shot his parents believe is medically unnecessary — the district has barred
him from classes since Nov. 2.
Richard Shaftan was incensed by portions of the judge’s eight-page
ruling, particularly its mention that allowing the boy back into school
"would place the general student body at Sparta Middle School at risk
of (contracting) a communicable disease recognized by the Department of
Health."
"You have to wonder how someone can write that statement and be
sitting on the bench," said Shaftan, who is considering all avenues of
appeal, including going to the state education commissioner.
He believes the requirement erroneously puts schoolchildren into a
category of people with high-risk behavior such as sexual promiscuity and
intravenous drug use, who are more likely to contract hepatitis B. His
lawyer, Michael Patrick Carroll, had argued to the judge that he could find
no evidence of a grade-school child contracting the disease in a school
setting.
In court arguments Tuesday, Carroll, who also is an assemblyman
representing Morris County, argued that the parents have a constitutional
right to control and supervise the medical needs of their children. Carroll
also argued that keeping Zachary out of class was denying him his right to
an education.
The judge cited cases that hold that parents do not have an absolute
right of authority on all aspects of their children’s upbringing. He also
concluded that the Shaftans should have exhausted all their administrative
remedies, including an appeal to the education commissioner, before turning
to the courts. The commissioner’s office is the appropriate jurisdiction
for handling disputes arising out of school laws, MacKenzie found.
School board attorney Allan Dzwilewski and state Deputy Attorney General
Douglas M. Alba had argued for outright dismissal of the case or a transfer
to the education commissioner. Dzwilewski had noted that Zachary also is
not being deprived of an education because the parents can home-school him
— as they now are doing — if they don’t want to comply with public school
laws.
To receive an injunction against the district from barring Zachary, the
Shaftans had to prove in part that he would suffer irreparable harm if not
allowed to return to school. The judge said the Shaftans were to blame for
choosing not to abide by the inoculation mandate.
"Here, the court fails to see irreparable harm where the harm
results from plaintiffs’ own election not to go to school," he wrote.
The requirement that went into effect in September calls for children
born on or after Jan. 1, 1990, and entering grade 6 or a comparable special
education class to be vaccinated against hepatitis B. It makes exceptions
for people who prove medical or religious reasons to refuse the
vaccination, but the Shaftans’ opposition was philosophical.
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