Hepatitis B case back in court

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12/12/01 - Posted 11:15:42 PM from the Daily Record newsroom



Hepatitis B case back in court



By Peggy Wright, Daily Record



The case of a Sparta sixth-grader whose parents oppose a state rule requiring him to get a hepatitis B vaccination was back in court Tuesday, and a judge said he’ll decide by today if the boy can return to class without the inoculation.



Zachary Shaftan, a bespectacled 11-year-old who has been barred from classes at the Sparta Middle School since Nov. 2, sat at a table with his father, Richard Shaftan, and their attorney, Michael Patrick Carroll, during arguments before Superior Court Judge Kenneth C. MacKenzie in Morristown.



The judge on Nov. 13 denied an initial request by the Shaftans to block the Sparta Board of Education from keeping their son out of school until he complied with a state regulation calling for inoculation against the hepatitis B virus. Tuesday, Carroll renewed his arguments that the rule violated the Shaftans’ constitutional right to control their son’s medical care and said that no "compelling governmental interest" has been established to make the parents comply.



School board attorney Allan P. Dzwilewski asked the judge to dismiss the parents’ lawsuit against the Sparta district, as did state Deputy Attorney General Douglas M. Alba, who defended the new inoculation requirement that went into effect this September. It calls for children born on or after Jan. 1, 1990, and entering grade 6 or a comparable special education unassigned grade to be vaccinated against hepatitis B.



MacKenzie said he expects to issue a written decision by today. If it is against the Shaftans, Richard Shaftan said he will appeal, even up to the U.S. Supreme Court if necessary.



Attorney Andrew L. Schlafly, a Shaftan supporter who said he represented the Association of American Physicians and Surgeons, was present at the hearing. He is the son of Phyllis Schlafly, president of the Eagle Forum, a nationally known organization that supports conservative, traditional values.



Shaftan has called hepatitis B "the junkie’s disease." He believes the vaccination is unnecessary and invasive, and that young school-age children do not need to be inoculated against a virus he believes primarily strikes intravenous drug users and promiscuous people. Carroll argued that Zachary Shaftan is being denied his constitutional right to a free public education because of unyielding enforcement of the regulation.



"There is no proof that there has ever been a case where hepatitis B has been passed in the educational context," Carroll said. "There is no scenario in which the inoculation has anything to do with school."



Alba said the state has already established a compelling need to immunize public school children against certain diseases and that the issues raised by the Shaftans are akin to views aired in public hearings last year held by the state Public Health Council. Dzwilewski added that Zachary is not being deprived of an education because his parents have the right to home-school him — and in fact are now doing so — if they disagree with public school requirements.



Zachary, who wore a hoop earring in his pierced left earlobe, said he misses school and his teachers and would like to return.



"I miss the socialism and the teachers," he said, before his father corrected him to say socialization. Of being in court, he said, "It’s kind of like, strange at first."







Peggy Wright can be reached at [email protected] or (973) 267-1142.