Judge tosses out suit over inoculation for boy, 11

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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.







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