Source: Children’s Health Defense

Two New York families are suing their school districts in federal court, alleging that district officials unlawfully denied their children’s medical exemptions.

One case involves an 11-year-old, identified as “Sarah Doe,” in the Webster Central School District. According to the complaint filed last month in the U.S. District Court for the Western District of New York, Sarah has a “documented history of life-threatening reactions to vaccines.”

The school district denied her medical exemption request for the Tdap vaccine.

The other case concerns a 17-year-old, identified as “Michael Doe,” in the Penfield Central School District. His complaint, also filed last month, and in the same federal court, states that he has a “documented personal history of severe vaccine-induced airway constriction, a strong family history of autoimmune disorders, and a life-threatening latex allergy.”

The school district denied his medical exemption request for the meningococcal vaccine.

The lawsuits ask the court to issue a temporary restraining order and a preliminary injunction to allow Sarah and Michael to return to school and to recognize their medical exemptions as valid. The plaintiffs also seek compensation for damages, including lost educational opportunities and emotional distress.

Chad Davenport, the plaintiffs’ attorney, told The Defender that the New York school districts’ actions were “egregious” and “in direct contradiction” to a recent federal ruling in a related case, Doe v. Oceanside, involving a New York mother and her teenage daughter, also called “Sarah Doe.”

Davenport and attorney Sujata Gibson represented the teen and her mother, who successfully sued the Oceanside Union Free School District for refusing to grant the teen a medical vaccine exemption for the hepatitis B vaccine. Children’s Health Defense (CHD) funded the lawsuit.

In August, the judge issued a preliminary injunction allowing the teen to return to classes.

On Sept. 1, Davenport and Gibson sent a letter on CHD’s behalf to all New York state boards of education and superintendents, threatening legal action if school district officials continued to deny medical exemptions certified by students’ physicians.

“We sent it out and we tried to stop them from doing this, but unfortunately, it wasn’t enough,” Davenport said.

New York’s ‘flawed’ medical exemption process puts kids at risk

The situations described in the two new lawsuits are “happening throughout New York state,” he said.

CHD General Counsel Kim Mack Rosenberg said the new lawsuits highlight “how flawed the medical exemption process is in New York state.” Gibson agreed.

Mack Rosenberg added:

“For too many, the existence of the medical exemption truly is illusory and the misinterpretation of grounds for a medical exemption is rampant, both at the state and district level.

“The flaws in the system are placing families who choose to have their children educated in schools — versus homeschooling, which is not an option for everyone — in the horrible position of potentially risking their child’s health to attend school, where doctors familiar with the children recommend that the children not receive vaccines.”

Davenport said he reached out to the New York schools, requesting homeschooling curriculum.

“They give us nothing — and again, this is not unique,” he said. “Every single time that they kick these children out into homeschooling, they give them nothing. … They basically say, ‘We’re done with you.’”

Doctors cited ‘clear and documented danger’ to Sarah’s health

The Oct. 22 lawsuit states that Webster Central School District denied 11-year-old Sarah’s Tdap vaccine medical exemption despite the warning from her treating physician that further vaccination was “absolutely contraindicated” because of a prior “life threatening, multi-organ failure after vaccinations.”

When the family tried to meet the school’s vaccine requirement, healthcare providers refused to vaccinate Sarah. The complaint states:

“When the family, acting under extreme duress from these threats, attempted to comply with the District’s demands, they were turned away by multiple medical providers who refused to administer the vaccine, citing the clear and documented danger to Sarah’s health.”

The district denied Sarah’s exemption because her condition was not listed on “a rigid, pre-approved list of contraindications” published by the Centers for Disease Control and Prevention’s vaccine advisory committee.

The lawsuit also alleges that the district responded to Sarah’s exemption request with “coordinated campaign of intimidation and threats involving Child Protective Services (CPS).” The county health department warned Sarah’s mother that CPS could intervene if Sarah remained unvaccinated.

In addition to the Webster Central School District, the lawsuit names Dr. Margaret Callahan, the district’s designated school physician, and Chris Callahan, principal of Spry Middle School, as defendants.

School’s medical director showed ‘clear bias’ in case involving 17-year-old

The Oct. 24 lawsuit states that Dr. Robert Tuite, the medical director who reviewed the exemption request, said the district should need it because the request was issued by a psychiatrist, whom Tuite deemed was the “wrong” type of doctor.

However, Davenport said the judge who ruled in Doe v. Oceanside made it clear that medical exemptions don’t have to be written by a specific type of doctor.

The judge “went through the district’s demands for letters from specialists, including hematologists, immunologists” and explicitly said letters from specialists are not required, Davenport said.

“The statute is very clear: it is any physician. You do not need to have somebody with a certain specialty to certify that a vaccination may be detrimental to the health of your child,” he added.

The lawsuit also says Tuite had “profound” conflicts of interest that affected his review of Michael’s exemption request. The complaint names Tuite as a defendant, along with Penfield Central School District, Penfield High School Principal LeAnna L. Watt and Superintendent Tasha Potter.

Tuite, the district’s medical director who also runs a private practice, previously served as Michael’s doctor until a “contentious disagreement” arose between Tuite and Michael’s mother.

After “an argument over the COVID shot and whether or not her child should receive it,” Tuite kicked Michael’s mother out of his practice, Davenport said. “That’s clear bias.”

Davenport continued:

“Not only that, but then [Tuite] actually got on the phone with the doctor who wrote the medical exemption … [and] admitted that the reason why he’s rejecting it is because last time he accepted a medical exemption, he got his wrist slapped by New York State.”

New York schools fined for approving medical exemptions, case alleges

Tuite told the psychiatrist that the district faces “substantial fines” from the state’s health department for accepting any medical exemption that the state later deems invalid.

Davenport said Tuite isn’t the first person to claim that the New York State Department of Health will fine a district for allowing medical exemptions. According to Davenport, medical directors and school officials involved in lawsuits he files often make similar claims.

Davenport said they know that he will sue them for fees and damages, but they tell him that approving a medical exemption request and allowing the student into school would cost the district $2,000 per day.

“That is what they are being threatened with,” he said. “I don’t know how that message is being conveyed from the Department of Health to the schools and the school officials, but it is.”

Davenport hopes the new cases reinforce the precedent set by Doe v. Oceanside.

He also hopes the cases will send a message that New York school districts can no longer deny medical exemptions without facing judicial challenges.

Davenport said districts have generally assumed they would be “insulated” from meaningful judicial review, since families whose exemptions are denied must appeal to the state commissioner, and the commission historically sides with the school district.

“Not one final decision has ever resulted in the New York State Education Department overturning a school’s decision to deny a vaccine waiver. Not one,” Davenport said.

Now, however, families are taking their cases to federal court after the state commission fails to provide meaningful judicial review.

Related articles in The Defender

• CHD Threatens Legal Action Against New York Schools That Deny Medical Exemptions
• Judge Rules in Favor of Teen in Medical Exemption Lawsuit Funded by Children’s Health Defense
• Mom, Teen Sue School That Refused to Grant Hep B Vaccine Medical Exemption
• New York’s Attack on Medical Exemptions Gives School Officials Power to Override Doctors on Vaccines
• New York’s Strict Medical Exemptions Not Going Away After U.S. Supreme Court Refuses to Hear Appeal