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Lewis v. Sobol

April 13, 1989

MARIELA LEWIS AND ALAN FISHKIN, INDIVIDUALLY AND AS GUARDIANS OF ABIGAIL LEWIS-FISHKIN, AND ABIGAIL LEWIS-FISHKIN, PLAINTIFFS,
v.
THOMAS SOBOL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS NEW YORK STATE COMMISSIONER OF EDUCATION, DR. DAVID AXELROD, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS NEW YORK STATE COMMISSIONER OF HEALTH, DR. DONALD BATISTA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS SUPERINTENDENT OF THE YONKERS PUBLIC SCHOOLS, LOIS JAMEISON, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS ASSISTANT SUPERINTENDENT OF THE YONKERS PUBLIC SCHOOLS, LILLIAN MEIN, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS PRINCIPAL OF YONKERS PEARLS SCHOOL NO. 32, AND THE YONKERS PUBLIC SCHOOL DISTRICT, DEFENDANTS



The opinion of the court was delivered by: Lasker, District Judge.

Mariela Lewis and Alan Fishkin instituted this action on behalf of their five year old daughter Abigail Lewis-Fishkin ("Abigail") to enjoin defendants Thomas Sobol, New York State Commissioner of Education; Dr. Donald M. Batista, Superintendent of the Yonkers Public Schools; the Yonkers Public School District and various other state and local education officials (collectively "Yonkers") from excluding Abigail from attending kindergarten because of her failure to undertake certain statutorily required immunizations. New York Public Health Law § 2164(9) (McKinney 1985) provides that a student whose parents' religious convictions are to the contrary shall be exempt from the immunization requirement.*fn1 Lewis and Fishkin argue that Yonkers denial of their § 2164(9) exemption request violated their First Amendment right to free exercise of religion. They also assert that Yonkers violated their right to Equal Protection under the Fourteenth Amendment by scrutinizing their religious views under a stricter standard than that applied to members of organized religions.

Because it was clear that Abigail would suffer irreparable harm if barred from attending school, this court granted a temporary restraining order enjoining Yonkers from excluding Abigail from the PEARLS (Program for Early And Rapid Learners) kindergarten at School No. 32. A bench trial on the merits was held and this memorandum constitutes the findings of fact and conclusions of law required by Fed.R.Civ.P. 52.*fn2 I find that Lewis and Fishkin's opposition to immunization stems from sincerely held religious beliefs; accordingly they are entitled to an exemption under § 2164(9); and that Yonkers has violated their First Amendment right to free exercise of religion by denying the exemption. A permanent injunction is ordered to permit Abigail to continue to attend school in the Yonkers Public School District.

I. FACTS

At trial Lewis, plaintiffs' primary witness, testified extensively about the development of her beliefs.*fn3 Born to a Jewish father and Catholic mother, Lewis attended the multidenominational Ethical Culture Sunday School in New York, where she studied a variety of religions. She also occasionally attended meetings at the Bahai church. Her studies and her parents' mixed religious backgrounds caused her to "develop a unique sense of my mixed spiritual heritage" and spurred her to develop her own distinctive religious beliefs. T. 6.

Like his wife, Fishkin displayed an early interest in studying religion. Raised in a Jewish family, he terminated his Hebrew lessons at age 12 because he did not find that Judaism was meeting his spiritual needs. T. 110. He studied Eastern religions and in 1976 began practicing transcendental meditation at various retreats, some of which lasted several months. T. 120-01. In 1980 Fishkin left his home in Montauk, New York and travelled to California in search of a fuller spiritual life. In Big Sur, California, Fishkin met a Native American named Joel who took him to Redwind, a 440 acre multitribal American Indian spiritual community located in a remote section of Los Padres National Forest near Santa Margarita, California. T. 126-27. Fishkin revisited Redwind several times during 1980 and 1981.

After Fishkin returned briefly to New York, where he met Lewis in May of 1981, the couple went to Redwind in 1982 and joined a community of 20 to 30 members of the Chumash, Navaho and Hopi tribes in religious prayer and worship of the Creator. These experiences had a profound effect on the couple. Lewis testified that:

I felt that my need for a natural order ... had been met after living with the Indians in that way. I became very keenly aware of the spirituality of the land and the mountains and the physical aspect of our life out there. I felt a great kinship with the Indians who had lived on that land thousands of years ago and the way in which they lived, and I realized that this was the way that our creator intended us to live, in as simple, gentle, as respectful a manner as possible.

T. 10.

Lewis testified that as a result of her experiences at Redwind she gave "a great deal of thought as to how I would treat my body so that it would be as effective a physical vehicle for my spirit to come through." T. 10-11. While at Redwind she ate only seasonal, unadulterated food such as locally grown fruits, vegetables, grains and beans. She came to the belief-central to the disposition of this case-that physical illness represents

a spiritual imbalance that manifests itself physically, whether it be a spiritual imbalance in my life or a spiritual imbalance as a result of other human activity. When we have physical symptoms it is my practice, our practice, to deal with physical symptoms as they need to be alleviated.

T. 12. Lewis and Fishkin's dietary and medical practices sprung from the beliefs they developed at Redwind.

On July 22, 1983, at San Luis Obispo Hospital near Redwind, attended by a mid-wife but without a doctor, Lewis gave birth to Abigail Lewis-Fishkin. "[T]o ensure that Abigail have as peaceful, as memorable, as beautiful a birth as [Lewis] could possibly arrange," T. 15, she was born in a dimly lit room with soft music playing and immediately bathed in warm water. Abigail received certain routine medical tests after birth. T. 66. Shortly after Abigail's birth Lewis and Fishkin left Redwind and moved back to New York to attend to Lewis' father, who had contracted Parkinson's disease. T. 19.

Lewis and Fishkin's beliefs with regard to nutrition and medicine, developed at Redwind, have governed Abigail's life. She eats a diet of seasonal foods and consumes few dairy products because, as Lewis testified, "I don't think that humans were built in a way by the creator to consume food that was meant for young cows." T. 20. Lewis and Fishkin also testified that they have treated Abigail's occasional illnesses by treating her physical symptoms and the spiritual imbalance they represented. Lewis and Fishkin do not believe in preventive medicine; they see medical intervention as required only when illness occurs and then they treat the spirit as well. Lewis testified:

As I believe that illness is a physical manifestation of spiritual imbalance and disorder, I believe that I cannot anticipate spiritual imbalance and disorder. I cannot anticipate being ill. That would mean anticipating spiritual atrophy or spiritual deterioration.... I anticipate being well ... I was born, my daughter was born, we are all born perfect beings ... complete beings ... microcosms of the universe, complete, perfect, and with an inherent stability and inherent healing abilities, and I believe that the proper way to treat the body is to maintain the health and perfectness that we were born with.

T. 25-26. Lewis stated that she did not oppose all injections but merely preventative vaccinations. Thus, Lewis would and has consented to injections of medicine to treat diseases that have already infected the body. However, as discussed in detail below, Abigail did receive a series of three preventative oral polio vaccinations. T. 28.

Abigail first attended the Knolls Nursery School in Riverdale, New York. When the school asked for an immunization certificate for Abigail, Lewis and Fishkin directed their attorney, James R. Filenbaum, to send a letter ("the Filenbaum letter")*fn4 to the director of the school requesting an exemption under § 2164(9). Attached to the letter was a statement of Lewis and Fishkin's religious beliefs ("the Lewis-Fishkin statement").*fn5 These submissions apparently satisfied the Knolls school and the issue was not raised again. T. 32. The following year Abigail attended the Presbyterian Church Nursery School in Riverdale. Lewis submitted the Filenbaum letter and the Lewis-Fishkin statement to the new school; that school also accepted these documents as satisfying the standards for exemption from the immunization requirement. T. 34.

In 1988 Abigail applied to and was accepted into the PEARLS program in the Yonkers public school system. After Lewis and Fishkin filled out registration forms for Abigail they gave a copy of the Filenbaum letter to the Yonkers school officials, who refused to register Abigail and referred the matter to the Yonkers Board of Education Office of Counsel. T. 35. On June 21, 1988, Lewis, Fishkin and Filenbaum met with James Drohan and Lawrence Thomas, counsel for Yonkers, and Richard J. Monaco, the director of secondary instruction, to discuss their claim of religious opposition to Abigail's immunization. T. 36-37.

On July 1, 1988 Monaco issued findings of fact and a recommendation that Abigail not be allowed exemption from immunization. Monaco relied on several facts that he felt were inconsistent with Lewis and Fishkin's stated beliefs, namely that Abigail had previously received an oral polio vaccination, as well as antibiotics and other preventive medical treatment. The findings stated:

I conclude that the parents' claim of a sincere religious basis to their objection to immunization is not credible. It may be in fact that the parents' objection to immunization is a matter of personal preference as opposed to religious doctrine, but it is not necessary for the Board to reach that specific question. There simply has been no evidence that the ingestion of medicine is per se proscribed by the parents' religion-otherwise, the oral vaccination would not have been sought out by the parents.

... [I]f the tenets of the parents' religion are sufficiently relaxed to allow them to react in an ad hoc fashion, to each medical situation where ingestion of foreign substances (such as vaccination) is indicated, it is difficult to perceive how that religion could automatically be violated by the vaccination requirement.*fn6

Batista, Yonkers Superintendent of Schools, approved the recommendation and refused to grant the exemption. Lewis and Fishkin then sent two letters to the Yonkers Board indicating that they nevertheless planned to register Abigail at the Yonkers school in September.

Fishkin and Lewis then sought a medical exemption from immunization under N.Y.Pub.Health L. § 2164(8).*fn7 On August 10, 1988 they submitted to Superintendent Batista a certificate from Kay S. Lawrence, M.D. stating that immunization would be harmful to Abigail's health.*fn8 Batista responded by letter on August 25:

[T]he documentation and information supplied to date is legally insufficient for the School District to grant [Abigail] a medical exemption.... Dr. Lawrence has refused to discuss or elaborate on the basis for her opinion, and [you] have refused to authorize Dr. Lawrence to discuss the matter with us further. Further, under Education Law Section 901 ... the District is required to perform medical examination of pupils as may be essential.

Accordingly ... the District will not allow Abigail to enter Kindergarten until such time as satisfactory medical documentation including vaccinations, is supplied or until Abigail is examined by a physician of the District's choosing to ascertain the nature of her medical condition which prevents immunization and to see if that condition presents a danger to the health and safety of others at school.*fn9

Fishkin and Lewis then wrote to Batista on September 3 that they believed that the opinion of Dr. Lawrence was legally sufficient to entitle Abigail to the medical exemption and that they considered Batista's letter a denial of their request.*fn10 They also stated that they did not waive their request for a religious exemption under ยง 2164(9). On September 5 Fishkin and Lewis again wrote to Batista to assert that Abigail would attend school on ...


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