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BERG v. GLEN COVE CITY SCH. DIST.

June 1, 1994

KATHRYN BERG and DANIEL BERG, etc., et al., Plaintiffs,
v.
GLEN COVE CITY SCHOOL DISTRICT, Defendant.



The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Plaintiffs Kathryn and David Berg, individually and as guardians for their minor children, Emily and Sasha Berg, commenced this action against defendant Glen Cove City School District alleging that defendant violated plaintiffs' constitutionally protected rights of freedom of religion and equal protection of the law under the First and Fourteenth Amendments to the United States Constitution, and under 42 U.S.C. § 1983, by refusing to grant plaintiffs an exception to the immunization requirements of New York Public Health Law § 2164, and prohibiting the infant plaintiffs from attending school in the Glen Cove City School District unless plaintiffs have their children immunized. Plaintiffs contend that the immunizations required by § 2164 are contrary to their genuine and sincere religious beliefs and that they are entitled to the benefit of the exemption set forth in § 2164(9).

 Plaintiffs commenced this action on November 9, 1993, by filing their complaint with an order to show cause seeking a temporary restraining order and a preliminary injunction. This Court issued a temporary restraining order (the "TRO") the same day, and scheduled a hearing on plaintiffs' request for a preliminary injunction for December 2, 1993. At the December 2 hearing, this Court heard testimony from Kathryn and David Berg, on behalf of plaintiffs, and Rabbi Howard Jachter, on behalf of defendant. At the close of the hearing, this Court reserved decision pending receipt of medical and dental records for plaintiffs, and, upon the consent of the parties, directed that the TRO remain in effect pending the decision on the request for a preliminary injunction. For the reasons below, plaintiffs' request for a preliminary injunction is granted.

 I. BACKGROUND

 The facts as alleged in the complaint, and as adduced at the hearing, are summarized as follows: In or before April 1993, Kathryn and David Berg sought to enroll their five year old twin daughters, Emily and Sasha, in the Glen Cove City School District, and requested exemption from the immunization requirement of New York Public Health Law § 2164. This section requires that all children be immunized against certain communicable diseases before they enter school, see N.Y. Pub. Health Law § 2164(2) and (7), *fn1" but provides an exemption to those persons who oppose immunization on religious grounds, see N.Y. Pub. Health Law § 2164(9). *fn2"

 By letters dated April 28, 1993 and July 22, 1993, defendant, through Assistant Superintendent Michael S. Perricone ("Perricone"), sought information from plaintiffs to determine whether the requirements for exemption were satisfied. In particular, Perricone asked plaintiffs to identify the religion to which they claimed to belong and the tenets of that religion that would be violated by permitting immunization.

 Plaintiffs responded to Perricone's request by summarizing their purported religious beliefs in a letter dated July 29, 1993. As alleged in paragraph 17 of the Complaint, the July 29 letter described plaintiffs' religious beliefs as follows:

 
While we feel we are members of the Jewish Faith and we believe in God, we adhere to certain personal and sacred religious beliefs. Our beliefs are partly based on Torah and what we believe that God commands of us. We believe that God has endowed us with the energy of life. We believe that this special energy, directed by God, has constructed our cells, our tissues, and our organs with infinite intelligence and these interconnected systems function in perfect harmony when we follow nature's laws which are the Laws of God. We believe a lifestyle that is in accordance with the Laws of God creates healthy bodies and healthy minds. God is pure and we must strive to live our lives as purely as possible. Eating unpure substances or injecting substances unnaturally into our bloodstreams is in our opinion a violation of these laws. "Leviticus XI-XVI" discusses the Laws of Purity. The REGULATIONS therein are the means to achieving a healthy soul in a healthy body. Specifically Leviticus XI,44, states "For I am the Lord your God; sanctify youselves [sic] therefore, and be ye holy; for I am holy, neither shall ye defile yourselves with any manner of swarming thing that moveth upon the earth." Inoculations, in our opinion, are clearly a defilement and in direct violation of the Laws of God.

 Complaint P 17.

 By letter dated August 24, 1993, defendant informed plaintiff that it found the July 29 letter's statement of religious beliefs "insufficient as to specificity for us to admit your children to school in the fall." By a second letter dated August 24, 1993, defendants stated that "further information" is needed to determine whether the exemption is applicable.

 Shortly thereafter, plaintiffs retained counsel. To cooperate With defendant's request for further information, plaintiffs' lawyer agreed to an oral deposition of plaintiffs Kathryn and David Berg by defendant's lawyer. The parties further agreed that the infant plaintiffs could begin the 1993-1994 school year in September 1993, in kindergarten, at defendant's Gribben School.

 The agreed upon depositions were held on September 13, 1993. Subsequently, by letter dated November 1, 1993, defendant's lawyer informed plaintiffs' lawyer that defendant had determined that Emily and Sasha would not be permitted to attend school without the necessary immunizations. Further, defendant advised plaintiffs that if plaintiffs did not submit proper certifications of immunizations to the school district on or before November 5, 1993, the infant plaintiffs would not be permitted to attend school after that date.


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