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MTR OF ALFONSO v. FERNANDEZ

195 A.D.2d 46 (1993)

In the Matter of Ignacia Alfonso et al., Appellants, v. Joseph A. Fernandez et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 30, 1993

Attorney(s) appearing for the Case

Donovan, Leisure, Newton & Irvine, New York City (Paul A. Crotty, Patrick J. Sullivan, Jana L. Van Tatenhove and Sundria R. Lake of counsel), for appellants.

O. Peter Sherwood, Corporation Counsel of New York City (Doron Gopstein and Fred Kolikoff of counsel), for respondents.

New York Civil Liberties Union Foundation, New York City (Catherine Weiss, Donna Lieberman and Arthur N. Eisenberg of counsel); AIDS Project, American Civil Liberties Union Foundation, New York City (William B. Rubenstein and Ruth E. Harlow of counsel); Berle, Kass & Case, New York City (Jean M. McCarroll and Deborah Goldberg of counsel), and Planned Parenthood Federation of America, New York City (Roger K. Evans and Beth Otten of counsel), for The New York Civil Liberties Union and others, amici curiae.

BALLETTA, J. P., and COPERTINO, J., concur with PIZZUTO, J.; EIBER and MILLER, JJ., dissent, each in a separate opinion.

PIZZUTO, J.

Today, we hold that the respondents are prohibited from dispensing condoms to unemancipated minor students without the prior consent of their parents or guardians, or without an opt-out provision. Condom distribution in the public schools is a health service rather than health education and thus, in the absence of a provision requiring the prior consent of unemancipated minor students' parents or...

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