GOE v. ZUCKER

Docket No. 21-0537-cv August Term 2021.

43 F.4th 19 (2022)

Jane GOE, Sr., on behalf of herself and her minor child, Jane Doe, on behalf of herself and her minor child, Jane Boe, Sr., on behalf of herself and her minor child, John Coe, Sr., on behalf of himself and his minor children, Jane Coe, Sr., on behalf of herself and her minor children, John Foe, Sr., on behalf of himself and his minor child, Jane Loe, on behalf of herself and her medically fragile child, Jane Joe, on behalf of herself and her medically fragile child, Children's Health Defense, Plaintiffs-Appellants, v. Howard ZUCKER, in his official capacity as Commissioner of Health for the State of New York, Elizabeth Rausch-Phung, M.D., in her official capacity as Director of the Bureau of Immunizations at the New York State Department of Health, New York State Department of Health, Three Village Central School District, Cheryl Pedisich, acting in her official capacity as Superintendent, Three Village Central School District, Corinne Keane, acting in her official capacity as Principal, Paul J. Gelinas Jr. High School, Three Village Central School District, Lansing Central School District, Chris Pettograsso, acting in her official capacity as Superintendent, Lansing Central School District, Christine Rebera, acting in her official capacity as Principal, Lansing Middle School, Lansing Central School District, Lorri Whiteman, acting in her official capacity as Principal, Lansing Elementary School, Lansing Central School District, Penfield Central School District, Dr. Thomas Putnam, acting in his official capacity as Superintendent, Penfield Central School District, South Huntington School District, Dr. David P. Bennardo, acting in his official capacity as Superintendent, South Huntington School District, Br. David Migliorino, acting in his official capacity as Principal, St. Anthony's High School, South Huntington School District, Ithaca City School District, Dr. Luvelle Brown, acting in his official capacity as Superintendent, Ithaca City School District, Susan Eschbach, acting in her official capacity as Principal, Beverly J. Martin Elementary School, Ithaca City School District, Coxsackie-Athens School District, Randall Squier, acting in his official capacity as Superintendent, Coxsackie-Athens School District, Freya Mercer, acting in her official capacity as Principal, Coxsackie-Athens School District, Albany City School District, Kaweeda G. Adams, acting in her official capacity as Superintendent, Albany City School District, Michael Paolino, acting in his official capacity as Principal, William S. Hackett Middle School, Albany City School District; and all others similarly situated, Defendants-Appellees, Shenendehowa Central School District, Dr. L. Oliver Robinson, acting in his official capacity as Superintendent, Shenendehowa Central School District, Sean Gnat, acting in his official capacity as Principal, Koda Middle School, Shenendehowa Central School District, Andrew Hills, acting in his official capacity as Principal, Arongen Elementary School, Shenendehowa Central School District, Defendants.

United States Court of Appeals, Second Circuit.

Decided: July 29, 2022.


Attorney(s) appearing for the Case

Sujata S. Gibson , The Gibson Law Firm, PLLC, Ithaca, New York ( Michael H. Sussman and Jonathan R. Goldman , Sussman and Associates, Goshen, New York, and Mary Holland and Robert F. Kennedy, Jr. , Children's Health Defense, New York, New York, on the brief), for Plaintiffs-Appellants.

Beezly J. Kiernan , Assistant Solicitor General of Counsel ( Barbara D. Underwood , Solicitor General, Jeffrey W. Lang , Deputy Solicitor General, on the brief), for Letitia James , Attorney General of the State of New York, Albany, New York, for Defendants-Appellees Zucker, Rausch-Phung, and the New York State Department of Health.

Adam I. Kleinberg , Sokoloff Stern, LLP, Carle Place, New York ( Gregg T. Johnson , April J. Laws , Loraine C. Jelinek , Johnson Laws, LLC, Clifton Park, New York, on the brief), for Defendants-Appellees Three Village Central School District, Pedisich, Keane, South Huntington School District, Bennardo, Ithaca City School District, Brown, Eschbach, Albany City School District, Adams, and Paolino.

Roxanne L. Tashjian ( James G. Ryan , on the brief) Cullen and Dykman LLP, Garden City, New York, for Defendants-Appellees Lansing Central School District, Pettograsso, Rebera, Whiteman, Penfield Central School District, Putnam, Coxsackie-Athens School District, Squier, and Mercer.

Meishin Riccardulli , Philip C. Semprevivo, Jr. , Biedermann Hoenig Semprevivo PC, New York, New York, for Defendant-Appellee Migliorino.

Before: Leval, Cabranes, and Chin, Circuit Judges.


Under New York State law, all children must be immunized against certain diseases to be admitted to school or to attend school for more than fourteen days. Prior to June 2019, New York law allowed exemptions from this immunization requirement for both non-medical and medical reasons. That year, following a nationwide measles...

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