14‐2156‐cv

Phillips v. City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

                               

August Term, 2014

(Argued: January 5, 2015            Decided: January 7, 2015)

Docket No. 14‐2156‐cv

________________

NICOLE PHILLIPS, individually and on behalf of B.P. and S.P., minors,

DINA CHECK, on behalf of minor M.C.,

FABIAN MENDOZA‐VACA, individually and on behalf of M.M. and V.M., minors,

Plaintiffs‐Appellants,

— v. —

CITY OF NEW YORK, ERIC T. SCHNEIDERMAN, in his official capacity as Attorney

General, State of New York, DR. NIRAV R. SHAH, in his official capacity as

Commissioner, New York State Department of Health, NEW YORK CITY

DEPARTMENT OF EDUCATION,

Defendants‐Appellees.*

* The Clerk of Court is respectfully directed to amend the official caption in

this case to conform to the caption above.

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B e f o r e:

LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.

**

__________________

Plaintiffs‐appellants challenge on constitutional grounds New York State’s

requirement that all children be vaccinated in order to attend public school.

Plaintiffs‐appellants argue that the statutory vaccination requirement, which is

subject to medical and religious exemptions, violates their substantive due

process rights, the Free Exercise Clause of the First Amendment, the Equal

Protection Clause of the Fourteenth Amendment, the Ninth Amendment, and

both state and municipal law.  On the same grounds, plaintiffs‐appellants argue

that a state regulation permitting state officials to temporarily exclude students

who are exempted from the vaccination requirement from school during an

outbreak of a vaccine‐preventable disease is unconstitutional.  The district court

concluded that the statute and regulation are constitutional.  We agree and

therefore AFFIRM.  

** The Honorable Edward R. Korman, of the United States District Court for

the Eastern District of New York, sitting by designation.

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PATRICIA FINN, Patricia Finn, Attorney, P.C., Piermont, New

York, for Plaintiffs‐Appellants.

JAMESANDREWKENT, Assistant Solicitor General (Steven C. Wu,

Deputy Solicitor General, on the brief) on behalf of Barbara D.

Underwood, Solicitor General, for State Defendants‐Appellees.

JANE L. GORDON on behalf of Zachary W. Carter, Corporation

Counsel of the City of New York, for Municipal Defendants‐

Appellees.

                              

PER CURIAM:

Plaintiffs brought this action challenging on constitutional grounds New

York State’s requirement that all children be vaccinated in order to attend public

school.  Plaintiffs argued that the statutory vaccination requirement, which is

subject to medical and religious exemptions, violates their substantive due

process rights, the Free Exercise Clause of the First Amendment, the Equal

Protection Clause of the Fourteenth Amendment, the Ninth Amendment, and

both state and municipal law.  On the same grounds, plaintiffs argued that a state

regulation permitting school officials to temporarily exclude from school

students who are exempted from the vaccination requirement during an

outbreak of a vaccine‐preventable disease is unconstitutional.  Defendants moved

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to dismiss or for summary judgment.  The district court (William F. Kuntz II,

Judge) granted defendants’ motions.  Because we conclude that the statute and

regulation are a constitutionally permissible exercise of the State’s police power

and do not infringe on the free exercise of religion, and we determine that

plaintiffs’ remaining arguments are either meritless or waived, we affirm.  

BACKGROUND

New York requires that students in the State’s public schools be

immunized against various vaccine‐preventable illnesses.  The New York Public

Health Law provides that “[n]o principal, teacher, owner or person in charge of a

school shall permit any child to be admitted to such school, or to attend such

school, in excess of fourteen days” without a certificate of immunization.  N.Y.

Pub. Health Law § 2164(7)(a).  The statute provides two exemptions from the

immunization mandate.  First, a medical exemption is available “[i]f any

physician licensed to practice medicine in this state certifies that such

immunization may be detrimental to a child’s health.”  Id. § 2164(8).  Second, the

a religious exemption is available for “children whose parent, parents, or

guardian hold genuine and sincere religious beliefs which are contrary to the

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practices herein required.”  Id. § 2164(9).  The State provides multiple layers of

review for parents if either of these exemptions is denied.

Plaintiffs Nicole Phillips and Fabian Mendoza‐Vaca, who are Catholic,

received religious exemptions for their children.  In November 2011 and January

2012, however, the Phillips and Mendoza‐Vaca children were excluded from

school when a fellow student was diagnosed with chicken pox, pursuant to a

state regulation that provides, “in the event of an outbreak . . . of a vaccine‐

preventable disease in a school, the commissioner, or his or her designee, . . . may

order the appropriate school officials to exclude from attendance” those students

who have received exemptions from mandatory vaccination.  10 N.Y.C.R.R. § 66‐

1.10.  

Plaintiff Dina Check applied for a religious exemption for her daughter,

M.C.1

  After asking Check to clarify her basis for seeking the exemption, a

Department of Education (“DOE”) official ultimately denied the exemption,

finding that Check’s objections to vaccinating M.C. were not based on genuine

1 According to plaintiffs, M.C. had a religious exemption while attending a

private pre‐school, but was required to reapply when she entered the public

school system.

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and sincere religious beliefs.2

  Check then brought this lawsuit seeking a

preliminary injunction to compel the DOE to allow M.C. to attend school

unvaccinated.  

The district court (Sandra L. Townes, Judge) referred the preliminary

injunction application to Magistrate Judge Lois Bloom, who held a hearing at

which Check testified regarding the purported religious basis for her objections

to vaccines.3

  Check testified that she is Catholic and stated, “How I treat my

daughter’s health and her well‐being is strictly by the word of God.”  (Joint

App’x 136.)  Check also testified, however, that she believed that vaccination

“could hurt my daughter.  It could kill her.  It could put her into anaphylactic

shock.  It could cause any number of things.”  (Id. at 146.)  On cross‐examination,

Check testified that she did not know of any tenets of Catholicism that prohibited

vaccinations.  She also detailed several adverse reactions that M.C. had had to

2 Check appealed this denial, and, after an interview with a different DOE

official, her appeal was dismissed.  Although an additional appeal to the

Commissioner of Education was available, Check chose not to appeal and instead

commenced this litigation.

3 M.C. had previously been denied a medical exemption, though Check

stated during the preliminary injunction hearing that she never applied for a

medical exemption and that the application submitted on her behalf was

submitted in error.

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vaccinations before Check determined not to subject her to any further

inoculation, and stated that these bad reactions led Check to ask God for

guidance and protection.

The Magistrate Judge issued a Report and Recommendation

recommending that the request for a preliminary injunction be denied.  She

found that Check’s testimony demonstrated that her views on vaccination were

primarily health‐related and did not constitute a genuine and sincere religious

belief.  The Magistrate Judge noted especially that “plaintiff’s testimony that she

did not adopt her views opposing vaccination until she believed that

immunization jeopardized her daughter’s health is compelling evidence that

plaintiff’s refusal to immunize her child is based on medical considerations and

not religious beliefs.”  (Id. at 211.)  The district court adopted the Report and

Recommendation and denied injunctive relief.4

4 Despite Check’s disavowal of the medical exemption application, after the

Magistrate Judge recommended that the preliminary injunction be denied,

plaintiffs sought a second preliminary injunction based on the medical

exemption.  The Magistrate Judge issued a second Report and Recommendation

recommending that this request for a preliminary injunction be denied and the

district court issued an order adopting her recommendation.  As discussed

further at note 6, infra, plaintiffs do not challenge this order on appeal.

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Check’s case was subsequently consolidated with the Phillips and

Mendoza‐Vaca cases before Judge Kuntz.  Plaintiffs thereafter jointly filed an

amended complaint, alleging that the State’s mandatory vaccination requirement

and the regulation permitting temporary exclusion of exempted schoolchildren

during a disease outbreak were unconstitutional.  Specifically, plaintiffs alleged

that the statute and regulation violated the Free Exercise Clause of the First

Amendment, their rights to substantive due process under the Fourteenth

Amendment, the Ninth Amendment, the Equal Protection Clause, and state and

municipal law.  The municipal defendants moved to dismiss or for summary

judgment, and the State defendants moved to dismiss.  The district court granted

the motions on June 5, 2014.  Phillips v. City of New York, Nos. 12‐cv‐98

(WFK)(LB), 12‐cv‐237 (WFK)(LB), 13‐cv‐791 (WFK)(LB), 2014 WL 2547584

(E.D.N.Y. June 5, 2014).  Plaintiffs filed their Notice of Appeal five days later, on

June 10, 2014.  Nine days after that, plaintiffs moved for reconsideration in the

district court.  The district court denied the motion, holding that because

plaintiffs had already filed their Notice of Appeal, it no longer had jurisdiction.

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DISCUSSION

We review de novo the district court’s grant of a motion to dismiss,

accepting as true all facts alleged in the complaint and drawing all reasonable

inferences in favor of the plaintiff.  Kassner v. 2nd Ave. Delicatessen Inc., 496

F.3d 229, 237 (2d Cir. 2007).

I. Substantive Due Process

Plaintiffs argue that New York’s mandatory vaccination requirement

violates substantive due process.  This argument is foreclosed by the Supreme

Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11

(1905).  In that case, the plaintiff challenged Massachusetts’s compulsory

vaccination law under the Fourteenth Amendment.  The Supreme Court held

that mandatory vaccination was within the State’s police power.  Id. at 25‐27; see

Zucht v. King, 260 U.S. 174, 176 (1922) (“Jacobson . . . settled that it is within the

police power of a state to provide for compulsory vaccination.”).  The Court

rejected the claim that the individual liberty guaranteed by the Constitution

overcame the State’s judgment that mandatory vaccination was in the interest of

the population as a whole.  Jacobson, 197 U.S. at 38.  Plaintiffs argue that a

growing body of scientific evidence demonstrates that vaccines cause more harm

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to society than good, but as Jacobson made clear, that is a determination for the

legislature, not the individual objectors.  See id. at 37‐38.5

  Plaintiffs’ substantive

due process challenge to the mandatory vaccination regime is therefore no more

compelling than Jacobson’s was more than a century ago.  See Caviezel v. Great

Neck Pub. Schs., 500 F. App’x 16, 19 (2d Cir. 2012) (summary order) (rejecting

substantive due process challenge to vaccination mandate based on Jacobson).

II. Free Exercise of Religion

Plaintiffs next argue that the temporary exclusion from school of the

Phillips and Mendoza‐Vaca children during the chicken pox outbreak

unconstitutionally burdens their free exercise of religion.6

  Jacobson did not

5 Plaintiffs argue that Jacobson requires that strict scrutiny be applied to

immunization mandates.  Even assuming that Jacobson does demand this level of

scrutiny, which no court appears ever to have held, Jacobson addressed a law

mandating that all persons over age twenty‐one be vaccinated for small pox and

the criminal prosecution of the plaintiff for refusing to submit to vaccination.  197

U.S. at 12.  Here, New Yorkʹs mandate requires only that children who are not

otherwise exempted be vaccinated in order to attend school.  Because “there is no

substantive due process right to public education,” Bryant v. N.Y.S. Educ. Dep’t,

692 F.3d 202, 217 (2d Cir. 2012), plaintiffs’ substantive due process claim fails

even under their reading of Jacobson.

6 Check also claims that her free exercise rights were violated.  However,

the district court adopted the Magistrate Judge’s finding that Check’s objections

to vaccinations were not based on religious beliefs, and plaintiffs did not

designate either of the district court’s orders adopting the Magistrate Judge’s

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address the free exercise of religion because, at the time it was decided, the Free

Exercise Clause of the First Amendment had not yet been held to bind the states.

See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).  Therefore, Jacobson does

not specifically control Phillips’s and Mendoza‐Vaca’s free exercise claim.  The

Supreme Court has stated in persuasive dictum, however, that a parent “cannot

claim freedom from compulsory vaccination for the child more than for himself

on religious grounds.  The right to practice religion freely does not include liberty

to expose the community or the child to communicable disease or the latter to ill

health or death.”  Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).  That

dictum is consonant with the Court’s and our precedents holding that “a law that

is neutral and of general applicability need not be justified by a compelling

governmental interest even if the law has the incidental effect of burdening a

particular religious practice.”  Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531 (1993); accord, Leebaert v. Harrington, 332 F.3d 134,

Reports and Recommendations in their Notice of Appeal.  Therefore, we lack

jurisdiction to review the Magistrate Judge’s factfinding.  See Fed. R. App. P.

3(c)(1)(B); New Phone Co., Inc. v. City of New York, 498 F.3d 127, 131 (2d Cir.

2007).  Because Check’s objections to the statute are not religious in nature, she

lacks standing to challenge the mandate on free exercise grounds.  See Mason v.

Gen. Brown Cent. Sch. Dist., 851 F.2d 47, 54 (2d Cir. 1988).   

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143‐44 (2d Cir. 2003) (holding that parental claims of free exercise of religion are

governed by rational basis test).  Accordingly, we agree with the Fourth Circuit,

following the reasoning of Jacobson and Prince, that mandatory vaccination as a

condition for admission to school does not violate the Free Exercise Clause.  See

Workman v. Mingo County Bd. of Educ., 419 F. App’x 348, 353‐54 (4th Cir. 2011)

(unpublished).

New York could constitutionally require that all children be vaccinated in

order to attend public school.  New York law goes beyond what the Constitution

requires by allowing an exemption for parents with genuine and sincere religious

beliefs.  Because the State could bar Phillips’s and Mendoza‐Vaca’s children from

school altogether, a fortiori, the State’s more limited exclusion during an outbreak

of a vaccine‐preventable disease is clearly constitutional.

III. Equal Protection

Plaintiffs argue that the mandatory vaccination provision violates their

rights under the Equal Protection Clause.  To the extent that plaintiffs are

claiming discrimination against Catholics, that argument plainly fails because

Phillips and Mendoza‐Vaca are both Catholic and received religious exemptions.

Plaintiffs alternatively argue that Check was treated differently than her

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similarly‐situated co‐plaintiffs.  But, as discussed above, plaintiffs failed to

challenge the district court’s finding that Check’s views on vaccines were not

based on sincere religious beliefs.  Plaintiffs have put nothing in the record to

suggest that Phillips’s and Mendoza‐Vaca’s religious beliefs are similar to

Check’s.  Plaintiffs therefore fail adequately to allege an equal protection

violation.

IV. Ninth Amendment

Plaintiffs finally seek succor in the Ninth Amendment.  But, we have held,

“[t]he Ninth Amendment is not an independent source of individual rights.”

Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007).  Because plaintiffs fail plausibly to

allege a violation of any other constitutional right, their effort to recast their

unsuccessful claims as a violation of the Ninth Amendment also fails.  See id. at

93.7

7 Because all of plaintiffs’ federal claims fail, the district court properly

declined to exercise supplemental jurisdiction over their state and municipal law

claims.  See 28 U.S.C. § 1367; Valencia ex rel. Franco v. Lee, 316 F.3d 299, 304‐05

(2d Cir. 2003).

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V. Claims in Plaintiffs’ Motion for Reconsideration

Plaintiffs also raise numerous arguments on appeal based on a deposition

of DOE official Julia Sykes and other documents that they obtained in discovery.

Those arguments were raised for the first time in plaintiffs’ motion for

reconsideration and therefore were not properly presented to the district court.

Accordingly, they are waived.  See Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry.

Co., 762 F.3d 165, 188 (2d Cir. 2014) (declining to consider arguments raised for

the first time in motion for reconsideration where no reason exists to excuse

untimeliness).

CONCLUSION

For the foregoing reasons, the order of the district court is

AFFIRMED.

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