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 Distriсt, 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 situаted, 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.
Docket No. 21-0537-cv
United States Court of Appeals for the Second Circuit
July 29, 2022
August Term 2021 (Argued: November 9, 2021)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
* The Clerk of the Court is respectfully directed to amend the official caption to conform to the above.
Before: LEVAL, CABRANES, and CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court for the Northern District of New York (Sannes, J.), entered February 17, 2021, dismissing plaintiffs-appellants’ claims that regulations promulgated by New York State in 2019 governing requests for medical exemptions from school immunization requirements were unconstitutional and violated federal law. Plaintiffs-appellants contend that the new regulations are unlawful because they permit New York State to deny their rеquests for a medical exemption from school immunization requirements even when their state-licensed physicians certify a medical need for such an exemption. The district court granted defendants-appellees’ motions to dismiss for failure to state a claim.
AFFIRMED.
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
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.
CHIN, Circuit Judge:
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 outbreak, New York State (the “State“) repealed the non-medical exemption and adopted new regulations that clarified the requirements for а medical exemption. Specifically, the State narrowed the availability of medical exemptions to cases consistent with guidelines issued by the Advisory Committee on Immunization Practices (the “ACIP” and the “ACIP Guidelines“) of the Centers for Disease Control and Prevention (the “CDC“) 1 or with other nationally recognized evidence-based standards of care.
Plaintiffs-appellants (“Plaintiffs“) are a national not-for-profit children‘s advocacy organization and several parents, suing on behalf of themselves and their children, whose requests for medical exemptions from the school immunization requirements were largely denied. They brought this action below against defendants-appellees -- the New York State Department of Health (the “Health Department“), Health Department officials, local school districts, and local school district officials (collectively, “Defendants“) 2 -- alleging that the new regulations and the enfоrcement thereof violated their rights under the Due Process Clause of the Fourteenth Amendment and Section 504 of the Rehabilitation Act,
The district court granted Defendants’ motions to dismiss. We conclude first, as a procedural matter, that the district court properly applied the motion to dismiss standards. We then conclude, as a substantive matter, that neither the new regulations
BACKGROUND
A. Statutory Background
For more than a century, the State has required mandatory immunization for children to attend school. See Act of Apr. 16, 1860, ch. 438, 1860 N.Y. Laws 761, 761-62. Today, all children between the ages of two months and eighteen years must be immunized against a number of diseases to be admitted to school or to attend school for more than fourteen days. See
The State has also permitted exemptions from school immunization requirements for many decades. See, e.g., Act of Apr. 20, 1953, ch. 879, 1953 N.Y. Laws 2141, 2289-90 (providing deferment from school immunization for smallpox based on “medical reasons“) (repealed 1968). Until the 2019 amendments, Section 2164 provided two statutory exemptions from its school immunization requirements. See Act of Aug. 3, 1966, ch. 994, 1966 N.Y. Laws 3331, 3333. Under the non-medical exemption, a child was not required to be immunized if that child had a parent or guardian who held “genuine and sincere religious beliefs” against immunization.
medical
Under the State‘s present requirements, a child may be exempted from school immunization if “any” state-licensed physician “certifies that such immunization may be detrimental to [the] child‘s health.”
On August 16, 2019, Commissioner Zucker issued emergency regulations to implement the State‘s legislative repeal of the non-medical exemption (the “new regulations“). In doing so, the Commissioner explained that these new rules would ensure that the State‘s immunization requirements conformed to “national immunization recommendations and guidelines.” App‘x at 138.
The new regulations were adopted on December 31, 2019. They require the use of a medical exemption form approved by the Health Department or the New York City Department of Education, completed and signed by a physician, certifying that “immunization may be detrimental to the child‘s health.”
The ACIP Guidelines define a “contraindication” as a “condition[] in a recipient that increases the risk for a serious adverse reaction,” App‘x at 489, and recommend that a vaccine not be administered when such a contraindication exists. Examples of contraindications include being severely immunocompromised, having an immunodeficiency disease, or suffering a severe allergic reaction after a previous vaccine dоse. The ACIP Guidelines separately define a “precaution” as a “condition in a recipient that might increase the risk for a serious adverse reaction, might cause diagnostic confusion, or might compromise the ability of the vaccine to produce immunity.” Id. at 490. For precautions, the ACIP Guidelines recommend deferring, in lieu of completely foregoing, vaccination. Examples of precautions include experiencing moderate or severe acute illness or a personal or family history of seizures.7
The following facts, which are assumed to be true, are drawn from the FAC.
Plaintiffs’ medically fragile children suffer from diseases and disabilities that significantly impair their immune systems. Some also have a family history of adverse reactions to vaccines or serious autoimmune diseases. These conditions or circumstances have either prevented them from being vaccinated at all, or from receiving cеrtain vaccines.
Around the start of the 2019 school year, Plaintiffs submitted medical exemption requests, supported by their state-licensed physicians, seeking exemptions from all or some of the school immunization requirements.8 Most of Plaintiffs’ requests were denied. They were told by school officials, for example, that their requests lacked sufficient detail, did not meet ACIP Guidelines criteria, or were submitted on the wrong form. In denying these requests, many school officials relied on the opinion of their school district‘s physician. Director Rausch-Phung also reviewed some of these requests and recommended their denial.
Some Plaintiffs submitted unsuccessful second, and third requests. Plaintiffs Joe and Doe appealed their medical exemption denials to the Commissioner of Education. While Joe‘s appeal was still pending when suit was filed, the denial of Doe‘s request was affirmed. Plaintiff Foe‘s son‘s medical exemption was granted, and he is enrоlled in private school. In Plaintiff Goe‘s case, the school district allowed her daughter to enroll in school while her second medical exemption request was pending.9 The failure of certain Plaintiffs to comply with the new regulations resulted in their expulsion and in the denial of vital school services and programming.
C. Procedural Background
On July 23, 2020, Plaintiffs commenced this putative class action against Defendants, challenging the new regulations. After Defendants moved to dismiss Plaintiffs’ complaint for failure to state a claim,10 Plaintiffs filed a letter motion for leave to amend the complaint. Plaintiffs included with their motion the FAC, which alleged (1) four constitutional claims for relief based on the Fourteenth Amendment, including for violations of their substantive due process rights, their “liberty interest in parenting,” their “liberty interest in informed
The district court granted Defendants’ motions on February 17, 2021. Zucker, 520 F. Supp. 3d at 273-74. The district court rejected Plaintiffs’ argument that strict scrutiny applied and concluded that the new regulations were reasonably related to the State‘s public health objectives of maintaining high vaccination rates in schools and ensuring that medical exemptions were issued based on evidence-based guidance. Id. at 253, 273. The district court also dismissed the Rehabilitation Act claims, concluding that Plaintiffs had failed to plead plausible claims of disability discrimination. Id. at 272-73. Judgment was entered accordingly.
This appeal followed.
DISCUSSION
“We review de novo the denial of a motion to dismiss pursuant to
First, we consider whether the district court properly applied the motion to dismiss standard to the FAC. Second, we determine whether the new regulations violate Plaintiffs’ constitutional rights under the Fourteenth Amendment. Third, we address whether the regulations violate Plaintiffs’ rights under the Rehabilitation Act. We conclude that the district court did not err in granting Defendants’ motions to dismiss.
A. The District Court‘s Reliance on Documents Outside the FAC
Plaintiffs argue that the district court misapplied the
The district court took judicial notice of some of the exhibits submitted by Defendants in their motions to dismiss and determined that some exhibits were incorporated by reference into the FAC. Zucker, 520 F. Supp. 3d at 228-30. Relevant on appeal, it took judicial notice of: (1) recent legislative history of section 2164 of the New York Public Health Law, (2) the Emergency Regulations dated August 16, 2019, and (3) the Final Regulations adopted December 31, 2019. Id. at 229. Additionally, it determined that the Commissioner of Education‘s denial of Plaintiff Doe‘s appeal was incorporated into the FAC, or, in the alternative, it took judicial notice of that decision. Id. It also determined that the ACIP Guidelines had been incorporated by reference because they were relied upon by the FAC. Id.
Plaintiffs argue that these documents contradict facts alleged in the FAC; therefore, they contend, the district court‘s reliance on them was improper. For instance, the FAC alleges that unvaccinated children do not present a significant risk to community health. See App‘x at 761 (alleging that “the risk to the community from” medically fragile children foregoing immunizations
The district court did not err in considering the materials in question. First, as a fundamental matter, courts may take judicial notice of legislative history. See Territory of Alaska v. Am. Can Co., 358 U.S. 224, 226-27 (1959). The same is true for administrative record filings such as the denial of Plaintiff Doe‘s appeal. See Kavowras v. N.Y. Times Co., 328 F.3d 50, 57 (2d Cir. 2003).
Second, a complaint is considered to include a document “incorporated in it by reference,” or “where the complaint relies heavily upon its terms and effect.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (internal quotation marks omitted).
Third, it is true, as Plaintiffs argue, that when a court relies upon extrinsic materials “considered integral to the complaint, it must be clear on the recоrd that no dispute exists regarding the . . . accuracy of the document.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016) (internal quotation marks omitted). While Plaintiffs challenge the accuracy of certain factual findings made by the State in promulgating the regulations (as set forth in the extrinsic materials), they misapprehend the extent of the district court‘s consideration of those factual findings. To the extent that the district court relied on facts from the extrinsic materials that were in dispute, it did not rule on the factual accuracy of those materials; instead, it cited those materials to explain the decision-making of state authorities. See, e.g., Zucker, 520 F. Supp. 3d at 254-56; cf. Sensational Smiles, LLC v. Mullen, 793 F.3d 281, 285 (2d Cir. 2015) (“[I]t is not the role of the courts to second-guess the wisdom or logic of the State‘s decision to credit one form of disputed evidence over another.“).
We therefore conclude that the district court properly applied the 12(b)(6) motion standards in dismissing the FAC.
B. Constitutional Challenges
We next address Plaintiffs’ constitutional claims. Plaintiffs assert both facial and as applied challenges to the new regulations.
As a facial matter, Plaintiffs contend that the new regulations are invalid because they permit school authorities to deny a request for a medical exemption from school immunization requirements even when a state-licensed physician certifies that a child is at risk of serious harm or death from a vaccine. In other words, they contend that because they have a “fundamental right to a medical exemption” from immunization requirements in these circumstances, the State must grant the exemption “without further review or interference” when their physicians certify the need for an exemption. Pls.-Appellants’ Br. at 2, 4. For their as applied claims, Plaintiffs allege that the individual school district officials’ conduct enforcing the new regulations violated their substantive due process rights.
“‘[T]he touchstone of due process is protection of the individual against arbitrary action of government.‘” Leebaert v. Harrington, 332 F.3d 134, 139 (2d Cir. 2003) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)). To determine whether a government regulation infringes a substantive due process right, we first “determine whether the asserted right is fundamental.” Id. at 140 (internal quotation marks omitted). “Rights are fundamental when they are implicit in the concept of ordered liberty, or deeply rooted in this Nation‘s history and tradition.” Id. (internal quotation marks omitted). “When the right infringed is fundamental,” we apply strict scrutiny, and “the governmental regulation must be narrowly tailored to serve a compelling state interest.” Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996) (internal quotation marks omitted). When a “claimed right is not fundamental,” we apply rational basis review, and the “governmental regulation need only be reasonably related to a legitimate state objective.” Id. at 461.
An as applied challenge “requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the [plaintiff] to whom it was applied of a protected right.” Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006). We use the shocks the conscience test to assess substantive due process challenges to government conduct. See, e.g., Velez v. Levy, 401 F.3d 75, 93-94 (2d Cir. 2005) (explaining that the plaintiff must “allege governmental conduct that ‘is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience‘” (quoting Lewis, 523 U.S. at 847 n.8)); Hurd v. Fredenburgh, 984 F.3d 1075, 1087 (2d Cir.), cert. denied, 142 S. Ct. 109 (2021). Accordingly, to determine whether government conduct infringes on a substantive due process right, we first identify the “constitutional right at stake” or the “deprivation of property” interest at issue. Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).
57 F.3d 202, 211 (2d Cir. 1995).11 If we identify either, we then assess whether the government‘s alleged conduct shocks the conscience. See Velez, 401 F.3d at 93; Hurd, 984 F.3d at 1087.
2. Application
a. The Facial Challenge
Two questions are presented by the facial challenge: first, whether a fundamental right is implicated, such that strict scrutiny applies, and, second, once the appropriate level of judicial scrutiny is determined, whether the challenged regulations pass muster.
i. Is a Fundamental Right Implicated?
Plaintiffs contend that the new regulations violate their right to a medical exemption from school immunization requirements, their rights to life and liberty, and the rights of their children to an education. They argue that these rights are fundamental, and that therefore the regulations are subject to strict scrutiny. We are not persuaded, and we conclude that “fundamental rights” are not implicated.
First, Plaintiffs’ assertion of rights is overstated. The State is not forcing any
Second, Plaintiffs’ argument, at bottom, is that they have a “fundamental right” to obtain a medical exemption based solely on the recommendation -- or say-so -- of a child‘s treating physician. But no court has ever held that there is a right to a medical exemption from immunization based solely on the recommendation of a physician. Nor has any court held that such a right is “implicit in the concept of ordered liberty, or deeply rooted in this Nation‘s history and tradition.” Leebaert, 332 F.3d at 140 (internal quotation mark omitted). Indeed, in Jacobson v. Massachusetts, the Supreme Court explained that medical exemptions from mandatory immunization laws may be limited to сases in which it is “apparent or can be shown with reasonable certainty” that the vaccine would be harmful. 197 U.S. 11, 39 (1905) (emphasis added).
Third, the issue, of course, is not whether the Plaintiffs’ children have a right to a medical exemption. It is whether they are being deprived of their right to attend school because of the vaccine mandates. But, as the Supreme Court has made clear, there is no fundamental right to an education. See Plyler v. Doe, 457 U.S. 202, 223 (1982) (“Nor is education a fundamental right.“); see also Bryant v. N.Y. State Educ. Dep‘t, 692 F.3d 202, 217 (2d Cir. 2012) (holding that “[t]he right to public education is not fundamental“).13 While the right to an education is an important right, it is not a “fundamental right” such as to require strict scrutiny review.
Finally, as we further noted in Phillips, “no court appears ever to have held” that ”Jacobson requires that strict scrutiny be applied to immunization mandates.” 775 F.3d at 542 n.5. To be sure, courts have consistently rejected substantive due process challenges to vaccination requirements
Accordingly, we conclude that the new regulations do not implicate a fundamental right, and that therefore strict scrutiny does not apply.14
ii. Are the New Regulations Reasonably Related to a Legitimate State Objective?
Instead, we apply rational basis review. The FAC‘s substantive due process challenges are based principally on two provisions: (1) the new regulations’ definition of what “[m]ay be detrimental to the child‘s health,”
First, there clearly is a legitimate state objective for both provisions: protecting communities from serious, vaccine-preventable diseases through immunization. See Phillips, 775 F.3d at 542 (noting that Supreme Court recognized in Jacobson “the State‘s judgment that mandatory vaccination was in the interest of the population as a whole” (citing Jacobson, 197 U.S. at 38)); see also Zucht v. King, 260 U.S. 174, 176 (1922). Significantly, in 2018-2019, there was a measles outbreak in the State that was fueled by low vaccination rates in certain communities. See App‘x at 139. The Health Department noted this outbreak when it proposed the new regulations:
There currently exist outbreaks of measles in New York City and in the Counties of Rockland, Orange, and Westchester, and cases have also been identified in the County of Sullivan. Measles is a viral disease transmitted via the airborne route when a person with measles coughs or sneezes. It is one
of the most contagious diseases known. . . . The measles vaccine is very effective and remains the best protection against the disease. . . . . . . . However, because some individuals have chosen not to receive the vaccine and to not have their children vaccinated, outbreaks stemming from imported cases have occurred and new cases continue to occur in multiple counties across New York State.
Id.
Second, both provisions are reasonably related to furthering the State‘s interest in protecting communities against serious disease. After the legislative repeal of the non-medical exemption, the State adopted the new regulations to enforce its school immunization requirements. The new regulations thus sought to conform the State‘s immunization rules to “national immunization recommendations and guidelines” to curtail state-licensed physicians from issuing medical exemptions for non-medical reasons. Id. at 637. There was a real concern that with the elimination of the religious exemption, parents who did not want their children vaccinated would seek a medical exemption even when such an exemption was not warranted. See id. at 428 (noting that, “[i]n 2015, the State of Califоrnia removed non-medical exemptions to school immunization requirements without taking steps to strengthen the rules governing medical exemptions,” and that over “the next three years, the use of [those] exemptions to school immunization requirements more than tripled“).
The statute at issue here provides that a child may be exempted from immunization if any state-licensed physician certifies that “immunization may be detrimental to [the] child‘s health,”
We further conclude that there is a reasonable relationship between the delegation of authority to school districts to review and approve medical exemption requests and protecting communities from serious diseases. New York State law, as it has for decades, delegates to school officials the authority to grant a medical exemption from the State‘s school immunization requirements. See
Accordingly, we agree with the district court that the new regulations and the State‘s delegation of enforcement authority to school officials are reasonably related to a legitimate state objective, and that they therefore satisfy rational basis review.16
b. The As Applied Challenge
In its decision below, the district court carefully reviewed the claims against the School District Defendants, including the individual school district officials, based on their implementation of the new regulations. It concluded that the FAC failed to plausibly allege any substantive due process claims against them. Zucker, 520 F. Supp. 3d at 257-66.
We agree that the FAC fails to assert plausible claims against any of the individual school district officials, substantially for the reasons set forth by the district court in its decision below. As the district court concluded, the FAC did not plausibly allege an infringement of a constitutional right or the deprivation of a property interest in education. Id. at 258. The district court also correctly concluded that the FAC failed to plausibly allege that the individual school district officials engaged in conduct that was “outrageous,” “arbitrary,” “irrational,” or “conscience shocking.” Id. at 259, 261-64, 266 (internal quotation marks omitted).
Finally, as the district court correctly concluded that the FAC failed to plausibly allege any underlying constitutional violations, it did not err in dismissing the municipal liability claims against the School District Defendants. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)
Accordingly, we affirm the dismissal of Plaintiffs’ constitutional claims.
C. Rehabilitation Act Claims
Finally, we address whether the district court properly dismissed Plaintiffs’ Rehabilitation Act claims, which allege that the new regulations violate the Rehabilitation Act by excluding Plaintiffs’ children from school because of their disabilities, that is, because they “cannot safely take one or more of the mandatory vaccines.” Pls.-Appellants’ Br. at 75.
The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
As a threshold matter, the district court dismissed the Rehabilitation Act claims against the individual school district officials in their individual capacity on the basis that the Rehabilitation Act does not provide for individual liability. See Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“[N]either Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials.“); see also Perros v. Cnty. of Nassau, 238 F. Supp. 3d 395, 402 n.3 (E.D.N.Y. 2017) (“[I]t is well-established that there is no individual liability under the ADA or the Rehabilitation Act, whether the individual is sued in their official or individual capacity.“). Plaintiffs have not challenged this ruling in their briefs on appeal, and thus we affirm the dismissal of the Rehabilitation Act claims against the individual school district officials.17
As to the merits of the Rehabilitation Act claims, “[e]xclusion or discrimination may take the form of disparate treatment, disparate impact, or failure to make a reasonable accommodation.” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016). While Plaintiffs continue to press all three forms of discrimination in their briefs on appeal, they do so in a wholly conclusory manner. All three forms of claims fail in any event, for the FAC fails to plausibly allege that Plaintiffs’ children were excluded from participating in any federally-funded program or activity “solely by reason of her or his disability.”
First, the new regulations apply to all students, and not just to students with disabilities. See
Second, the new regulations do not bar students with disabilities from schools because of their disabilities. Children who cannot be safely vaccinated becausе of their disability will receive a medical exemption and may attend school, so long as they can demonstrate a medical need, based on a national evidence-based standard, for an exemption. Under the new regulations, a state-licensed physician can still certify the need for a medical exemption based on her clinical judgment, and an exemption will be granted if that judgment is based on evidence (and not merely her say-so) and is consistent with a nationally recognized evidence-based standard of care. Again, to the extent there is a disagreement on whether the requirements are met in any particular case, parents can appeal to the Commissioner of Education and seek judicial review in the state court system through an Article 78 proceeding.
Plaintiffs’ children here were denied medical exemptions not because of their disabilities, but because they admittedly failed to comply with the new procedures, which, as we have concluded above, are reasonably related to furthering a legitimate state objective.18
Notably, in D.A.B. v. New York City Department of Education, the district court rejected claims under, inter alia, the Rehabilitation Act. The parents of a child with autism brought suit after they were denied a medical exemption for their child from mandatory vaccination based on a letter from a pediatrician attesting to a “history of adverse reactions” to vaccinations. D.A.B. v. N.Y.C. Dep‘t of Educ., 45 F. Supp. 3d 400, 403, 407 (S.D.N.Y. 2014). The New York City Department of Education denied the request because it found “no medical basis for the exemption.” Id. at 403. The district court concluded that the Rehabilitation Act claim lacked merit because the plaintiffs could not show that the child “was excluded from school ‘solely by reason’ of his disability.” Id. at 407 (quoting
CONCLUSION
For the reasons set forth above, the district court‘s judgment is AFFIRMED.
Notes
The Supreme Court has explained that
[e]ducation, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State‘s social and economic legislation.
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
We also reject Plaintiffs’ argument that the new regulations violate the unconstitutional conditions doctrine by conditioning receipt of a benefit -- access to education -- on the waiver of a constitutional right. The unconstitutional conditions doctrine provides that the government may not deny a person a benefit “on a basis that infringes his constitutionally protected interests.” All. for Open Soc‘y Int‘l, Inc. v. U.S. Agency for Int‘l Dev., 651 F.3d 218, 231 (2d Cir. 2011), aff‘d sub nom. Agency for Int‘l Dev. v. All. for Open Soc‘y Int‘l, Inc., 570 U.S. 205 (2013) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972), overruled on other grounds by Rust v. Sullivan, 500 U.S. 173 (1991)). That doctrine, in other words, prevents the state from granting and withholding benefits as a stick to coerce recipients of those benefits to engage in certain behavior where, if the state regulated that behavior directly, that regulation would be a constitutional violation. Here, Plaintiffs have failed to plausibly allege that in enacting the challenged regulations, the State has “infringe[d]” upon any “constitutionally protected right[].” All. for Open Soc‘y Int‘l, Inc., 651 F.3d at 231. The State‘s decision to narrow the availability of medical exemptions to cases where a “child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care,”