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Families who sued a New York county and two public officials over a 2019 emergency order banning their unvaccinated children from public spaces during a measles outbreak late last week have reached a settlement, just days before going to trial.
Rockland County’s 2019 emergency order prohibited children without measles vaccinations, including those with religious exemptions, from attending school or visiting public places for months, following a measles outbreak in the region.
Michael Sussman, the attorney representing the families, told The Defender Rockland County will provide $750,000 to the plaintiffs, “to be distributed by us as we choose to do so.”
The case was sent to a jury trial in November 2022 after the 2nd U.S. Circuit Court of Appeals, in a unanimous decision, overturned a lower court’s finding that Rockland County public health authorities were justified in issuing the emergency order.
Sixteen families of children affected by the emergency order sued Rockland County, the county’s executive and its health commissioner in April 2019, alleging the order was “motivated by animus against religion.” The families said the order violated the Free Exercise Clause of the First Amendment.
The jury trial in the case was set to begin today in the U.S. District Court for the Southern District of New York.
According to Sussman, there was no indication Rockland County was ready to settle until late last week. He described the settlement as “a good result” for the plaintiffs.
“I thought the county acted responsibly in taking the case seriously because it involves serious rights,” Sussman said.
In an email, Mary Holland, Children’s Health Defense (CHD) president & CEO, told The Defender:
“The ‘measles epidemic’ that unfolded in 2018-19 in Brooklyn and Rockland County, New York, was the forerunner of the 2020 ‘COVID pandemic.’
“Intense media fear-mongering laid the groundwork for unlawful expulsion of unvaccinated children from schools — who had lawful religious exemptions — and lockdowns.
“After a long legal journey, Rockland County has de facto apologized — to the tune of $750,000 — to the families that the county treated wrongly. CHD is proud to have offered support to the families and lawyers in the case.”
CHD provided support to the plaintiffs and their legal counsel in this lawsuit.
Plaintiffs who spoke with The Defender said they are satisfied with the settlement.
“I am thrilled to be able to put five years of litigation and worry behind us,” said Maureen Satriano, who was a nurse at the Green Meadow Waldorf School, where her and other plaintiffs’ children attended.
“Many of us wonder how this might have played out differently if we had been in front of a jury,” Satriano said. “But ultimately, I am grateful to try to put some of this behind us.”
In some ways, the money is “irrelevant,” Satriano said. “No amount of money will ever undo that damage that was done to this entire community.”
Satriano said that as the school nurse, she did her best to support parents on both sides of the issue — “those whose children were affected by their friends and classmates not being allowed in school, and those for whom this was an assault on their religious beliefs.”
Paul Jaffe, lead plaintiff in the case, described the settlement as “kind of a relief.”
“We established a very strong legal precedent,” Jaffe said. “We were quite happy to just have the case finished … and I think we got a settlement that acknowledges, in a significant way, that the county really did transgress the law and that they have responsibility and exposure to liability in some ways.”
“I think it will allow most of us to get some measure of closure on the event,” he added.
‘Goalposts were constantly changing’
As reported by The Defender, at the start of the measles outbreak in October 2018, Rockland County Executive Ed Day and County Health Commissioner Patricia Schnabel Ruppert worked with the New York State Department of Health to implement progressively stricter measures to contain the spread.
Day and Ruppert ordered students who had not received measles vaccines and who were attending schools with confirmed measles cases or with vaccination rates below a certain threshold near areas with high concentrations of cases to stay home. Those children were later barred from entering public places.
County officials identified two zip codes in Rockland County “with the highest concentrations of confirmed cases, which cover[ed] approximately eleven square miles and primarily contain[ed] Hasidic Jewish communities.”
Ruppert progressively increased the vaccination threshold for schools, from an initial 70% to 95%.
On Dec. 3, 2018, the Green Meadow Waldorf School and the Otto Specht School were ordered to bar all non-vaccinated students from attending for 21 days because the schools were in one of the at-risk zip codes identified by public health officials and only one-third of students in those schools were vaccinated.
“They said if you can get up to 70% of the kids vaccinated, everybody could go back to school,” Jaffe said. “Then 80%, 90%, 95%, 97%. They kept changing that and then they said, ‘As long as there’s a case in the zip code.’”
“The center of the outbreak was five miles away from us and they were keeping us closed because of that,” Jaffe added. In his view, he said, Day made “all kinds of outlandish statements that demonstrated that he really had very little grasp of either the law or the science.”
Day slandered the kids and the parents on TV multiple times, according to Jaffe, calling them “selfish” and “ignorant” and saying that the kids were “dangerous and a threat to the community.”
“Our kids were in fact the healthiest and the law protected them in a way that he ignored,” Jaffe said.
On March 26, 2019, Day issued the local state of emergency notice, barring unvaccinated children aged 18 and younger from all places of public assembly, including schools, unless they had a medical exemption or documented serological immunity.
This order, which eliminated religious exemptions to vaccination, remained in effect until Sept. 25, 2019.
“One of the most challenging parts of my position was trying to communicate clear, accurate information and reassurance to all of the parents, but especially to those whose children were excluded for four and a half months,” Satriano said. “This was virtually impossible, as the goalposts were constantly changing.”
“It was crystal clear to even someone without a degree in public health, that the decisions being made were not based on science or even logic, for that matter,” she added.
“Obviously they were making up justifications for what they wanted to do,” Jaffe said. “That just shows how far away from the law and reason they had gotten. They started outside of the law, and they went further and further away.”
Emergency order ‘uprooted’ plaintiffs’ families
Sussman said he viewed the emergency order as “contrary to law” because New York state law at the time specified that individuals with religious exemptions to vaccination could not be barred from attending school unless there was an outbreak at their school.
The emergency order, which barred the students in question from attending school, caused “significant hardship” for their families, he said.
“We had many people who worked, and their lives effectively were based on a certain structure. That structure was clearly uprooted, and they had to either desist from working, change their work schedules or arrange childcare in different ways,” Sussman said.
According to Jaffe, “Nobody could stay home and take care of the kids. Some people got vaccinated, other people moved away quickly. It was an untenable situation for so many families.” Jaffe said he was obliged to unenroll his son, a starter on his school’s basketball team and “start over at a new school” in New Jersey.
“And so, the damages in my view are a small fraction of what would represent the real damage to so many people,” he said.
Had the case gone to trial, Sussman said, the plaintiffs “would’ve testified to the disruption in their children’s education and emotional lives.”
“These children went to Waldorf Schools and those schools, of course, have a certain very specific curriculum and rhythm, which was entirely interrupted. That had broader effects on their education,” he said.
Satriano said she was prepared to tell the jury the facts of the case as seen from her perspective, “with all the supporting documentation needed.”
Satriano maintained that records would have revealed to a jury the fact that the public health orders “were not about stopping a measles outbreak at all,” but as the health commissioner wrote in one of her letters, “It was about raising the vaccination rate in the county,” she said.
“It was also crystal clear to many that discrimination against people’s religious beliefs ran rampant in this county,” she added.
‘Callousness’ of county officials was ‘shocking’
Other plaintiffs also argued that public remarks made by Day and Ruppert suggested they were hostile toward religion and religious exemptions.
Day, in lobbying the New York state legislature to repeal what was then New York state’s statutory religious exemption for schoolchildren, said:
“There’s no such thing as a religious exemption. The bottom line here now is that in addition to the fear factor we have, we’ve had babies in ICUs. We’ve had a baby born with measles. …
“Let’s do something that was done willingly years ago until people got in the middle, raised approaches and thoughts that were debunked years ago, and now to the direct detriment to the health of other people in the state … It makes no sense. We need this legislation passed … to wait is a recipe for medical disaster.”
Day characterized “anti-vaxxers” as “loud, very vocal, also very ignorant,” implying that this included the parents who were invoking religious exemptions for their children in response to the emergency order.
“In other words, he undervalued the religiosity that predicated those exemptions,” Sussman said. “He essentially was taunting those who had the exemptions and calling them frauds.”
Had the case gone to trial, the “fundamental First Amendment right that states may not act out of hostility to religion” would have been the central issue that was going to be tried, Sussman said.
“It was shocking to watch the callousness that was demonstrated by some of the leaders in our county, the Department of Health and the Department of Education,” Satriano said.
Nevertheless, Day’s lobbying efforts were successful. The New York state legislature on June 13, 2019, passed a bill repealing all religious exemptions for vaccination — legislation that has since survived legal challenges.
In March 2023, the U.S. Supreme Court, without comment, refused to hear an appeal by parents who, in a separate case, filed a class-action lawsuit against the state of New York in a bid to overturn stricter vaccine medical exemption requirements for children attending the state’s schools.
The complaint was filed in July 2020, by parents from seven households, representing eight children ranging in age from 6-17, and CHD on behalf of its active members and all others similarly situated.
The U.S. District Court for the Northern District of New York on Feb. 17, 2021, dismissed the case, as did the 2nd Circuit, on July 29, 2022.
Acknowledging the help of CHD and its chairman on leave, Robert F. Kennedy Jr., in trying that case, Sussman said, “[We] tried to undo that and we could not succeed because the courts ultimately said that there is no right to a religious exemption.”
“I don’t think any right is absolute in our system, but the balance New York had was an appropriate balance for 50 years [before] the hysteria about measles,” Sussman said.
“That balance was overridden by exemption, by repeal, which I believe was inappropriate public policy and I will continue as a constitutional lawyer to believe it violates the First Amendment,” he said.
Sussman said the ruling was “contrary to decades of Supreme Court decisions, all which say … that the state cannot establish a state religion and therefore cannot question … people’s religious conviction,” and that “the state decisions were all wrong, because they accepted the religious intolerance as a basis for the repeal.”
Religious freedom and practice a ‘foundational’ constitutional principle
According to Sussman, “about five or six” of the 16 families represented in the case also left New York because of the ruling and the elimination of the religious exemption to vaccination.
“Each of them has their own story and they would have presented their story,” Sussman said. “They would’ve testified to their hardship during those months.”
Sussman and the plaintiffs said that the settlement symbolizes the importance of religious freedom and parental rights.
“I hope that this case is a reminder to elected and unelected officials that discrimination has no place in this world,” Satriano said. “Public health is not as black and white as some try to make it seem.”
“My sincere wish is that the results of this case have an impact beyond this tiny little county and will prevent something similar from happening to other parents,” she added.
“Whatever your overriding political ideology is, there are certain foundational issues that I think Americans should be able to agree on, and one of which is and has to be a tolerance and freedom of religious belief and practice,” Sussman said. “If we can’t agree on that, I don’t think we agree on very much.”
Holland said she hopes the case will serve as a model for other COVID-19-related cases. “May this case serve as a model for future wins in COVID litigation,” she said.
The Defender on occasion posts content related to Children’s Health Defense’s nonprofit mission that features Mr. Kennedy’s views on the issues CHD and The Defender regularly cover. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy, who is on leave from CHD and is running as an independent for president of the U.S.
