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Confusion Over Judge's Ruling As Unvaccinated Children Return To School In Rockland County

A sign from March 27, 2019 explaining the local state of emergency is displayed at the Rockland County Health Department in Pomona, N.Y.
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A sign from March 27, 2019 explaining the local state of emergency is displayed at the Rockland County Health Department in Pomona, N.Y. Photo Credit: Seth Wenig/AP/Shutterstock

Unvaccinated children, many of whom had been staying at home since December because of an ongoing measles outbreak, returned to schools in Rockland County Monday, three days after a judge temporarily overturned the county’s state of emergency.

But there were conflicting interpretations about how broad the judge’s order was. The county imposed the emergency order March 26th, banning children without the measles vaccine from visiting public places such as restaurants and shopping malls. This effectively prohibited all unvaccinated children from attending any schools in the county.

Earlier health department orders dating back to December prohibited unvaccinated children from attending schools with immunization rates lower than 95 percent. Rockland County officials over the weekend said that Judge Rolf Thorsen’s decision applied only to the emergency order, and that that earlier schools-specific order was still valid.

“It is the county’s understanding that the health commissioner’s previous order is still in effect, which bars unvaccinated students from schools that have less than a 95 percent vaccination rate,” wrote Susan Meyer, a spokeswoman for the county. On Monday Rockland County Executive Ed Day reiterated the county’s position that kids who attend schools with immunization rates less than 95 percent shouldn't go to class.

Meanwhile, Michael Sussman, an attorney for parents of unvaccinated kids, maintained that the order immediately allowed all unvaccinated kids in the country to return to class. And at Sussman’s consultation, about 45 unvaccinated children were welcomed back to Green Meadow Waldorf School, said Vicki Larson, director of communications at the school.

“We've been waiting to include them, as soon as it was legally possible to do so, so the teachers are really happy to have their students back,” Larson said. “Some of the older children looked a little more [like] they were carrying the seriousness of it a little more....the younger kids are just really happy to be back with their friends.”

The confusion stemmed from Judge Thorsen’s Friday afternoon decision. Though he was asked to rule specifically on the county’s emergency order — a separate lawsuit regarding the school regulations is under review by federal courts — his ruling went much further.

Rockland County, Thorsen wrote, was “hereby temporarily enjoined from enforcing said order and petitioners’ children are hereby permitted to return to their respective schools forthwith and otherwise assemble in public places.”

Judge Thorsen’s clerk hung up the phone when asked by a Gothamist/WNYC reporter to clarify the meaning of his order.

The Rockland County health department has confirmed 167 measles cases since last October. County Executive Ed Day said he imposed the emergency declaration after taking many other steps to contain the spread of the virus.

Parents of unvaccinated children sued the county in state court last week, arguing that the executive overstepped his powers because the current measles outbreak didn't qualify as an emergency. Judge Thorsen agreed with them, writing the current measles outbreak, “does not appear, on the record before the Court, to rise to the level of an ‘epidemic.’”

The filing was the second lawsuit by Sussman on behalf of parents of unvaccinated children. In March, the group had sued the county in federal court, arguing the county’s exclusion of unvaccinated children at schools was unconstitutional. In that case, federal Judge Vincent L. Brinccetti denied the parents’ motion for a temporary injunction and refused to let kids return to class. The underlying case will continue.

The county and attorneys for parents of unvaccinated children are due back in state court April 19 to hear whether the judge’s temporary stay should become permanent.

Gwynne Hogan is an associate producer at WNYC. You can follow her on Twitter at @GwynneFitz.

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