On September 8, 1987, plaintiffs Alan Paul and Claudia Sherr filed a complaint against defendants Northport-East Northport Union Free School District, Dr. William J. Brosnan, the superintendent of the school district, John Scurti, the principal of the Dickinson Avenue Elementary School (collectively "school district defendants"), and the New York State Commissioner of Education on behalf of themselves and their son Jared Ryan Sherr alleging that defendants had violated the Sherr family's constitutionally protected rights of freedom of religion and equal protection of the law by refusing to allow Jared Sherr to forego the vaccinations § 2164 requires as a condition to entrance into school. The Sherrs assert that the inoculations § 2164 requires are contrary to their sincerely held beliefs and that, although they are not members of any formal religious group or denomination, they are entitled to benefit of the exemption set forth in s2164(9). After a hearing on the day the Sherrs filed their complaint, Chief Judge Weinstein granted plaintiff's request for a temporary restraining order allowing Jared to begin school when the school term opened the next day. On September 18, 1987, this Judge, to whom the Sherrs' case had been assigned, held a conference at which counsel for plaintiffs and the school district defendants, as well as Alan Paul Sherr, were present.

At this conference, the Court set a September 23, 1987 date for a hearing on plaintiffs' request for a preliminary injunction, directed that a similar case filed by Louis and Valerie Levy on behalf of themselves and their daughter Sandra Jasmine Levy that had originally been assigned to Judge Dearie should be reassigned to this Judge and consolidated with the Sherrs' action,²/ and ordered that the New York State Commissioner of Health be joined as an additional party to the litigation.

At the September 23 hearing, the Court first listened to argument from counsel for plaintiffs, the school district defendants, and the Commissioners of Education and Health (collectively "state defendants") pertaining to the constitutional questions these cases raise and established an expedited schedule for the parties to submit papers addressing issues surrounding the construction and constitutionality of § 2164. The Court then took testimony from Alan Paul Sherr and Louis Levy, and from Irene Taylor, the assistant superintendent for instruction of the Northport-East Northport Union Free School District. At the close of the hearing, the Court granted plaintiffs' motions in the two cases for a preliminary injunction, holding the evidence adduced so far adequately demonstrated irreparable harm, sufficiently serious questions going to the merits of the cases, and a balance of equities favoring plaintiffs.

On September 28, 1987, the Court resumed proceedings on the cases, at which time plaintiffs presented Professor Bennett Ramsey, an assistant professor of religion at Hamilton College, as an expert witness. Each of the parties rested after Professor Ramsey concluded his testimony, and the Court indicated that, after it had received the briefs it had requested from the parties, it would render a decision concerning the ultimate merits of the two cases. The Court will now address itself to the various issues surrounding plaintiffs' request for relief from this Court.

2/ The Levy action named as defendants the same parties as did the Sherr's case, except that it designated Clifford Bishop, the principal of the Norwood Avenue Elementary School, as a defendant rather than Dickinson Avenue Elementary School principal John Scurti.

III. ABSTENTION - Wexler Decision