TB Test Keeps Student Out of School |
Saturday, October 14, 2006 9:43 AM HST
Court Order to Allow Student to Stay In Class Is Lifted
by Alan Schnepf
Tribune-Herald Staff Writer
Original Article |
A Kona judge lifted an order Thursday that would have kept a Hilo High School freshman in school even though she has refused to take a state-mandated tuberculosis test.
Alena Horowitz, 14, and her father, Leonard, object to the test on religious grounds and say it actually can be hazardous to a person's health. After being told she would not be allowed in school without the test, her family filed a lawsuit against the state Department of Health and the Department of Education, asking for a temporary order allowing her to return while the case was litigated.
Circuit Judge Elizabeth Strance granted that order Oct. 4, finding that Alena would suffer irreparable harm if she was not allowed in school. The order allowing Alena back in school was up for review Thursday, however. Deputy Attorney General Heidi Rian said Strance had new information about the case that prompted her to decline an extension of the order allowing Alena in school.
The most important aspect was the fact that Horowitz was part of a similar case in 2004 that was dismissed with prejudice in federal court. A case dismissed with prejudice cannot be refiled, even in a different court.
Rian also said Strance was not aware that Alena had been homeschooled, which lessens the harm of not being allowed in Hilo High.
Gary Zamber, an attorney for the Horowitz family, said the fight against mandatory TB testing is not over, however. Leonard Horowitz has already renewed a push for legislation that would allow a religious exemption to the test.
Zamber said there are also other people who are against the test that may pursue a lawsuit to change the mandate. Those people would not be able to have affiliation with a ministry called "The Manifestation of Divine Will," which was the plaintiff in the 2004 federal case.
"The entire issue itself is still open to litigation," Zamber said Friday.
Although Strance declined to extend the order allowing Alena back into high school, the case is still active. A hearing on the matter is scheduled for Nov. 20.
Hilo High School Principal Robert Dircks has said he is simply following rules laid out by the state Department of Health.
Alan Schnepf can be reached at aschnepf@hawaiitribune-herald.com.
Alena Horowitz, 14, and her father, Leonard, object to the test on religious grounds and say it actually can be hazardous to a person's health. After being told she would not be allowed in school without the test, her family filed a lawsuit against the state Department of Health and the Department of Education, asking for a temporary order allowing her to return while the case was litigated.
Circuit Judge Elizabeth Strance granted that order Oct. 4, finding that Alena would suffer irreparable harm if she was not allowed in school. The order allowing Alena back in school was up for review Thursday, however. Deputy Attorney General Heidi Rian said Strance had new information about the case that prompted her to decline an extension of the order allowing Alena in school.
The most important aspect was the fact that Horowitz was part of a similar case in 2004 that was dismissed with prejudice in federal court. A case dismissed with prejudice cannot be refiled, even in a different court.
Rian also said Strance was not aware that Alena had been homeschooled, which lessens the harm of not being allowed in Hilo High.
Gary Zamber, an attorney for the Horowitz family, said the fight against mandatory TB testing is not over, however. Leonard Horowitz has already renewed a push for legislation that would allow a religious exemption to the test.
Zamber said there are also other people who are against the test that may pursue a lawsuit to change the mandate. Those people would not be able to have affiliation with a ministry called "The Manifestation of Divine Will," which was the plaintiff in the 2004 federal case.
"The entire issue itself is still open to litigation," Zamber said Friday.
Although Strance declined to extend the order allowing Alena back into high school, the case is still active. A hearing on the matter is scheduled for Nov. 20.
Hilo High School Principal Robert Dircks has said he is simply following rules laid out by the state Department of Health.
Alan Schnepf can be reached at aschnepf@hawaiitribune-herald.com.
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Dr. Leonard G. Horowitz co-authored this legal challenge to the state's TB skin testing program with Hilo, HI Attorney Gary Zamber.. Dr. Horowitz is an internationally known authority in public health and emerging diseases. One of his three national best-sellers, Emerging Viruses: AIDS & Ebola—Nature, Accident or Intentional? is credited by federal health officials as being among the most persuasive vaccine risk awareness texts in America. Dr. Horowitz lives with his wife and three unvaccinated children on the Big Island of Hawaii. His official website is www.drlenhorowitz.com.
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