Hilo High order lifted in TB refusal case

KEALAKEKUA, Hawaii » Big Island resident Leonard Horowitz failed to persuade a Kona judge yesterday to extend a court order allowing his daughter into a public high school without taking a tuberculosis test.

Horowitz, who is Jewish; his wife, Jackie Lindenbach, who is Christian; and their daughter Alena, 14, who shares both beliefs, say the girl should be exempt from the test on religious grounds of opposition to letting foreign substances into her blood.

On Oct. 4, Circuit Judge Elizabeth Strance issued a temporary restraining order telling the Department of Education to admit Alena to Hilo High School. The girl would suffer "irreparable harm" if she were not in school, the judge said.

But in a new hearing yesterday, Strance calmly but pointedly accused Horowitz and his attorney, Gary Zamber, of "a lack of candor" in failing to tell her certain facts at the Oct. 4 hearing.

Alena had been given home schooling previously, so there would be no irreparable harm if the girl returned to home schooling, the judge said.

Horowitz filed an "identical" case previously, Strance said. Deputy Attorney General John Molay said that case was dismissed, and Horowitz agreed that he could not file the suit again.

That case went to federal court, but the permanent dismissal applies also in state courts, Molay said. Otherwise, Horowitz could keep filing suits until he found a sympathetic judge.

Strance said she did not even have jurisdiction, since Zamber had not given the state timely notice of the request for the restraining order.

She refused to extend the Oct. 4 restraining order but stopped short of throwing out the case. Given her comments, that seems likely when the case resumes Nov. 20.

Horowitz said he does not know how he will school Alena now. In tears, Alena said she learns less in home schooling, cannot be with friends and cannot participate in school sports.

Since her case became public, several parents have contacted Horowitz, saying they too object to their children being given the TB tests, he said. Zamber said he would file a suit on their behalf soon.