Starting at Doe v. San Diego Unified School Dist.This was decided in an emergency on Sunday. Judge Marsha Berzon is the author of the majority opinion and Judge Mark Bennett is a co-author.
The appellants opposed emergency motion to injures pending appeal has been granted in part. While pregnant students have the option to defer vaccination, the injunction shall remain in force. After the COVID-19 vaccination mandate is removed, the injunction will be lifted.
Today’s order comes with great caution. This is because plaintiffs have stated that the date tomorrow, Nov 29, 2021 is when students over 16 years old must receive their first dose of vaccine to prevent them from being restricted from independent study in January 2022. Shortly, the panel will issue written dispositions explaining their conclusions.
Sandra Ikuta (Judge) concurred in part, and dissented part.
Doe’s urgent motion for injunction in lieu of appeal is my agreement. The injunction would remain in force until San Diego Unified Schools District stops treating any student (including pregnant students) who seek relief from the vaccine mandate for secular purposes more favorably than students who are seeking relief because they pose the same threat to the district’s interests in maintaining a safe school environment. See Tandon v. Newsom141 S. Ct.1294, 1296 (2021). (holding strict scrutiny when government regulations treat “any comparable secular activity more favorably that religious exercise” and “[c]”Omparability” refers to the risk that various activities may pose for the interests of the government. (citing Cuomo, Roman Catholic Diocese of Brooklyn, 141 S. Ct. 63, 6768 (2020)).