Start at Doe v. S.D. Unif. Dist.Judge Marsha Bennett and Mark Bennett ruled yesterday that the matter should be referred to:
Appellants, a 16-year-old high school student and her parents, filed an emergency motion for an injunction pending appeal, seeking to enjoin San Diego Unified School District … from requiring compliance with a student vaccination mandate. We granted Appellants’ partial motion on November 28, 2020. We ordered an injunction to be in place while pregnant students are eligible for a “per-se” deferral of vaccine under SDUSD’s student vaccination mandate. After that, the injunction would expire.
Appellees submitted a supporting statement and a letter to Interim Superintendent Lamont Jack on November 29th, 2021 stating that the deferral option was removed for students who are pregnant. The responsive letter of the appellants does not contest that the pregnancy option was removed.
In light of the elimination of “per se” for students pregnant, the injunction from the November 28, 2021 order was dissolved. This order provides our reasoning for why an injunction pending appeal is not warranted as to the now-modified student vaccination mandate….
SDUSD’s Student Vaccination Mandat states that any student 16 or over as of November 1, 2021 and not fully vaccinated for COVID-19 will not be allowed to take part in education on site or other extracurricular activities.
SDUSD permits medical exemptions from the mandate and conditional enrollment on-site education in for 30 days to certain students who have just been enrolled (students in foster care or homeless status). {These categories were drawn from California state law provisions applicable to other immunizations required for students.} To comply with the “stay put” statutory requirements, the mandate provides some procedural protections for students with Individualized Education Programs. The mandate previously allowed for “per se”, which would have meant that a student pregnant could delay vaccinations until she was ready. However, this “per se”, pregnancy deferral is no longer available. The SDUSD doesn’t allow exemptions to this mandate based on religious beliefs.
The appellants claim that Jill Doe was not exempted from the mandate for student vaccinations because she holds a belief that prevents her taking the vaccines.3By treating “comparable secular activity more favorably” than religious exercise, the government grants medical exemptions and conditional enrollments to certain students. Also, procedural protections are provided for IEP students. Check out Tandon v. Newsom (2021).
{Jill Doe refused to vaccinate because of the complaint filed and an emergency motion.[a]All three[ ]Some vaccines were manufactured using stem cell lines taken from aborted fetuses. Pfizer BioNTech vaccine is approved to be used in 16 year-olds. The vaccine does not contain stem cells. Third-party testing of the vaccine used fetal cell line, which were laboratory-grown cells that had been derived from two unborn fetuses. Jill Doe says that she does not believe in any vaccines that require the use of fetal line cells. We may not and do not question the legitimacy of Jill Doe’s religious beliefs regarding COVID-19 vaccinations.}
Appellants have not demonstrated a sufficient likelihood of success in showing that the district court erred in applying rational basis review, as opposed to strict scrutiny, to the student vaccination mandate….
[T]He plaintiffs haven’t raised serious concerns about the validity of the mandate. Only students currently enrolled are exempted fully from the need to have their vaccines for extracurricular and on-site learning. Only students who are unable to vaccinate due to contraindications/precautions as determined by the Centers for Disease Control and Prevention, or vaccine manufacturers can be granted a medical exemption. The request must also be signed by a doctor. Limitation of the medical exemption in this way serves the primary interest for imposing the mandate—protecting student “health and safety”—and so does not undermine the District’s interests as a religious exemption would. Check out Fulton v. City of Philadelphia (2021) (“A law … lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”).
Even though the records do not reveal the exact number of students who sought or were likely to request a medical exception, if this number is small, and the likelihood that many more students will seek a religious exemption are high, the medical exemption wouldn’t be “comparable to” the religious exemption. The exemptions would pose a risk to the government’s stated interests. Some medical exemptions, unlike religious exemptions, are expected to have a “limited duration”. SDUSD’s form for medical exemption clearly states, “[n]A medical exemption is not permanent and is only valid until the first date on a set of dates such as “[t]”The physician who filled out the exemption forms must specify the end date. Student with a medical condition that requires a long-term exemption for their health will have to apply each year. Although “it might be possible for”, it may not always be practical. [SDUSD]To manage COVID-19 risk posed by a limited set of objectively determined and largely temporary medical exemptions, “it could be a significant obstacle to effective disease prevention to allow a greater number of permanent religious exemptions.”
It is not difficult to question the general validity of the mandate’s 30-day conditional enrollment period for certain categories of new students. Conditionally enrolled students, like Jill Doe who is currently enrolled in college, are given a grace period for documentation to prove that they were vaccinated. They are still subject to the vaccine requirement. Therefore, the Appellants did not demonstrate that mandate treated conditional enrollees differently from students who use religious belief as grounds for staying unvaccinated. And, in line with the above analysis, the conditional enrollment period is both of temporary duration and of limited scope, and so does not undermine SDUSD’s asserted interests in student health and safety the way a religious exemption would….
Moreover, in light of the rigidity of the medical exemption and the limited time period for conditional enrollees to obtain records or vaccine doses—which does not appear to be subject to discretionary extension—there is no “mechanism for ‘individualized exemptions'” in this case….
[T]This case is significantly different from those involving COVID-19 restrictions and worship in churches or private homes. In these cases, plaintiffs were physically prevented from practicing their religion in groups. Jill Doe could, however, choose not to get the vaccine. However, the appellants contend that the mandate for student vaccination causes irreparable damage because it “burdens” students’ religions by placing an “important benefit” on conduct that is against their faith. However, there is no evidence to suggest that SDUSD’s remote-learning “alternative educational program” is any better than in-person.
Jill Doe claims that because she is an “preeminent at-heart athlete”, the mandate would inflict irreparable damage on her already promising prospects of getting a scholarship for sports. However, she has not provided any supporting details. She also elected to proceed anonymously in this case—including remaining anonymous to the District and its lawyers—thereby preventing SDUSD from contesting the truth of that statement. The case is without the knowledge of critical facts that will affect “irreparable harm” inquiry. Thus, the appellants likely have not been required to prove that they would suffer irreparable harm if there is no preliminary relief.
We note, last, that for the sake of completeness, the public interest strongly supports denying appellants’ motion. More than three quarters a million Americans died as a result of the COVID-19 epidemic. It is clear that vaccines can prevent COVID-19 from spreading. Therefore, the SDUSD vaccination mandate should be able to protect the safety and health of students, staff and the wider community. As the Supreme Court long acknowledged, the “right to freely practice religion” does not extend beyond regulation in the public’s interest. This includes regulation that reduces the chance of being “exposed.”[ing]The child or the community to communicable diseases or the former to ill-health or death. The public interest therefore favors SDUSD’s mandate….
Judge Sandra Ikuta voted against, contending, among others, that
[T]The School District claims that the mandate to immunize is necessary in order to provide the best quality instruction possible. safest environment“Ensuring that COVID-19 is not spread to students or employees makes it possible. Doe asserts that the two types of activities are similar: in-person attendance for students not vaccinated because they are religious or for logistical reasons, and student attendance for students who have been vaccinated. Both religious and secular activities present identical risk to the government’s stated interest in creating a safe environment for students and workers. They both lead to unvaccinated students being in the classroom and could spread COVID-19 among other students.
The School District has a mandate that treats religion and secular activities differently. The policy permits students who are not vaccinated to attend in person, as well as new unvaccinated enrollees, provided they meet certain requirements. The policy, however, does not permit AnyIn-person attendance of students who have not been vaccinated because they are religious. Students who have not been vaccinated religiously pose “similar risks” for the school. The mandate cannot be applied to in-person attendance.
The majority’s conclusion that a law does not apply generally is inconsistent with the legal framework. First, the majority claims the medical exclusion does not undermine the mandate’s general aplicability. It furthers the school district’s interest “protecting student safety and health” through protecting the individual student applying for the exemption. The argument focuses incorrectly on the exclusion and not the legitimate interest.
The School District clearly has good reasons to exempt medically fragile students from school. However, the District can still allow such students to take part in remote learning. However, the reasons that School District permits in-person attendance of some unvaccinated students is irrelevant. Instead, “[c]Omparability refers to “the risks” that unvaccinated students’ in-person attendance poses to the government’s “asserted interest.” The School District asserts that it is interested in ensuring “safety for all students” and workers by mandating vaccinations. This interest is undermined by allowing students not vaccinated to go to school. The majority of the group errs in the initial step of the framework, focusing more on the reasons the School District offered an exemption than the actual interest the School District claims to be defending.
A majority of the students claim that in-person student attendance for students not vaccinated due to medical reasons is less risky than attending religious school. Second, far fewer students are likely to seek religious exemptions and medical exemptions. This logic is entirely speculation. According to the majority, the “record does not reveal how many students have applied for or will apply for a medical exemption.” The record also does not contain any information about the number of students who would request religious exemptions. This kind of guesswork is not allowed by courts. Therefore, the majority cannot claim that the School district will flood with religious exemption requests if these were made.
{The School District expert testifies that this claim has been rebutted. He says the Medical Exemption is potentially wide-ranging and can be used “if a student’s doctor confirms through the same process as other vaccinations that there’s an underlying medical condition.” Makes the vaccine dangerous for patientsThe student can be granted a medical exemption if the doctor is available for discussion with District’s physicians. This characterization of the mandate not only casts doubt on the majority’s view that the exemption covers only a small number of students, but also suggests that the medical exemption may be an example of the “individualized exemptions” that render government regulations not generally applicable.}
Furthermore, the majority errs by claiming that the mandate grants students seeking a medical or logistical exclusion temporary relief and the risk of their attendance in person is not as high as the risk associated with students applying for a religious exclusion. The majority does not support the notion that the School District should treat religious activities more favourably than secular activity, simply because it is temporary. For religious students, even a temporary deferral might provide some relief.
{[And t]There is no reason to consider the temporary medical exemption to be temporary. The School District’s form for medical exemption (as opposed the expert testimony) states that students are eligible to receive a medical exemption if there is a “contraindication” to or precaution recognized by the CDC and the vaccine manufacturer. The only such contraindication is a severe allergic reaction or known diagnosed allergy to the vaccine or its ingredients, and the only precaution is a history of immediate allergic reaction to other vaccines or injectable therapies.}
The majority also argues conditional enrollment deferrals cannot be compared to religious exemptions because Doe was given the same time as new enrollees to adhere to the mandate. This confuses again the ReasonsThe exemption is available with asserted InterestThat justifies mandating it. The School District might have good reasons to allow new enrollees that meet the criteria 30 days to adhere to the mandate. However, in-person attendance by such conditional enrollees presents an identical risk to its asserted interest to prevent the spread of COVID-19 to students who are seeking religious exemptions. The mandate does not apply to all students. …
The School District’s mandate does not apply to everyone, so strict scrutiny is required. The mandate should be tailored specifically to serve an compelling interest. This is what the mandate of the School District does not meet. “Stemming the spread of COVID–19 is unquestionably a compelling interest.” If “the government allows other activities to continue with precautions,” it must prove that the religious activity at issue is less dangerous than the activities being allowed, even if the precautions are still in place. Otherwise, the same precautions are sufficient for all other activities and religious exercises.
The School District failed to show that non-pharmaceutical intervention (NPI) was performed.e.g.The exemptions students have to follow (e.g., covering their faces, regular testing, regular asymptomatic monitoring) aren’t “sufficient for religious exercise.” Teachers and staff are already allowed to enter the School District’s campus if they do not have the right to be vaccinated. It is clear that the School district has decided that this will allow them to meet their safety needs while still giving religiously-motivated individuals access. Because the School District asserts that it needs to be stricter in order meet its stated goals, the vaccine mandate does not have to be narrowly tailored. California’s new mandate would allow for a personal belief exemption. This further indicates that the School district’s mandate is too strict.
{“The overwhelming majority believe the remote-learning options offered by the School District are not less than in-person learning. However, if this were the case then AllRemote learning should be available to students who are not vaccinated. Otherwise, the School District’s mandate would be severely underinclusive.} …