The Ninth Circuit Court of Appeals on Sunday temporarily blocked the mandate for a San Diego Unified student’s COVID-19 vaccine from taking effect — a day before the school district’s deadline for students to get their first dose.
However, the San Diego Uniform attorney said Monday that he expects the mandate to be restored soon, because the district has already taken steps to address one of the court’s primary concerns.
The court sided with a 16-year-old at Scripps Ranch High School who filed a lawsuit last month saying San Diego Unified’s vaccine mandate violated her religious beliefs.
The San Diego Unified School Board voted in late September to require that staff and students 16 or older be vaccinated against COVID by December 20, which means they must get their first dose by Monday, November 29, in order to continue attending school. Personally. Those who do not comply will have to go to the school remotely.
The student, identified as Jill Doe in the complaint, said her Christian beliefs preclude her from taking the COVID vaccine because COVID vaccines were tested using historical stem cell lines derived from abortions during the 1970s and 1980s.
COVID vaccines do not contain any aborted fetal cells. These stem cell lines have been used in vaccine testing.
Sunday’s Ninth Circuit decision came 11 days after a federal judge in San Diego denied the student’s request for a restraining order against the county’s mandate.
The Ninth Circuit granted the plaintiff’s request for an emergency restraining order against the district’s mandate, pending appeal.
The court blocked the authorization only as long as San Diego Unified continued to allow pregnant students to delay getting the vaccine. If San Diego Unified stops offering deferments to pregnant students, the court’s ban on authorization will expire.
Mark Pressy, an attorney representing San Diego Unified, said Monday afternoon that he expects the Ninth Circuit order to be short-lived. He said the district has already taken steps to remove the option to postpone pregnancy and is currently notifying the court.
“The key decision is that the court appears prepared to uphold the county’s vaccination mandate against several lines of attack,” Prey said in an email.
Pricey added that none of the Uniform students in San Diego had asked to postpone vaccination for pregnancy-related reasons.
Plaintiff’s attorneys argued that the district’s state discriminates against students like it who object to it on religious grounds, because the district grants vaccine deferments and exemptions to certain students for some non-religious reasons, but not on religious grounds.
For example, students are allowed to have medical waivers. Some SUND students don’t have to get vaccinated right away, but eventually still do, including foster youth, homeless students, immigrant students, students from military families, and pregnant students.
Allowing non-religious exemptions and banning religious exemptions is discriminatory, Paul Juna, an attorney representing the Scripps Ranch School student, said in a statement.
“SDUSD cannot treat students better if they seek exemption from vaccination for secular, not religious, reasons,” he said. “The COVID system of secular favorites but religious outcasts must end.”
San Diego Unified attorneys argued in court documents that the district’s vaccine mandate is consistent with state law, which allows medical exemptions and prohibits personal belief exemptions for the 10 childhood vaccines already required by the state, and does not include the COVID vaccine.
“The district has modeled its vaccine authorization on existing state law, including the narrow and objective process for seeking and obtaining a medical exemption when a vaccination poses a risk to the health and safety of an individual student,” Brisey said.
San Diego Univ. attorneys also accused the plaintiff of spreading lies in court filings, such as suggesting that the district grants vaccine exemptions to certain student groups, which is not the case. The province grants exemptions from vaccination to students for medical reasons only.
The attorneys wrote that “the plaintiffs are making every effort, including misrepresentation and omitting others, to paint a picture of an authorization containing multiple flimsy exemptions.” “Their efforts fail in the face of facts and the law.”
School Board Chairman Richard Barrera said the district does not offer religious or personal belief waivers because the district does not want families to abuse such waivers as an authorization loophole. However, San Diego Unified said it is accepting religious exemption requests from employees because federal law requires it.
Meanwhile, Gov. Gavin Newsom said he will allow personal belief exemptions from the COVID vaccine mandate in schools statewide, but some state lawmakers have said they want to restrict such exemptions for the COVID vaccine. These exceptions are already prohibited on the other 10 childhood vaccinations the state requires.
The decision by the Court of Appeals provides temporary relief to unvaccinated students, who would have had to forgo in-person learning starting in January 2022.
Under the consolidated state of San Diego, students age 16 and older who have not been fully vaccinated by December 20 will forfeit their opportunity to attend school in person and participate in extracurricular activities. They will have to learn remotely, through a program such as the district’s virtual school or through independent study.
By the end of October, three-quarters of San Diego uniformed students 16 and older had received at least one dose of the vaccine, district officials said in mid-November. There are approximately 14,000 students age 16 and older at San Diego Unified.
About 82 percent of the district’s 14,000 employees had had at least one dose of the vaccine by mid-November.
Sunday’s decision was made by a panel of three judges in the Ninth Circuit: Marsha Perzon, Mark Bennett, and Sandra Ikota, who issued a partial dissent. Their decision is pending appeal.
In her opposition, Ekota said she does not believe the vaccine mandate should be stopped only while pregnant female students are allowed exceptions. She noted that it is unfair for San Diego Unified to grant exceptions to any student group, not just pregnant students, for secular reasons while denying students who want them for religious reasons.
“Any unvaccinated student attending face-to-face lessons poses the same risks to the school district’s interest in ensuring a safe school environment,” Ikota wrote.
Lawyers for the plaintiff said they were “extremely pleased” with the court’s decision.
“Although the case is still in its early stages, this is a huge victory,” Jonah said.
He added that United San Diego should change its vaccine authorization policy to allow religious exemptions for students.
“Otherwise, we are confident that we will fully defend our clients’ rights either in the Ninth Circuit or, if necessary, in the US Supreme Court,” Jonah said.