A federal appeals court granted a family’s request for an injunction against a student COVID-19 vaccine mandate in San Diego Unified School District (SDUSD) schools but with a caveat.
The injunction was granted conditionally as long as a deferral for pregnant students is in place.
“There are eight exemptions and the justices focused on one,” said Paul Jonna, a San Diego attorney. “SDUSD took away the pregnancy deferral and they're hoping now that the Ninth Circuit will dissolve the injunction. If that happens, we are going to the U.S. Supreme Court to ask them to reinstate the injunction.”
The Thomas More Society hired Jonna as special counsel to represent the plaintiffs.
“The injunction blocks the mandate as it's currently constructed as unconstitutional,” he told the Southern California Record. “Although the court focused on the pregnancy deferral as one basis for why they think the mandate is unconstitutional, it doesn't only apply to pregnant students. It stops the entire mandate completely."
It was a 16-year-old student-athlete at Scripps Ranch High School along with her parents who sued SDUSD in October in federal court over its vaccine mandate for students. When the lower trial court denied the request, the plaintiffs appealed and asked the Ninth Circuit Court of Appeals to grant the injunction and the panel of three judges granted part of the injunction.
“The injunction shall be in effect only while a 'per se' deferral of vaccination is available to pregnant students under San Diego Unified School District’s COVID-19 vaccination mandate,” wrote Circuit Judges Marsha Berzon and Mark Bennett in the Nov. 28 order. “The injunction shall terminate upon the removal of the 'per se' deferral option for pregnant students.”
Judge Sandra Segal Ikuta dissented.
“I would keep the injunction in effect until the San Diego Unified School District ceases to treat any students (not just pregnant students) seeking relief from the vaccination mandate for secular reasons more favorably than students seeking relief for religious reasons because any unvaccinated student attending in-person classes poses the same risk to the school district’s interest in ensuring a safe school environment,” Ikuta wrote.
Like the Los Angeles Unified and Oakland school districts, SDUSD is requiring students 16 years and older to be fully vaccinated against the coronavirus by January or face the prospect of distance learning or independent study. SDUSD’s vaccine mandate differs from the statewide requirement in that it does not allow for religious exemptions
“There's a lot at stake for my client,” Jonna said. “She is a preeminent athlete who has played two different sports and she needs to attend school in person in order to continue and get a college scholarship, which is her dream. The school district is saying that if you have religious objections, you’ve got to stay home and engage in distance learning and withdraw from sports.”
The lawsuit names as defendants the San Diego Unified School District, Board President Richard Barrera, Board Vice President Sharon Whitehurst-Payne, Board members Michael McQuary, Kevin Beiser, Sabrina Bazzo, and interim Superintendent Lamont Jackson and alleges violations of the First Amendment.
“The Vaccination Roadmap is not neutral because it directly references religion to identify it as an invalid basis for not being able to be vaccinated,” Jonna wrote in the complaint. "Throughout the Vaccination Roadmap, it goes out of its way to expressly disclaim any willingness to accommodate religious practices.”
As previously reported, the plaintiff and her family are opposed to taking the vaccine because it is either manufactured or tested with aborted fetal cells.
“About 99.9% of school districts have not imposed a vaccine mandate,” Jonna added. “No state, other than California, has imposed a vaccine mandate and even California's mandate offers personal belief exemptions for the time being. So, San Diego Unified has gone way out there in the extreme with this mandate. It’s an outlier and if they're going to impose a mandate, which no school district has done, except for a handful, then they need to at least offer religious exemptions.”