A federal appellate court has reversed an injunction that had lifted a mandate issued by the San Diego Unified School District (SDUSD) requiring students to be vaccinated against COVID-19.
“The Ninth Circuit’s decision refusing to block SDUSD’s unconstitutional vaccine mandate ignores binding precedent from the U.S. Supreme Court,” said Paul Jonna, a San Diego attorney who challenged the school district’s vaccine mandate.
The injunction was granted conditionally as long as a deferral for pregnant students was in place but once SDUSD removed the pregnancy deferral from the mandate, the Ninth Circuit issued a decision that dissolved the ban on forced immunization.
“Appellants have not carried their burden to establish a likelihood of success on the merits, or that they will suffer irreparable harm if this Court does not issue an injunction, or that the public interest weighs in their favor. Appellants’ motion for an injunction pending appeal is therefore denied,” wrote Circuit Judges Marsha Berzon and Mark Bennett in their Dec. 4 opinion.
However, Judge Sandra Segal Ikuta disagreed with the majority ruling in a 16- page opinion.
“Because Doe established that there are serious questions going to the merits and a likelihood of irreparable injury, and the balance of hardships and public interest tip sharply in her favor, we should grant Doe’s motion for an injunction pending appeal,” wrote Ikuta. “I therefore dissent.”
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.
Doe, the appellant, is a 16-year-old student-athlete at Scripps Ranch High School who sued SDUSD along with her parents in October in federal court because the family is opposed to taking the vaccine because it is either manufactured or tested with aborted fetal cells.
“The School District has not met its burden of showing that ‘nonpharmaceutical interventions (e.g., face coverings, regular asymptomatic testing)’ that exempted students must follow do not ‘suffice for religious exercise too,” Ikuta further stated in her dissenting opinion. “Additionally, the School District already accommodates teachers and staff who remain unvaccinated due to personal beliefs by allowing them access to the campus, which shows that the School District has determined that it can satisfy its safety interests while still allowing persons unvaccinated on religious grounds to access campus.”
Jonna, hired by the Thomas More Society to represent the plaintiffs, is vowing to appeal the denial to the U.S. Supreme Court.
“We will seek emergency relief from the U.S Supreme Court as soon as possible — and we’re confident that a majority of Justices will conclude, like Judge Ikuta, that SDUSD’s vaccine mandate violates the First Amendment and must be enjoined unless SDUSD offers students religious exemptions,” Jonna told the Southern California Record.
As previously reported in the Southern California Record, the appellant is a student-athlete who has played two different sports and needs to attend school in person in order to continue and get a college scholarship.
“The majority also concludes that Doe’s inability to obtain an athletic scholarship due to the School District’s mandate is too speculative to constitute an irreparable injury for the purposes of a preliminary injunction,” Ikuta wrote. “This argument misses the point: Doe’s irreparable injury is not her inability to obtain an athletic scholarship, but the loss of her First Amendment rights, which “unquestionably constitutes irreparable injury.”