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Court of Appeal:
School District May Not Mandate COVID-19 Inoculations
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has held that a school district may not require that students be inoculated against COVID-19 in order to attend classes in person or participate in sports, declaring that state law is preemptive.
“A century ago during a smallpox epidemic, the California Supreme Court held that the Legislature may require school children to be vaccinated against that disease,” Justice William Dato said in an opinion filed Tuesday, adding:
“Since then, the Legislature has required students to be vaccinated for 10 diseases—but COVID-19 is not yet among them.”
Challenge Rejected
The San Diego Unified School District promulgated a vaccination mandate for all students 16 years of age or older. San Diego Superior Court Judge John S. Meyer rejected a challenge to the requirement mounted by a group called “Let Them Choose” and, in a separate action, by the mother of a 16-year-old student.
“The superior court determined there was a ‘statewide standard for school vaccination,’ leaving ‘no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates,’ ” Dato recited. “On independent review, we reach the same conclusion and affirm the judgment.”
He pointed to Health and Safety Code §120335 which provides that the “governing authority” of any school district “shall not unconditionally admit any person as a pupil of any private or public elementary or secondary school…unless, prior to his or her first admission to that institution, he or she has been fully immunized.”
It then lists 10 diseases against which the student must be inoculated and says that diseases may be added by the California Department of Public Health, “taking into consideration the recommendations of the Advisory Committee on Immunization Practices of the United States Department of Health and Human Services, the American Academy of Pediatrics, and the American Academy of Family Physicians.”
Negative Implication
Dato wrote:
“On its face, section 120335 provides that a student who is not ‘fully immunized’ within the meaning of the statute cannot be unconditionally admitted to school. No one disputes that. But what about a pupil who is fully immunized within the meaning of section 120335, but is not vaccinated for COVID-19? Reasonably construed, section 120335 speaks to that too. By creating a comprehensive state procedure to determine the compulsory vaccinations for school attendance, the statute by negative-but-necessary implication provides that students who comply with state immunization requirements (and any other eligibility rules, e.g., residency, age) are entitled to attend California schools, and the ‘governing authority’ is not permitted to add its own vaccination mandates.”
He went on to say:
“[S]ection 120335 does much more than set statewide minimums. By creating a process by which new immunizations can be added to the statutory list without further legislative action, it expresses a directive that the vaccinations required for school attendance present a statewide issue subject to statewide criteria. In a nutshell, local variations must give way to a uniform state standard.”
Although Meyer gave a green light to implementation of the school district’s policy, Div. One on Feb. 1 stayed enforcement of the judgment during pendency of the appeal.
Mootness Raised
In a footnote, Dato said:
“In June 2022, the District informed us that it has delayed implementing the vaccine mandate to no earlier than July 2023. For the first time at oral argument in November 2022, its attorney asserted this delay rendered the consolidated appeals moot….
“For obvious considerations of fairness, we ordinarily do not consider points made for the first time at oral argument…, and we decline to do so here. The District could have raised this issue at least five months ago, either by motion or in its reply brief in response to an argument by Let Them Choose that the postponement did not make the case moot. It did neither.
“Even putting aside forfeiture, the cases are not moot because merely postponing (as distinguished from cancelling) the vaccination mandate does not impact this court’s ability to render effective relief. In any event, we would exercise our discretion to decide the consolidated appeals because they present issues of broad public interest that are likely to recur.”
The case is Let Them Choose v. San Diego Unified School District, 2022 S.O.S. 5788.
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