Kentucky Judge OKs School Ban on Unvaccinated Student

BURLINGTON, Ky. (CN) – A Kentucky high school senior who refuses to be immunized against chickenpox can be banned from returning to school, a state judge ruled Tuesday.

Jerome Kunkel, 18, sued the Northern Kentucky Independent District Health Department last month for banning him and other unvaccinated students from school and extracurricular activities in the wake of a chickenpox outbreak.

Kunkel attends Assumption Academy, a Catholic high school in Walton, Kentucky, and plays on the basketball and baseball teams.

In February, the school registrar reported that six students had contracted chickenpox and only 18 percent of the school’s 240 students had received all of their vaccinations.

Four more Assumption students contracted the disease, along with 16 others at the elementary school across the street. 

With the state basketball tournament and other events coming up in Kentucky, Ohio and Indiana, the health district postponed all extracurricular activities for 21 days.

The basketball team was allowed to compete if its players proved to be immune from chickenpox. Kunkel and one other player were not immune.

By mid-March, 13 percent of Assumption’s student body had contracted chickenpox, so the health district extended the ban from extracurricular activities to school attendance.

Kunkel sued for an injunction on March 14, arguing the vaccine goes against his religious beliefs, “particularly because it is derived from aborted fetal cells.”

According to local Fox affiliate WXIX, the National Catholic Bioethics Center has stated the vaccine does not actually contain aborted fetal cells.

Kunkel also claimed that the health department violated his First Amendment right to freedom of religion. He alleged that Zach Raney, the department’s epidemiology manager, used the terms “you people” and “your beliefs” in a derogatory manner while discussing the matter with Kunkel’s father.

Boone County Circuit Court Judge James Schrand ruled Tuesday that Kunkel made a case that he is suffering “irreparable” harm by the school ban, but not by missing extracurricular activities.

However, he added that Kunkel is unlikely to succeed on his claims that the ban is unnecessary and not narrowly tailored to control the outbreak.

Citing a doctor’s testimony, Schrand stated that chickenpox, also called varicella, “is a highly contagious disease that can have very serious complications up to and including death.”

The judge added that the health department “is required to employ such measures as are necessary to ensure adequate isolation, restriction of employment or other control procedures that may be necessary to ensure cessation of transmission of infection.”

Schrand denied Kunkel’s request for an injunction, citing the district’s argument that it would undermine its authority and have “adverse consequences to public health.”

The health department said the ruling “underscores the critical need for public health departments to preserve the safety of the entire community, and in particular the safety of those members of our community who are most susceptible to the dire consequences when a serious, infectious disease, such as varicella, is left unabated and uncontrolled.”

Kunkel’s attorney, Christopher Wiest, said in a statement Wednesday that they are “deeply disappointed with the ruling.”

“We will be appealing the judge’s ruling on a narrow legal issue. The central legal issue, under [state law], was that the health department had the burden to show, by clear and convincing evidence, that their measures were directed towards a compelling government interest, and they used the least restrictive means to meet that interest,” Wiest said. “The court impermissibly shifted the burden to us, and ignored the statutory requirements.”

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