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Ninth Circuit lifts block on San Diego Unified vaccine mandate

Only those students aged 16 and up who can receive the fully FDA approved Pfizer vaccine for Covid-19 will be required to be fully vaccinated by Jan. 24.

(CN) — The Ninth Circuit reversed course over the weekend and lifted a temporary restraining order blocking the second largest school district in California from enforcing its Covid-19 vaccine mandate for teenage students returning to in-person learning after the holidays.

In a 16-page order, a duo of Ninth Circuit judges declined to continue blocking the San Diego Unified School District from enforcing its vaccination mandate for those students returning to in-person classroom instruction or extracurricular activities Jan. 24.

The reversal follows a limited emergency restraining order implemented by the appellate court last week which blocked the school district from enforcing the mandate unless and until it removed an exemption for pregnant students to defer vaccination until after they give birth.

San Diego Unified promptly revoked the exemption — which attorneys for the school district said no students had applied for — and the injunction terminated under the terms of the order.

While the district's vaccine mandate listed a Nov. 29 deadline for eligible students to receive their first dose of the vaccine, with their second dose due by Dec. 20, those deadlines are apparently not being monitored by the school district.

During a separate restraining order hearing Dec. 2 in a parallel case brought in San Diego Superior Court by Let Them Choose, a group of parents seeking to block the vaccine mandate, district attorney Mark Bresee said the “critical date” is Jan. 24 when students returning from holiday break must be vaccinated.

Bresee’s deadline confirmation upended the parent group’s claim students who missed the deadline to receive the first vaccine dose are being told they’re “in violation” by the district.

On Saturday, U.S. Circuit Judges Marsha Berzon, a Bill Clinton appointee, and Donald Trump appointee Mark Bennett found 16-year-old Jill Doe was unlikely to succeed on her claims the school district’s vaccination policy violates the Free Exercise Clause because her religious belief prohibits her from taking the vaccine.

The student failed to raise a serious question as to the neutrality of the vaccine mandate, which made no reference to religion and only allows limited medical exemptions for certain students.

“Appellants have not shown a likelihood of establishing that the mandate was implemented with the aim of suppressing religious belief, rather than protecting the health and safety of students, staff, and the community,” Berzon wrote for the majority.

Students seeking medical exemptions must have their doctor fill out a form specifying an “end date” when the exemption would expire, further bolstering the school district’s position the medical exemptions are “limited in duration” unlike a religious exemption.

Those students with longer-term medical exemptions will need to reapply for an exemption annually.

As for a 30-day “conditional enrollment” grace period for certain newly enrolling students who may not be vaccinated including students experiencing homelessness, in ‘migrant status,’ foster care or military families, Berzon found the courtesy “does not raise a serious question concerning the mandate’s general applicability.”

She added: “Conditionally enrolled students are simply given a grace period to provide documentation proving that they have been vaccinated before they may continue with on-site education; they are not exempted from the vaccination requirement itself. Thus, appellants have not demonstrated that the mandate treats conditional enrollees more favorably than students who invoke religious beliefs as their ground for remaining unvaccinated.”

Berzon also pointed out the case seeking a religious exemption from complying with the district's vaccine mandate was not like a challenge brought earlier in the pandemic by Doe’s attorney Paul Jonna regarding California Covid-19 restrictions on worship in churches.

“In those cases, the plaintiffs were literally prevented from exercising their religion in group settings. Here, in contrast, Jill Doe may exercise her religion by declining to receive the vaccination,” Berzon wrote.

She noted Doe had failed to submit evidence indicating the school district's remote learning “alternative education program” is inferior to in-person learning.

Likewise, the student’s claim she would suffer irreparable injury by being denied the opportunity to participate in sports and potentially receive a sports scholarship to attend college “with a good season” also doesn’t hold up, Berzon wrote, as the student’s alleged status as a “preeminent athlete” and her belief she could win a scholarship is speculative.

“The record indicates that vaccines are safe and effective at preventing the spread of Covid-19, and that SDUSD’s vaccination mandate is therefore likely to promote the health and safety of SDUSD’s students and staff, as well as the broader community,” Berzon concluded.

In a 15-page dissent, U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, found Doe had raised serious questions going to the merits of her free exercise claim.

Ikuta found students who remain unvaccinated for “medical or logistical reasons” pose the same risk to the school district’s goal of maintaining the “safest environment possible for all students and employees” as those students who remain unvaccinated for religious reasons.

“Because in-person attendance by students who are unvaccinated for religious reasons poses ‘similar risks’ to the school environment as in-person attendance by students who are unvaccinated for medical or logistical reasons, the mandate is not generally applicable,” Ikuta wrote.

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