High school girl fighting vaccine mandate will seek US Supreme Court relief

The attorney for a high school girl and her parents challenging San Diego Unified School District's COVID-19 vaccination mandate for students said Monday he will seek emergency relief from the U.S. Supreme Court after a federal appellate panel rejected their challenge.

A divided 9th U.S. Circuit Court of Appeals panel on Saturday denied an injunction to block the district's mandate, which requires students older than 16 to be vaccinated as of Jan. 24 to attend school in person and participate in extracurricular activities such as sports.

"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," the panel majority wrote.

Paul M. Jonna, a partner at LiMandri & Jonna LLP who represents the girl and her family, said in an email Monday he would take the case immediately to the U.S. Supreme Court and bypass 9th Circuit en banc review.

"We plan to go straight to the U.S. Supreme Court, given the need for urgent relief," Jonna wrote.

The Scripps Ranch High School student said she objects to getting the COVID-19 vaccine on religious grounds because it was tested using material derived from stem cell lines from aborted fetuses.

The panel majority's unsigned order was written by 9th Circuit Judge Marsha Berzon, an appointee of President Bill Clinton, and 9th Circuit Judge Mark J. Bennett, an appointee of President Donald Trump.

"Appellants have not demonstrated a sufficient likelihood of success in showing that the district court erred in applying rational basis review, as opposed to strict scrutiny, to the student vaccination mandate," they wrote. John Doe et al. v. San Diego Unified School District, 21-56259 (9th Cir., filed Nov. 18, 2021).

9th Circuit Judge Sandra S. Ikuta, an appointee of President George W. Bush, dissented, arguing the case should be decided under strict scrutiny.

Ikuta argued an injunction should be granted against the district's vaccine mandate pending the appeal.

She cited a Supreme Court decision in April, enjoining California from enforcing COVID-19 restrictions on private gatherings as applied to at-home religious exercises in private homes. Tandon v. Newsom, 141 S. Ct. 1294 (2021).

"Specifically, the policy allows in-person attendance by students unvaccinated for medical reasons, and in-person attendance by unvaccinated new enrollees who meet certain criteria," Ikuta wrote. "By contrast, the policy does not allow any form of in-person attendance by students 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 pointed out that other unvaccinated students, such as newly-enrolled students or those in Individualized Education Programs, are permitted to attend school for a time, a decision she said undermines the district's argument that a vaccine is essential.

"Accordingly, the vaccine mandate is stricter than necessary to meet the School District's asserted goals, and therefore is not narrowly tailored," she concluded.

The panel majority countered that the plaintiffs have not raised "serious arguments" that the vaccine mandate makes any reference to religion.

"Looking beyond facial neutrality, 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," the majority wrote.

Berzon and Bennett attempted to distinguish Doe's case from Tandon.

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

Mark R. Bresse, an attorney with Atkinson, Andelson, Loya, Ruud & Romo who represents the district, wrote Monday the policy was changed Nov. 29, a day after the same 9th Circuit panel temporarily blocked the mandate.