School district can’t mandate vaccine, judge rules

The fate of San Diego Unified School District's student COVID-19 vaccine mandate is uncertain in light of a judge's ruling.

San Diego County Superior Court Judge John S. Meyer issued a tentative order last week that the district cannot impose its own vaccine requirement; only the state Department of Public Health can do so.

The school district plans to appeal the judgment once it is final and seek a stay of enforcement pending appeal, according to plaintiffs' attorney Paul M. Jonna, a partner with LiMandri & Jonna LLP, in a letter to the U.S. Supreme Court concerning a federal lawsuit on the same subject.

Jonna filed an application for emergency relief with the Supreme Court after the 9th U.S. Circuit Court of Appeals on Dec. 4 denied an injunction to block the district's mandate. That application is pending.

The district mandate requires students 16 and older to be vaccinated as of Jan. 24 in order to attend school in person and participate in extracurricular activities such as sports.

Maureen Magee, the school district's communications director, and Mark R. Bresee, an attorney with Atkinson, Andelson, Loya, Ruud & Romo who represents the district, could not be reached for comment on Meyer's ruling Thursday.

"The San Diego Unified School District is disappointed that (Meyer) concluded only the state can act regarding vaccinations, even though the law specifically allows and encourages local vaccination programs," Bresee said in a statement to the San Diego Union-Tribune.

Meyer's tentative order does not address objections to the COVID-19 vaccine on religious grounds and states the California Supreme Court upheld a "vaccination act" in 1890 requiring schoolchildren to be vaccinated for smallpox.

"The Legislature subsequently put control of smallpox under the direction of the State Department of Public Health and provided that 'no rule or regulation on the subject of vaccination shall be adopted by school or local health authorities,'" Meyer citing the California Education Code.

The state added 10 additional vaccine requirements between 1961 and 2010 to protect students against measles, mumps and other diseases, rejecting a personal beliefs exemption.

But the Legislature maintained a personal beliefs exception for any new vaccine requirements, the judge wrote.

"The statutory scheme leaves no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates, including those like the (San Diego school district's) Roadmap that lack a personal belief exemption and therefore are even stricter than what the DPH could itself impose upon learned consideration," Meyer added.

The judge's tentative order does not maintain that children in school cannot be required to be vaccinated for COVID-19, only that the state is the only government entity that can require it. Let Them Choose v. San Diego Unified School District, 37-2021-43172-CU-WM-CTL (San Diego Co. Sup. Ct filed Oct. 12, 2021).

Meyer wrote the district's vaccination policy "appears to be necessary and rational, and the district's desire to protect its students from COVID-19 is commendable. Unfortunately, the field of school vaccine mandates has been fully occupied by the state, and the Roadmap directly conflicts with state law."

The judge's tentative order would grant petitioners, Let Them Choose, its motion for a writ of mandate against the district.

Sharon McKeeman, the founder of Let Them Choose, hailed the ruling.

"This decision that school districts do not have authority to require the COVID-19 vaccine echoes statewide, and it shows that parents coming together in a grassroots movement to uphold our children's rights is powerful and effective," she wrote in a statement.

The parents' group, which also opposes mandated masks, was represented by Aannestad Andelin & Corn LLP.