District Court Denies Preliminary Injunction In SB 277 Lawsuit, Finds That Students With Individualized Education Programs Are Exempt From School Vaccination Requirements.

On August 26, 2016, the US District Court for the Southern District of California denied Plaintiffs’ motion for preliminary injunction which sought to prevent California’s updated school vaccination requirements—Senate Bill 277—from removing the “personal belief exemption”  (PBE) beginning in the 2016-17 academic year. (Whitlow, et al., v. Cal. Dep’t. of Education, Case no. 16cv1715 (August 28, 2016).)

District Court Finds Plaintiffs Unlikely To Show SB 277 Is Unconstitutional.

Under SB 277, parents may no longer exempt their children from the State’s vaccination requirements based only on the parent’s personal beliefs.  The Plaintiffs alleged SB 277 “violates their federal and state constitutional rights and federal and state statutory law.”  (Order denying Plaintiffs’ motion for preliminary injunction, Whitlow, Case no. 16cv1715 at p. 1 (“Order”).)  The District Court disagreed and found Plaintiffs “have failed to show a likelihood of success” on their unconstitutionality arguments.  (Order, at pp. 8-9, 12-13.)  The District Court further found that “for more than 100 years, the United States Supreme Court has upheld the right of the States to enact and enforce laws requiring citizens to be vaccinated;” that “the Supreme Court has reiterated that fundamental rights under the First Amendment to the United States Constitution do not overcome the State’s interest in protecting a child’s health;” and “the State is well within its powers to condition school enrollment on vaccination.”  (Order, at pp. 3, 5, 13.)

Notably, instead of appealing the District Court’s ruling to the 9th Circuit, Plaintiffs instead withdrew their lawsuit without prejudice, presumably to preserve their ability to file another challenge at a later time.  Because this ruling was only on Plaintiffs’ motion for preliminary injunction and not a final merits determination, and not an appellate court opinion, the ruling is not binding authority.  However, the ruling does carry significant persuasive effect and would be unlikely to change should Plaintiffs refile their lawsuit.

Although No New PBEs Will Be Granted, Several Exemption Categories Still Exist.

The District Court explained that SB 277 leaves in place several important exemptions to the vaccination requirements.  First, students may still obtain medical exemptions from their doctors.  Second, students in home-based private school or independent study (without classroom-based instruction) need not be vaccinated.  Third, students with valid PBEs as of January 1, 2016 will remain exempted until they enter Kindergarten or 7th grade, after which no further PBEs will be granted.

Students With IEPs Are Also Exempted From The Vaccination Requirements.

Finally, and most importantly for schools considering special education issues, is that students who qualify for an IEP under the Individuals with Disabilities in Education Act (IDEA) are affirmatively exempted from the vaccination requirements under Cal. Health and Safety Code section 120335(h).  (Order, at pp. 3, 11-12.)  Section 120335(h) states that “this section does not prohibit a pupil who qualifies for an individualized education program, … from accessing any special education and related services required by his or her individualized education program.”  As such, students with an IEP cannot be excluded from school based on their vaccination status.  However, the District Court stated that such protection does not extend to students covered only under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973. (Order, at pp. 11-13.)

Final Takeaways

  • Students receiving special education services under an IEP may not be excluded from school based on their vaccination status.
  • This exemption does not extend to students with only 504 Plans or ADA accommodations .
  • Medical exemptions may still be obtained.
  • Previously granted Personal Belief Exemptions remain valid until the student enters Kindergarten or 7th Grade.
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