The Volokh Conspiracy
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From Doe v. San Diego Unified School Dist., decided on an emergency basis Sunday; the majority opinion is written by Judge Marsha Berzon and joined by Judge Mark Bennett:
Appellants' opposed emergency motion for an injunction pending appeal is granted in part. The injunction shall be in effect only while a "per se" deferral of vaccination is available to pregnant students under San Diego Unified School District's COVID-19 vaccination mandate. The injunction shall terminate upon removal of the "per se" deferral option for pregnant students.
The panel is issuing this order today in an abundance of caution because the plaintiffs have represented, without contradiction from the defendants, that tomorrow, November 29, 2021, is the last date on which students sixteen and over must obtain their first vaccination dose to avoid restriction to independent study beginning in January 2022. Written dispositions explaining the panel members' conclusions will follow shortly.
Judge Sandra Ikuta concurred in part and dissented in part:
I concur in granting Doe's emergency motion for an injunction pending appeal. But I would keep the injunction in effect until the San Diego Unified School District ceases to treat any students (not just pregnant students) seeking relief from the vaccination mandate for secular reasons more favorably than students seeking relief for religious reasons, because any unvaccinated student attending in-person classes poses the same risk to the school district's interest in ensuring a safe school environment. See Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (holding that strict scrutiny applies when government regulations "treat any comparable secular activity more favorably than religious exercise," and that "[c]omparability is concerned with the risks various activities pose" to the government's interest) (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 6768 (2020)).