The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
San Diego Schools Need Not Allow Religious Exemptions from Vaccination Mandate
The Ninth Circuit held a week ago that the school district had to give religious exemptions so long as it categorically exempted pregnant students; now that the district has repealed the pregnancy exemption, no religious exemptions are required.
From Doe v. S.D. Unif. School Dist., decided yesterday by Judges Marsha Berzon and Mark Bennett (for the post about last week's decision, see here):
Appellants, a 16-year-old high school student and her parents, filed an emergency motion for an injunction pending appeal, seeking to enjoin San Diego Unified School District … from requiring compliance with a student vaccination mandate. On November 28, 2021, we granted Appellants' motion in part. We ordered that an injunction shall be in effect only while a "per se" deferral of vaccination is available to pregnant students under SDUSD's student vaccination mandate, and that the injunction shall terminate upon removal of the "per se" deferral option for pregnant students.
On November 29, 2021, appellees filed a letter and supporting declaration from Interim Superintendent Lamont Jackson explaining that the deferral option for pregnant students has been removed from the mandate. Appellants' responsive letter does not dispute that the pregnancy deferral option has been validly removed.
Given the removal of the "per se" deferral option for pregnant students, the injunction issued in the November 28, 2021 order has terminated under its own terms. This order provides our reasoning for why an injunction pending appeal is not warranted as to the now-modified student vaccination mandate….
SDUSD's student vaccination mandate provides that students who are 16 years or older as of November 1, 2021, and who are not fully vaccinated against COVID-19, will not be permitted to participate after January 24, 2021 in on-site education or extracurricular activities without a qualified exemption or conditional enrollment.
SDUSD allows for medical exemptions to the mandate as well as conditional enrollment in on-site education for 30 days for certain categories of newly enrolling students (students who are homeless, in "migrant" status, in foster care, or in military families). {These categories were drawn from California state law provisions applicable to other immunizations required for students.} The mandate also provides certain procedural protections and accommodations to students with Individualized Education Programs (IEPs), to comply with statutory "stay put" requirements. Previously, the mandate provided for a "per se" pregnancy deferral, under which a pregnant student could defer vaccination until after pregnancy; as noted, the "per se" pregnancy deferral no longer exists. SDUSD does not allow for an exemption to the mandate on the basis of religious belief.
Appellants allege that the student vaccination mandate violates the Free Exercise Clause, both facially and as applied, by failing to exempt Jill Doe, the high school student plaintiff, in light of a religious belief that prohibits her from taking any of the available vaccines, and by treating "comparable secular activity more favorably than religious exercise" through the granting of medical exemptions, conditional enrollments for certain categories of students, and procedural protections for students with IEPs. See Tandon v. Newsom (2021).
{The complaint and emergency motion explain that Jill Doe's reason for abstaining from vaccination is that "[a]ll three of the[ ] vaccines have been manufactured or tested using material derived from stem cell lines from aborted fetuses." The one vaccine approved for use in 16-year-olds is the Pfizer-BioNTech vaccine. That vaccine is not manufactured using stem cells. Third parties tested the vaccine using fetal cell lines, which are laboratory-grown cells originally derived from two fetuses aborted in 1973 and 1985. Jill Doe explains that her Christian faith prevents her from using any vaccines that depend on use of fetal cell lines at any stage of their development. We may not and do not question the legitimacy of Jill Doe's religious beliefs regarding COVID-19 vaccinations.}
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….
[T]he plaintiffs have not raised a serious question as to whether the mandate is generally applicable. The only currently enrolled students who are fully exempt from the requirement to be vaccinated for on-site learning and extracurricular activities are students who qualify for a medical exemption. The medical exemption is limited to students with contraindications or precautions recognized by the Centers for Disease Control and Prevention or the vaccine manufacturer, and the request must be certified by a physician. Limitation of the medical exemption in this way serves the primary interest for imposing the mandate—protecting student "health and safety"—and so does not undermine the District's interests as a religious exemption would. See Fulton v. City of Philadelphia (2021) ("A law … lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way.").
Additionally, although the record does not disclose the number of students who have sought or are likely to seek a medical exemption, if that number is very small and the number of students likely to seek a religious exemption is large, then the medical exemption would not qualify as "comparable" to the religious exemption in terms of the "risk" each exemption poses to the government's asserted interests. Moreover, some of the medical exemptions are likely to be "limited in duration," unlike a religious exemption. SDUSD's medical exemption form expressly states that "[n]o medical exception is permanent" and that any such exemption is valid only until the earliest date out of a list of dates, such as "[t]he end date specified by the physician" who fills out the exemption form. Students with health issues justifying a longer-term medical exemption will need to reapply for an exemption each year. Accordingly, although "it may be feasible for [SDUSD] to manage the COVID-19 risks posed by a small set of objectively defined and largely time-limited medical exemptions," "it could pose a significant barrier to effective disease prevention to permit a much greater number of permanent religious exemptions."
The 30-day "conditional enrollment" period for the specified categories of newly enrolling students also does not raise a serious question concerning the mandate's general applicability. As was the case with currently enrolled students like Jill Doe, 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. And, in line with the above analysis, the conditional enrollment period is both of temporary duration and of limited scope, and so does not undermine SDUSD's asserted interests in student health and safety the way a religious exemption would….
Moreover, in light of the rigidity of the medical exemption and the limited time period for conditional enrollees to obtain records or vaccine doses—which does not appear to be subject to discretionary extension—there is no "mechanism for 'individualized exemptions'" in this case….
[T]his case is meaningfully distinct from the recent cases involving COVID-19 restrictions on worship in churches and private homes. 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. Appellants argue that the student vaccination mandate nevertheless causes irreparable injury because it "burdens" their religion by making an "important benefit" contingent upon conduct that violates their faith. But the record is devoid of evidence indicating that SDUSD's remote-learning "alternative education program" is inferior to in-person education.
And although Jill Doe states that, as she is a "preeminent athlete," the mandate would cause her irreparable injury by "dooming" her otherwise promising chances of receiving a sports scholarship, she did not submit any details to support that claim. She also elected to proceed anonymously in this case—including remaining anonymous to the District and its lawyers—thereby preventing SDUSD from contesting the truth of that statement. Critical facts going to the "irreparable injury" inquiry are therefore unknowable in this case. Appellants thus have probably not carried their burden of showing that they are likely to suffer irreparable harm in the absence of preliminary relief.
Last, for completeness, we note that the public interest weighs strongly in favor of denying Appellants' motion. The COVID-19 pandemic has claimed the lives of over three quarters of a million Americans. 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. And as the Supreme Court has long recognized, "the right to practice religion freely" is not "beyond regulation in the public interest," including regulation aimed at reducing the risk of "expos[ing] the community or the child to communicable disease or the latter to ill health or death." The public interest therefore favors SDUSD's mandate….
Judge Sandra Ikuta dissented, arguing, among other things, that:
[T]he School District's asserted interest justifying the vaccine mandate is to "ensure the highest-quality instruction in the safest environment possible for all students and employees" by preventing the transmission and spread of COVID-19. The two activities that Doe claims are comparable are in-person attendance by students who are unvaccinated for religious reasons and in-person attendance by students who are unvaccinated for medical or logistical reasons. These religious and secular activities pose identical risks to the government's asserted interest in ensuring the "safest environment possible for all students and employees," because both result in the presence of unvaccinated students in the classroom, who could spread COVID-19 to other students and employees.
But the School District's mandate treats secular and religious activity differently. 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. 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.
In concluding otherwise, the majority fails to follow the legal framework for determining whether a law is generally applicable. First, the majority argues that the medical exemption does not undercut the mandate's general applicability because it furthers the School District's interest in "protecting student health and safety" by protecting the health of the particular student claiming the medical exemption. This argument incorrectly focuses on the reasons for the exemption rather than the asserted interest that justifies the mandate.
No doubt the School District has a good reason for providing an exemption for medically vulnerable students in order to protect their health, although the School District could further this interest by allowing such students to participate in the remote-learning option. But "the reasons why" the School District allows in-person attendance for some unvaccinated students are irrelevant. Instead, "[c]omparability is concerned with the risks" in-person attendance by an unvaccinated student poses to the "asserted government interest." Here, the School District's asserted interest for imposing the vaccine mandate in the first place is to ensure "the safest environment possible for all students and employees" by preventing the transmission and spread of COVID-19. Allowing students who are unvaccinated for medical reasons to attend school in person undermines this interest. Thus, the majority errs at the first step in the framework by focusing on the School District's reasons for offering an exemption, rather than the interest that the School District actually asserts to justify the mandate.
Second, the majority claims that the risks posed by in-person attendance of students unvaccinated for medical reasons are not comparable to the risks posed by students unvaccinated for religious reasons because far fewer students will seek medical exemptions than religious exemptions. This rationale is entirely speculative. As the majority acknowledges, "the record does not disclose the number of students who have sought or are likely to seek a medical exemption." Nor is there any evidence in the record about how many students would seek religious exemptions. A court may not base its rulings on such free-floating guesswork. Thus, there is no basis for the majority's claim that the School District will be flooded with requests for religious exemptions if they were offered.
{This claim is undercut by testimony from the School District's expert, who describes the medical exemption as having a potentially broad scope: "If a student's own physician confirms, through the same process used for other vaccinations, that an underlying medical problem makes the vaccine unsafe for their patient, and that physician is made available to discuss this issue with the District's physician, the student is eligible for a medical exemption." This characterization of the mandate not only casts doubt on the majority's view that the exemption covers only a small number of students, but also suggests that the medical exemption may be an example of the "individualized exemptions" that render government regulations not generally applicable.}
The majority further errs in arguing that because the mandate gives students claiming a medical or logistical exemption only temporary relief, the risk posed by their in-person attendance is not comparable to the risk posed by the in-person attendance of students claiming a religious exemption. But the majority identifies no authority suggesting that the School District can treat secular activity more favorably than religious activity simply because the disparate treatment is only temporary. Even a temporary deferral would provide a religious student with some relief.
{[And t]here is no basis for characterizing the medical exemption as temporary. According to the School District's medical exemption form (as opposed to the testimony of its expert), students qualify for a medical exemption only if they have a "contraindication" or "precaution" recognized by the CDC or the vaccine manufacturer. The only such contraindication is a severe allergic reaction or known diagnosed allergy to the vaccine or its ingredients, and the only precaution is a history of immediate allergic reaction to other vaccines or injectable therapies.}
Finally, the majority argues that conditional enrollment deferrals are not comparable to a religious exemption because Doe had the same amount of time to comply with the mandate that new enrollees will have. This again confuses the reasons for the exemption with the asserted interest that justifies the mandate. While the School District may have a good reason to give new enrollees who meet certain criteria thirty days to comply with the mandate, the in-person attendance of such unvaccinated conditional enrollees poses an identical risk to the School District's asserted interest in preventing the spread of COVID-19 as the in-person attendance of unvaccinated students seeking a religious exemption. Therefore, the mandate is not generally applicable. …
Because the School District's mandate is not generally applicable, strict scrutiny applies. Strict scrutiny requires that the mandate be narrowly tailored to serve a compelling interest. The School District's mandate does not satisfy this standard. "Stemming the spread of COVID–19 is unquestionably a compelling interest." But if "the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied." "Otherwise, precautions that suffice for other activities suffice for religious exercise too."
Here, the School District has not met its burden of showing that the "non-pharmaceutical interventions (e.g., face coverings, regular asymptomatic testing)" that exempted students must follow do not "suffice for religious exercise too." Additionally, the School District already accommodates teachers and staff who remain unvaccinated due to personal beliefs by allowing them access to the campus, which shows that the School District has determined that it can satisfy its safety interests while still allowing persons unvaccinated on religious grounds to access campus. Accordingly, the vaccine mandate is stricter than necessary to meet the School District's asserted goals, and therefore is not narrowly tailored. Finally, California's proposed mandate will allow a personal beliefs exemption, which further suggests that the School District's mandate is stricter than necessary.
{The majority suggests that the School District's remote-learning option is not inferior to in-person education. But if that were true, then all unvaccinated students should participate in remote learning. Otherwise, the School District's mandate would be severely underinclusive.} …
