THE LAW IS ON YOUR SIDE!

November 24, 22

For two years, we have put our relationships, our reputations, our licenses, our careers, our credibility, sanity, loved ones, health, relationships, and LIVES on the line to stand up for what we know is True and Right and Just and to #protectthechildren and – can you believe it? – we were right!

HOW WERE WE RIGHT?

On Tuesday, November 22, the 4th Circuit Court of Appeal affirmed the judgment of San Diego Superior Court Judge Meyer’s December 20 ruling granting the Writ Petition of Let Them Choose and Let Them Breathe, which asked the Court to decide whether or not every single one of the 1,000+ school districts in the state of California had the legal authority to force students to receive a vaccine that is not currently required by California law in order to attend classes, participate in extra-curricular activities and receive services in-person. In December, Judge Meyer agreed with your FLTJ Warriors and their colleagues, Lee Andelin and Arie Spangler of Aannestead, Andelin & Corn, LLP – as well as millions of California advocates, analysts, representatives, and parents – that no, California school districts did not have this authority because this was something only the California Legislature and/or California Department of Public Health could do. In December Judge Meyer ruled:

SDUSD’s Roadmap attempts to impose an additional requirement in a field that the Legislature fully occupies through Health and Safety Code section 120325 et seq. The Legislature intended a statewide standard for school vaccination requirements and established a detailed scheme. The Legislature expressly contemplated the addition of new vaccine mandates without further legislative action, but assigned that responsibility to the DPH, taking into account recommendations from other relevant agencies and organizations and mandating that those new mandates include a personal belief exemption. 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 Roadmap that lack a personal belief exemption and therefore are even stricter than what the DPH could itself impose upon learned consideration.

SDUSD’s Roadmap also attempts to impose an additional requirement that directly conflicts with California Code of Regulations, title 17, section 6025 and the above referenced provisions of Education Code section 51745 et seq. SDUSD is required to admit students and allow their continued in-person attendance as long as they have received the 10 enumerated vaccines. SDUSD’s attempt to impose an additional vaccine mandate and force students (both new and current) who defy it into non-classroom-based independent study directly conflicts with state law.

The San Diego Unified School District immediately appealed Judge Meyer’s detailed and well-thought out ruling, using taxpayer dollars to continue to fight the Laws that were clearly against them and designed to protect children. Thankfully, the Court of Appeal rejected this pathetic maneuver, and affirmed Judge Meyer’s December 20 ruling, making the following significant findings:

School districts have no authority to dictate what vaccines a student must receive in order to attend school, participate in extracurricular activities, or receive services in-person. Only the California Legislature can do that:

The Legislature has covered the matter fully and completely, defining the who, what, when, and where of compulsory student vaccination:

  1. Who shall receive vaccines. (§ 120335, subd. (b).)
  2. Who may administer vaccines. (§§ 120375, subd. (d), 120380.)
  3. Sources for obtaining immunization. (§ 120345.)
  4. Proper documentation of vaccination. (§ 120355.)
  5. Exemption for community college students. (§ 120360.)
  6. The diseases for which immunization shall be documented. (§ 120335, subd. (b)(1)‒(11).)
  7. The role of county health officers in organizing and maintaining a program to make immunizations available. (§ 120350.)
  8. Who can add diseases to the list of required immunization. (§ 120335, subd. (b)(11).)
  9. Medical exemptions and appeal of revoked medical exemptions. (§§ 120370, 120372.05.)
  10. Conditional admission of students not fully vaccinated. (§ 120340.)
  11. Excluding unvaccinated students who are exposed to specific diseases. (§ 120370, subd. (b).)

Given the scope of the state statutes, school districts have no remaining discretion in these matters [deciding what vaccinations students must have in order to attend school in person].

….

If the District desired to condition school attendance on a vaccination for COVID-19, it should have urged DPH to follow the existing statutory procedure under section 120335, subdivision (b)(11) for adding new immunizations.

A school district’s legal obligation to keep kids safe on campus does not include forcibly vaccinating them [can you imagine?! (eye roll emoji)]:

[The District] invokes authority to require COVID-19 vaccination based on the Crime Victim’s Bill of Rights Act of 2008: Marsy’s Law (Cal. Const., art.I, § 28), under which students have an “inalienable right to attend campuses which are safe, secure and peaceful.” (Id., at § 28(f)(1).) But context is crucial here. The right to school safety encompassed within the Victim’s Bill of Rights “was intended to be, is aimed at, and is limited to, the single subject of safety from criminal behavior.” Brosnahan v. Brown (1982) 32 Cal.3d 236, 248.) [aka: guns, drugs, gangs, violence at school].

The District also relies on cases recognizing a “special relationship” between a school district and its students. According to the District, this relationship requires schools to use reasonable measures to protect students from foreseeable injury at the hands of third parties. (See Achay v. Huntington Beach Union High School Dist. (2022) 80 Cal.App.5th 528, 536; Ratcliff v. The Roman Catholic Archbishop of Los Angeles (2022) 79 Cal.App.5th 982, 1007.) Somewhat ironically given the context of this case, this special relationship is usually invoked by parties seeking to impose tort liability on a school district for personal injury. That was the situation in two of the cases the District cites, Rodriguez v. Inglewood Unified School District (1986) 186 Cal.App.3d 707, 711 (student stabbed by a nonstudent) and Walsh v. Tehachapi Unified School District (2014) 997 F. Supp.2d 1071, 1086 (death by suicide after bullying). We are not persuaded that the policies that have led to recognizing a tort duty on schools to prevent personal injury extend to compelled vaccination, which is essentially a medical decision.

A school district’s Education Code section 49403 (a) obligation (“shall”) to “cooperate with local health officers in preventing communicable diseases,” including using funds and personnel “to administer an immunizing agent to a pupil whose parent has consented,” does not include forcing children to receive a new vaccine against their will:

Education Code section 49403 does not allow a local school district to mandate new vaccinations; it merely permits the district to administer vaccinations—that is, to give injections—and only if the parent of the student agrees… even if [Education Code section 49403(a) was] interpreted as the District claims it should be, it would not authorize involuntary COVID-19 vaccination involved in this case.

The Hobbesian choice of gnawing off your arm or gnawing off your leg (being vaccinated against CV19, or enrolling in independent study) is not actually a choice, and a child’s right to attend school in California means the right to attend school in person, not remotely:

the District makes the strained argument that the Roadmap does not actually mandate students be vaccinated for COVID-19. Rather, it gives them the choice to either do so or be enrolled in independent study. Reminiscent of the school cafeteria offering a choice between Brussels sprouts or broccoli, the District asserts, “A choice between two options, even if both are not preferred, is still a choice, and the same choice cannot be called coerced in one instance and voluntary in the other instance.” We doubt that students and their parents perceive a real choice.

The plain meaning of “attendance” in this context is in-classroom learning. To the extent the Roadmap requires a student who is fully vaccinated within the meaning of Regulation 6025 to choose between a mandated COVID-19 vaccination and involuntary independent study, it is a choice the Legislature does not permit the District to compel.

WHY IS THIS SO SIGNIFICANT?

Because the District’s hubris and greed got us precedent that is binding on every school district and school in the state of California. The rulings we have each received in our superior court cases are for consideration in other superior court cases, but not binding, meaning the judge does not have to follow the sister-court’s logic or rulings. However, every California superior court judge has to follow a California Court of Appeals’s ruling. That means every judge in the state of California must recognize school districts’ inability to require new shots for in-person attendance or to force children into independent study, a MAJOR win for all of our lawsuits and any potential vaccine mandates (RSV, “flu”) to come.

SO WE WON? WE ARE SAFE NOW???

Any school mandate or “Roadmap” or policy that requires the CV19 vaccine is null and void… until the Legislature kicks back up January 3, 2023.

Recall that on October 20, the Advisory Committee on Immunization Practices unanimously voted to add CV19 to the list of routine immunizations recommended to children 6 months and up. The CDC has not voted to add the shot to its list of recommended vaccines; however, it is expected that it will. The CDC adding a shot to its list has no direct legal impact on you or your children; however, most states – red or blue – follow the CDC’s recommendations and will likely attempt to pass a law adding CV19 to its list of immunizations required for school attendance, in which case you will have a legal obligation to vaccinate your child against CV19, assuming you fall within the parameters of whatever your state’s law ultimately says, if and when passed.

In California, any shot added to the list of required immunizations by the California Department of Public Health must come with a personal beliefs exemption (“PBE”). (See Cal. Health and Safety Code, section 120338). This was a promise made by Senator Pan in 2015 when his Senate Bill 277 eliminated PBE’s for the 10 shots required by Health and Safety Code, section 120355.

Despite this, last year saw the same Senator Pan attempt to circumvent his very own promise by presenting Senate Bill 871, which would have been a free-standing law – not addition to the 120335 list – that forced all children – daycare and up – to receive the CV19 shot without the option of requesting a PBE. Thankfully, through focused, intentional, informed, consistent, respectful lobbying, we were able to defeat SB871.

HOWEVER:

  • A similar bill could be presented this legislative session [although we believe it unlikely].
  • Governor Newsom already directed the CDPH to start working on adding CV19 to the list of immunizations required under H&SC section 120335.
    • He postponed the addition until Fall 2023, but this perfectly aligns with the 2023 legislative calendar.

SO WHAT DO WE DO?

  • Stay engaged to lobby against CDPH adding CV19 to the shot.
  • Stay engaged to lobby against any “sister” bill that might attempt to take away the PBE’s for CV19.

I want to say “Stay engaged to ensure that CDPH adds the shot and gives back PBE’s”, however, this is the worst case scenario:

  • PBE’s will likely have to go through the CDPH digital CAIR system and approved by the CDPH. Will they be?
  • PBE’s will have to be uploaded to Assemblywoman Akilah Weber’s AB1797 digital immunization registry.
  • Once enough PBE’s flood these systems, they will use this figure to take the PBE’s back and “protect” Californians from “dangerous swaths” of children not vaccinated against CV19.
  • Even if you get your child a PBE, what will that look like for your child? What kind of punishments will they impose upon them – and you – for refusing to enroll your child in the clinical trials of a new drug and clinically-proven failed technology, and/or simply refusing to force them to take medicine they do not need?

We must stay engaged and prepared to take all action – in person at your representatives’ local offices, in person at the Capitol, remotely via One-Click, phone call, and email campaigns, sharing and activating everyone you know – to ensure that CV19 does not get added to the list.

REST. RECALIBRATE. RECHARGE. GIVE THANKS. And prepare to RISE.

WE ARE WINNING but the fight is not over.

GOOD NEWS IS you know exactly how to fight these battles, and we will continue to fight alongside you every step of the way.

CONGRATULATIONS, again, to Arie Spangler, Lee Andelin, Sharon McKeeman and the entire AAC, LTC, LTB teams and communities for their relentless fight for Truth and Justice.

SEE YOU SOON ON THE HILL!

Your FLTJ Warriors