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California Court of Appeal Upholds School Vaccination Requirement

Jul 12, 2018 | Legal Developments and News

The California Court of Appeal for the Second Appellate District affirms dismissal of a lawsuit challenging the constitutionality of SB 277.

In a recently released published opinion, Brown et al. v. Smith, (2018 S.O.S. 3357), the California Court of Appeal from the Second Appellate District upheld SB 277’s removal of the religious or personal belief exemption for vaccinations for students attending school in California. Vaccination has long been the rule in California for all students, unless an individual met requirements for a legal exemption.

The appellate court rejected the plaintiffs’ arguments that SB 277 violates their freedom of religion, or their fundamental interest in attending school, or their right to equal protection, or that SB 277 is unconstitutionally vague. Notably, the appellate court agreed with the federal district court’s analysis in Whitlow v. Cal. Dept. of Education (S.D.Cal. 2016) 203 F.Supp.3d 1079 [denying motion to preliminarily enjoin the state from enforcing Sen. Bill No. 277] because “society has a compelling interest in fighting the spread of contagious diseases through mandatory vaccination of school-aged children” (Id. at pp. 1089-1090) and “[t]he right of education, fundamental as it may be, is no more sacred than any of the other fundamental rights that have readily given way to a State’s interest in protecting the health and safety of its citizens, and particularly, school children,” and “removal of the [personal beliefs exemption] is necessary or narrowly drawn to serve the compelling objective of SB 277.” (Id. at p. 1091.)

SB 277 and the Individuals with Disabilities Education Act

Separately, SB 277 did not exempt students with individualized education programs (“IEPs”) from vaccination requirements, but instead requires “access to special education and related services” for those students eligible for special education under the Individuals with Disabilities Education Act (“IDEA”).

How this will be implemented and judicially interpreted in the future is unclear. The Office of Administrative Hearings (“OAH”) has granted at least one motion for stay put related to the placement of a student eligible for special education who had not been vaccinated.  In that particular case, an unvaccinated student with a personal belief exemption had been attending a comprehensive middle school, placed in the general education setting, through the end of the 2016-2017 school year. When the personal belief exemption was no longer available beginning with the 2017-2018 school year, the student did not provide a medical exemption, and the district offered the student home instruction. Parents filed a motion for stay put to have the student returned to his previous comprehensive middle school placement. The administrative law judge (ALJ) cited an out-of-context, non-legally binding statement from Whitlow that indicated children covered by the IDEA “are exempt from vaccination” and also cited to the legislative history of SB 277 to find that subdivision (h) of Health and Safety section 120335 “in effect creates an exemption from vaccination” for special education students. The ALJ ordered the district to return the student to his previous placement with all services specified in his IEP. This case did not go to hearing, and this order has not been cited in any other decisions or orders.

We anticipate that there will be additional case law addressing SB 277 implementation, specifically with respect to the IDEA, that will arise in the near future. We will continue to track legal developments in this area, and will keep you updated as they occur. If you have any questions, please contact a DWK attorney.


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