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Court temporarily halts San Diego Unified School District’s student COVID-19 vaccination mandate

Protesters rally against San Diego Unified's student vaccination mandate Sept. 28.
A crowd rallies Sept. 28 at the San Diego Unified School District headquarters to object to the district’s plan to make COVID-19 vaccinations mandatory for staff and students 16 and older.
(Nelvin C. Cepeda / The San Diego Union-Tribune)

Federal judges panel says the mandate will be paused, pending appeal, as long as the district continues offering vaccination deferrals to pregnant students.

The U.S. 9th Circuit Court of Appeals temporarily blocked the San Diego Unified School District’s student COVID-19 vaccination mandate from going into effect — one day before the district’s deadline for students to get their first dose.

The court Nov. 28 sided with a 16-year-old junior at Scripps Ranch High School who had sued in October, saying San Diego Unified’s vaccination mandate violated her religious beliefs.

A 16-year-old Scripps Ranch High junior is represented by a religious rights law firm .

The San Diego Unified board voted in late September to require that staff and students 16 and older be fully vaccinated against COVID by Dec. 20, meaning they had to get their first dose by Monday, Nov. 29, in order to continue to attend school in person. Those who don’t comply would have to attend remotely.

The Scripps Ranch student, identified only as Jill Doe in the complaint, said her Christian beliefs prevent her from taking the COVID vaccine because the vaccines were tested using historical stem cell lines derived from two abortions during the 1970s and ‘80s.

COVID vaccines do not contain any aborted fetal cells. These stem cell lines are regularly used in the testing and development of vaccines and common medications such as Tylenol, Sudafed and Pepto Bismol.

The 9th Circuit’s decision came 11 days after a federal judge in San Diego denied the student’s request for a restraining order against the district’s mandate.

The 9th Circuit granted the request for an emergency restraining order, pending appeal.

The court blocked the mandate only as long as San Diego Unified continues to allow pregnant students to postpone getting the vaccine. If San Diego Unified stops offering deferrals to pregnant students, the court’s block of the mandate will end.

Attorneys for the plaintiff argued that the mandate discriminates against students like her who object to it on religious grounds, because the district is granting vaccine deferrals and exemptions to certain students for some non-religious reasons, but not for religious reasons.

For example, students are allowed to seek medical exemptions, and certain students don’t have to get vaccinated right away, such as foster youths, homeless students, migrant students, students from military families and pregnant students.

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Paul Jonna, an attorney representing the Scripps Ranch student, said in a statement that allowing non-religious exemptions but outlawing religious ones is discriminatory.

“SDUSD cannot treat students better if they seek exemption from vaccination for secular as opposed to religious reasons,” Jonna said. “The COVID regime of secular favorites but religious outcasts must end.”

San Diego Unified officials could not immediately be reached for comment.

Board President Richard Barrera has said the district is not offering religious or personal belief exemptions for students because the district doesn’t want families to abuse such exemptions as a loophole to the mandate. However, San Diego Unified is granting religious exemptions to staff members because it is required to do so by federal law.

Meanwhile, Gov. Gavin Newsom has said he will allow personal belief exemptions for a statewide COVID vaccination mandate, but some state legislators have said they disagree. Such exemptions already are outlawed for the 10 other state-required childhood vaccinations.

The appeals court’s decision provides temporary relief to unvaccinated students who would have had to forgo in-person learning starting in January.

Under San Diego Unified’s mandate, students 16 and older who are not fully vaccinated by Monday, Dec. 20, would lose their chance to attend school in person and to participate in extracurricular activities. They would have to learn remotely through a program such as the district’s virtual school or through independent study.

As of the end of October, three-quarters of San Diego Unified students 16 and older had received at least one dose of the vaccine, district officials said in mid-November. The district has roughly 14,000 students in that age group.

About 82 percent of the district’s 14,000 staff members had at least one dose of the vaccine by mid-November.

The 9th Circuit decision was made by a panel of three judges: Marsha Berzon, Mark Bennett and Sandra Ikuta, who issued a partial dissent.

Ikuta said she does not believe the vaccination mandate should be halted only while pregnant students are allowed exceptions. She suggested it is unfair for San Diego Unified to give exceptions to any student group, not just pregnant students, for secular reasons while denying them to students who want them for religious reasons.

“Any unvaccinated student attending in-person classes poses the same risk to the school district’s interest in ensuring a safe school environment,” Ikuta wrote.

Attorneys for the plaintiff said they were “very pleased” with the court’s decision.

“Although the case is still in its early stages, this is a significant victory,” Jonna said.

Jonna said San Diego Unified should change its vaccination mandate policy to allow religious exemptions for students.

“Otherwise, we are confident that we will fully vindicate our client’s rights either in the 9th Circuit or in the U.S. Supreme Court, if necessary,” Jonna said. ◆