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Federal appeals court lifts block on San Diego Unified School District’s COVID vaccination mandate

Teachers, parents and students stage a sit-out in San Diego in October to protest vaccination mandates.
(Jarrod Valliere / The San Diego Union-Tribune)

Opposing attorney vows to seek ‘emergency relief’ from the U.S. Supreme Court.

The U.S. 9th Circuit Court of Appeals voted this weekend to lift a block it had placed on the San Diego Unified School District’s student COVID-19 vaccination mandate.

The Dec. 4 decision, reached by a 2-1 vote, lifted a temporary injunction the court had placed on the mandate Nov. 28. Judges had said the injunction would continue as long as the district continued to allow vaccine deferrals for pregnant students. But now that San Diego Unified has removed that condition, the block has been removed as well.

The court’s decision is the latest development in a legal battle surrounding a mandate that would limit in-person learning and on-campus activities among SDUSD students 16 and older to those who are fully vaccinated. The restriction would take effect Monday, Jan. 24, and students and staff must be fully vaccinated by Monday, Dec. 20.

More than seven of every 10 San Diego Unified students 16 or older are already fully vaccinated.

“We take seriously our responsibility to create a safe environment for our students and staff,” San Diego Unified board President Richard Barrera said in a statement. “This latest decision recognizes that we have both the responsibility to protect students and the authority to do so by implementing a vaccine mandate, which is really our best hope as a country to get this deadly disease under control.”

But critics of the mandate say it’s an infringement on personal liberty.

A 16-year-old junior at Scripps Ranch High School sued the district in October, alleging that the mandate violates her religious beliefs. She stated that as a Christian, she is unwilling to take vaccines developed using aborted fetal cells.

COVID-19 vaccines do not contain material from aborted fetal cells or tissue. But some of the cell lines used to test vaccines in the lab include cells derived from aborted fetuses. That’s been a thorny issue for some, though the Catholic Church and Southern Baptist Convention have come out in favor of the vaccines, citing the shots’ protective benefits against severe COVID-19.

The plaintiff objected to the district allowing for some exemptions to the vaccination mandate but not religious ones. And the appeals court initially voted Nov. 28 to temporarily halt the mandate as long as the district was allowing pregnant students to defer vaccination.

After the court’s Dec. 4 decision, the plaintiff’s attorney, Paul Jonna, called San Diego Unified’s mandate unconstitutional and said in a statement that “we will seek emergency relief from the U.S. Supreme Court as soon as possible.”

He cited Judge Sandra Ikuta’s dissenting opinion that because the mandate allows in-person attendance by students unvaccinated for medical reasons but does not allow exemptions for religious reasons, despite both posing “similar risks,” “we must therefore apply strict scrutiny to the mandate.”

Jonna said “we’re confident that a majority of [Supreme Court] justices will conclude, like Judge Ikuta, that SDUSD’s vaccine mandate violates the First Amendment and must be enjoined unless SDUSD offers students religious exemptions.”

The district has said it 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.

The district announced Nov. 29 that it had removed the pregnancy deferral. That leaves a limited number of exemptions, such as doctor-certified medical conditions that would make vaccination unsafe. There is still no exemption for personal beliefs, but the court ruled there wasn’t clear evidence that the mandate had been created to target anyone’s beliefs.

“Appellants have not shown a likelihood of establishing that the mandate was implemented with the aim of suppressing religious belief rather than protecting the health and safety of students, staff and the community,” the majority opinion stated.

The decision came two days after a San Diego County Superior Court judge denied a request to immediately halt the district’s mandate in connection with a lawsuit filed by an arm of Let Them Breathe, a statewide group based in North County. Judge John Meyer said he would instead take up the matter Dec. 20. ◆