Lawyers for the state Board of Education are asking the state Supreme Court to swiftly review a case about religious exemptions to school vaccination requirements.
This represents a possibility that the state’s highest appeals court could, in relatively short order, consider a policy dispute over the intersection of West Virginia’s school vaccination law and a separate law called the Equal Protection for Religion Act.
“The inconsistent views surrounding the interplay between the Vaccine Law and EPRA warrant quick review of this appeal — especially with school starting across the state and the potential for inconsistent decisions among the circuit courts,” wrote lawyers for the state school board.
Last month, a judge in Raleigh County granted a preliminary injunction for three families seeking religious exemptions to West Virginia public school vaccinations requirements.
The judge, Michael Froble, followed up by scheduling Sept. 10 and 11 for a more thorough permanent injunction hearing. Then, the lawyers for the state school board asked the judge to halt the case because of the intended appeal.
In addition to filing notice of appeal late Friday to the Supreme Court, the lawyers for the state board made a related filing to ask for expedited review.
This conflict in this case focuses on whether a broad religious freedom law passed in 2023 should apply to West Virginia’s specific school vaccination requirements.
It’s also a policy battle between Gov. Patrick Morrisey, who supports the religious exemptions, and the state Board of Education, which has advised local school systems to interpret the vaccination law just as it reads.
West Virginia students entering school for the first time must show proof of immunization against diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella, and hepatitis B unless properly medically exempted.
The “Equal Protection for Religion Act lays out the ability of individuals who believe their religious rights have been violated to seek a claim in court. The law says no state action may burden an individual’s exercise of religion unless it’s essential to furthering a compelling governmental interest and is the least restrictive means of achieving that.
Earlier this year, Morrisey’s administration issued a directive for families wanting to pursue a religious exemption to send basic information to VaccineExemption@wv.gov, which is monitored by the state Bureau for Public Health.
In turn, the state Board of Education voted to direct Superintendent Michele Blatt to issue guidance to the county school systems that they follow the current compulsory school vaccination law that does not permit religious exemptions for students.
Judge Froble, who heard two hours of arguments in Raleigh County, made an initial ruling that the compulsory vaccination law is not valid without a religious exemption. His ruling applied specifically to the three families — including four students — represented as plaintiffs in the case.
The lawyers for the state school board say a significant reason for swift review is that other local school systems face pressure to apply those guidelines to the way they handle vaccination requirements.
“Those boards of education now face new potential litigation from parents confused by the fact that Bureau for Public Health continues to issue religious exemptions,” wrote the lawyers for the state board.
The attorneys for the state Board of Education say their appeal would explore several questions about what happened in the lower court:
- The lawyers for the school board contend the circuit judge erroneously agreed to a legal interpretation “grafting an extratextual religious exemption” onto the vaccine law. They say the vaccine law, as written, contains no explicit religious exemption.
- They maintain the circuit court mistakenly determined that the vaccine law “substantially burdens” the families’ exercise of religion. “The right to free exercise of religion is a vital right, but itis not a boundless right.”
- They say a state law requiring 30 days notice before suing a state agency should have applied in this case. They argue that the exception for irreparable harm does not apply because the lawyers for the plaintiffs waited nearly a month to serve the state board, indicating a lack of urgency.
- And they say the circuit judge erred by setting a permanent injunction hearing less than two months after the state school board representatives were served. They maintain that denied the attorneys for the state board the opportunity to conduct discovery and develop their case, denying them due process.
The notice of appeal, in a boilerplate question about the disqualification of Supreme Court justices, indicates justices Tim Armstead and Charles Trump could be affected because they are former state lawmakers who considered the religious freedom policies.
“Petitioners are aware that Justices Armstead and Trump both were legislators when the Equal Protection for Religion Act or the analogous Religious Freedom Act were taken up in the West Virginia Legislature during their time serving in the Legislature,” the lawyers wrote.