Lawyers for the state school board have asked the state Supreme Court to halt action in a lower court over whether West Virginia’s religious freedom act affects school vaccination policies.
The motion to stay that was filed on Tuesday seeks to halt circuit court proceedings in Raleigh County — specifically a permanent injunction hearing, while an appeal of a preliminary injunction is considered.
The attorneys for the state school board earlier filed a motion to stay directly to Raleigh Circuit Judge Michael Froble, who has scheduled a multi-day permanent injunction hearing to start Sept. 10.
Froble on Monday afternoon declined the stay and said the lawyers could petition the Supreme Court if they chose.
So that is what they have done a day later.
The lawyers argue that the lower court’s accelerated schedule and restriction on discovery are hurting their ability to adequately defend against claims by parents who seek exemptions from the state’s vaccination law based on religious reasons.
“The schedule the Circuit Court has entered is so truncated it sacrifices the Petitioners’ ability to litigate the issues presented in this matter on their merits, as supported by discovery,” wrote attorney Christopher Smith, a lawyer representing the state board of education.
The motion emphasizes that the appeal could resolve the underlying issues, making the lower court proceedings potentially unnecessary and inefficient.
“If the Vaccine Law is to be reviewed under strict scrutiny, that scrutiny should be conducted only after fulsome discovery and case development, not at breakneck speed without any meaningful opportunity to develop the case,” Smith wrote.
The case in Raleigh County was filed by parents who are asserting that the school system should honor religious exemptions to vaccination requirements. They have sued the state Board of Education along with the Raleigh County Board of Education.
The plaintiffs in the case sued under West Virginia’s “Equal Protection for Religion Act,” which went into law in 2023. Gov. Patrick Morrisey has expressed support for their lawsuit, and his administration filed a friend of the court brief saying so.
The policy 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.
The state Board of Education has said it would abide by the letter of the school vaccination law, instructing county boards to refrain from accepting religious exemptions approved by the state health department.
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.
Froble last month issued a preliminary injunction allowing three families to send their children to Raleigh County schools based on religious exemptions to the state vaccination law.
On Monday, in turning aside a motion to halt the September proceedings, the county judge said the Supreme Court would benefit from more development of the case.
“My experience with the Supreme Court is, I truly believe that this case appealing the preliminary injunction case is premature, and that the Supreme Court would benefit immensely from full development and moving on,” Froble said.
He continued, “And the court believes that most of these are a lot of legal issues that need to be resolved and need to be presented in a manner in which the Supreme Court can fully understand the issues and have the opportunity to rule on us.”