West Virginia Supreme Court justices are being asked to halt — sooner, rather than later — a lower court’s actions that could allow hundreds of students to go to public school without required vaccinations.
Raleigh Circuit Judge Michael Froble last month certified a class action that would affect similar cases in other counties. The case before Froble was originally brought by a couple of local families seeking to have religious exemptions recognized by public schools in the area.
More than 570 families around the state so far have sought and received religious exemptions to school vaccination laws, state health officials testified in a permanent injunction case currently before Froble. The class action could apply to all of them — plus any families who seek religious exemptions in the future.
Froble is expected to issue a final ruling on a permanent injunction in the case by the end of this month.
Lawyers for the state and Raleigh County school boards have challenged the basis for the class certification. A scheduling order issued by the Supreme Court on the class action issues directed lawyers for the original Raleigh County families to respond by Dec. 5. After that, justices would consider the matter.
Lawyers for the school boards have responded that the Dec. 5 deadline is too late. By then, they contend, Judge Froble might already have ordered a permanent injunction affecting students and school districts all over the state.
“If granted before this Court resolves whether the class was properly certified, several hundred unvaccinated children may be permitted in West Virginia’s public schools during a time when diseases like measles are proliferating in nearby states,” wrote the lawyers for the school boards.
They are asking the court to pause action in the Raleigh County court and examine the class certification issues on an expedited basis.
Lawyers representing families seeking religious exemptions filed a response late this week, maintaining the Supreme Court should deny the motion to stay and contending that the alleged circumstances are “mere hypotheticals at this stage.”
They summarized the motion as the school boards’ third request to stay the proceedings, which they characterized as “much ado about nothing.” The filing on behalf of parents seeking religious exemptions calls the school board position “Chicken Little.”
“The fact remains that Petitioners have pointed to no circumstances that warrant expedited relief in the form of a stay,” wrote the lawyers for the parents.
West Virginia’s compulsory vaccination law means 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.
Gov. Patrick Morrisey issued an executive order earlier this year linking the Equal Protection for Religion Act with the vaccine law, which has no explicit religious exceptions. The Morrisey administration directed families to apply for exemptions through the state health department, but West Virginia school systems have not accepted them.
The religious protections law gives citizens the right to sue if they believe their deeply held beliefs are being suppressed. But the law includes additional factors to weigh, including whether a compelling state interest exists to uphold a policy under the least restrictive means.
Froble late last week issued a revised version of the class certification. He defined it this way:
“All persons who have requested and received, or in the future request or receive during the period that Defendants ’maintain their no religious accommodations policy to the CVL, for themselves or for their children or for children for whom they are a parent or guardian, a religious accommodation to the CVL from the State Department of Health and who are not, or whose children are not, in compliance with the CVL.”