West Virginia’s charter schools are officially arguing in favor of religious exemptions to mandatory school vaccination requirements, in contrast to the position taken by the state’s more traditional public school system.
The West Virginia Professional Charter Schools Board entered a friend of the court brief this past week in a state Supreme Court review of conflict between the state’s religious freedoms law and its mandatory school vaccination law.
As part of their argument, the charter schools note that they’ve been allowing religious exemptions to mandatory vaccinations since August but less than 1% — 36 of the 4,274 students enrolled in charter schools — pursued the exemptions.
Charter schools in the state operate as part of the public school system, but they are typically approved and overseen by the professional charter school board.
Charter schools receive financial support from the state’s public education system and are allowed greater operational latitude in exchange for the possibility of losing their right to operate if they fail.
“Public charter schools are designed to expand meaningful educational choice within the public school system,” wrote attorneys for the board in a statement of why their position is relevant to the case.
“That choice necessarily includes the ability of parents to select educational environments consistent with their values, including their sincerely held religious beliefs.”
This is part of the positioning for a state Supreme Court review focusing on whether West Virginia’s religious freedoms law passed in 2023 directly affects the longstanding mandatory vaccinations law for the public school system.
The circuit judge in Raleigh County, Michael Froble, late last year ruled in favor of families who want the public school system to accept religious exemptions processed by the state health department.
The Supreme Court set deadlines for the parties to the case and groups with an interest to file briefs outlining their positions, but justices have not yet set a date for oral arguments.
“By conditioning access to public education on the abandonment of sincerely held religious beliefs, Petitioners convert educational access from a right into a conditional privilege, forcing families to choose between faith and participation in the public school system,” wrote lawyers for the charter schools system.
“This result is incompatible with the Legislature’s express commitment to expanding educational opportunities and with longstanding constitutional protections recognizing parents’ authority to direct the upbringing and education of their children.”
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 last year linking the Equal Protection for Religion Act with the vaccine law, which has no explicit religious exceptions.
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.
The Morrisey administration directed families to apply for exemptions through the state health department, but West Virginia school systems did not accept them.
In contrast, last August, the charter schools board voted to honor religious exemptions consistent with the Equal Protection for Religion Act and the Governor’s executive order “until judicial resolution.”
The state Board of Education on August 15 sent a letter maintaining that public charter schools are subject to the same immunization requirements as non-charter public schools and urged compliance with a directive requiring enforcement, but the professional charter schools board declined to follow the state board’s guidance.
By the start of this April, 36 of the 4,274 students enrolled in West Virginia public charter schools had been granted religious exemptions, representing about 0.8 percent of the total charter school student population, according to the latest court filing.
The charter schools reported that they implemented consistent sanitation of high-touch surfaces; clear and visible hand
hygiene expectations; student education on preventative practices and adherence to guidance from county health departments and the Centers for Disease Control.
And they maintained exclusion protocols for symptomatic students and staff; ongoing health monitoring; and regular communication with families regarding illness prevention and response.
“During the period in which public charter schools recognized religious exemptions, no outbreaks of vaccine-preventable illnesses were reported to the PCSB,” said professional charter schools board executive director Barry Holstein in an affidavit.
The professional charter schools board approved submission of the brief during a meeting earlier this month. Charter schools board member Latonia Page expressed caution about how broad the brief is. She had thought the filing would focus on religious freedom.
“I also am not convinced of the argument with regard to the extrapolation of the percentages of school children and charter schools outbreaks not being seen that that then will naturally extrapolate to the larger population in West Virginia,” Page told the other board members.