SAN DIEGO — The 9th Circuit Court of Appeals on Sunday temporarily blocked San Diego Unified's student COVID-19 vaccine mandate from going into effect — one day before the school district's deadline for students to get their first dose.
The court sided with a 16-year-old, junior at Scripps Ranch High School who had sued last month saying San Diego Unified's vaccine mandate violated her religious beliefs.
The San Diego Unified School Board voted in late September to require that staff and students age 16 and up be fully vaccinated against COVID-19 by Dec. 20, meaning they have to get their first dose by Monday, Nov. 29, in order to continue to attend school in person. Those who don't comply would have to attend school remotely.
The student, identified as Jill Doe in the complaint, said her Christian beliefs prevent her from taking the COVID-19 vaccine because the vaccines were tested using historical stem cell lines derived from abortions during the 1970s and 80s.
COVID-19 vaccines do not contain any aborted fetal cells. These stem cell lines are regularly used to in the testing and development of vaccines and common medications such as Tylenol, Sudafed and Pepto Bismol.
The 9th Circuit's decision Sunday came 11 days after a federal judge in San Diego denied the student's request for a restraining order against the district's mandate.
The 9th Circuit granted the student plaintiff's request for an emergency restraining order against the district's mandate, pending appeal.
The court blocked the mandate only as long as San Diego Unified continues to allow pregnant students to postpone getting the vaccine. If San Diego Unified stops offering deferrals to pregnant students, the court's block of the mandate will end.
Attorneys for the plaintiff argued that the mandate discriminates against students like her who object to it on religious grounds, because the district is granting vaccine deferrals and exemptions to certain students for some non-religious reasons, but not for religious reasons.
For example, students are allowed to seek medical exemptions, and certain students don't have to get vaccinated right away, such as foster youth, homeless students, migrant students, students from military families and pregnant students.
Paul Jonna, an attorney representing the Scripps Ranch student, said in a statement that allowing non-religious exemptions but outlawing religious ones is discriminatory.
"SDUSD cannot treat students better if they seek exemption from vaccination for secular as opposed to religious reasons," he said. "The COVID regime of secular favorites but religious outcasts must end."
School Board President Richard Barrera has said the district is not offering religious or personal belief exemptions because the district does not want families to abuse such exemptions as a loophole to the mandate. However, San Diego Unified is granting religious exemptions to its staff because it is required to do so by federal law.
Meanwhile, Gov. Gavin Newsom has said he will allow personal belief exemptions for a statewide COVID-19 vaccine mandate, but some state legislators have said they disagree. Such exemptions already are outlawed for the 10 other state-required childhood vaccinations.
The appeals court's decision provides temporary relief to unvaccinated students who would have been forced to forego in-person learning starting in January 2022.
Under San Diego Unified's mandate, students 16 and up who are not fully vaccinated by Dec. 20 would lose their chance to attend school in-person and to participate in extracurricular activities. They would be forced to learn remotely, through a program such as the district's virtual school or through independent study.
As of the end of October, three-quarters of San Diego Unified students 16 and up had received at least one dose of the vaccine, district officials said in mid-November. There are roughly 14,000 students age 16 and up in San Diego Unified.
About 82% of the district's 14,000 staff have had at least one dose of the vaccine by mid-November.
Sunday's decision was made by a panel of three 9th Circuit judges: Marsha Berzon, Mark Bennett, and Sandra Ikuta, who issued a partial dissent. Their decision is pending appeal.
In her dissent, Ikuta said she does not believe the vaccine mandate should be halted only while pregnant students are allowed exceptions. She suggested it is unfair for San Diego Unified to give exceptions to any student group, not just pregnant students, for secular reasons while denying them to students who want them for religious reasons.
"Any unvaccinated student attending in-person classes poses the same risk to the school district's interest in ensuring a safe school environment," Ikuta wrote.
Attorneys for the plaintiff student said they are "very pleased" with the court's decision.
"Although the case is still in its early stages, this is a significant victory," Jonna said.
Jonna said San Diego Unified should change its vaccine mandate policy to allow religious exemptions for students.
"Otherwise, we are confident that we will fully vindicate our clients' rights either in the 9th Circuit or in the U.S. Supreme Court, if necessary," Jonna said.
San Diego Unified officials could not be immediately reached for comment Sunday.
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