A California state judge struck down San Diego Unified School District’s student COVID-19 vaccine mandate Monday, ruling that it was “inconsistent with state law.” This means that all SDUSD students can continue in-person instruction regardless of COVID-19 vaccine status.

Two lawsuits were filed challenging the mandate, one on behalf of a parent whose student was going to be forced to get the jab to continue in-person instruction, and one by the parent group “Let Them Breathe.” The lawsuits were joined for the purpose of hearing a petition for a writ of mandate, and oral arguments were held Monday morning. At 9 a.m. the judge issued a tentative ruling striking down the mandate, and after oral arguments were heard the judge ruled that the tentative ruling would become final.

Let Them Breathe + Let Them Choose won in court against San Diego Unified’s Student Covid Vaccine Mandate.

Judge struck down vaccine mandate as inconsistent with State law. Due to our ruling SDUSD can’t enforce vaccine mandate and all students can continue in-person education.

— LET THEM BREATHE (@letthem_breathe) December 20, 2021

In issuing the ruling, Judge John Meyer agreed with Petitioners’ contention that SDUSD’s “Vaccination Roadmap” is preempted by the California Education Code and directly conflicts with other state laws. Petitioners cited case law holding that “under the normal rules of preemption, a local ordinance that conflicts with state law is preempted by the state law and void. . . .Pursuant to preemption law, a conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.”

Under California Education Code Section 35160, SDUSD “may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”

In Monday’s ruling, the Court outlined the California Legislature’s efforts to regulate vaccination in schools, starting with the smallpox vaccine. The Vaccination Act was upheld by the California Supreme Court in 1890, and in that ruling, the power to mandate vaccination was given solely to the legislature. The Legislature delegated the authority to control the spread of smallpox to the Department of Public Health but specifically stated that “no rule or regulation on the subject of vaccination shall be adopted by school or local health authorities.”

The Court also noted that the ten vaccinations currently required for admission to California schools were placed on that list through legislative action “after careful consideration of the public health risk of these diseases, cost to the state health system, communicability, and rates of transmission” and that the requirements were supported by a statewide statutory and regulatory scheme which offered exemptions for medical reasons and personal beliefs – which, clearly, a district-by-district scheme does not offer.

California’s personal belief exemption was removed by the Legislature in 2015 after heated debate, and, as pro-mandate forces often state, that law also allows additional vaccines to be added to that list. Not surprisingly, that law doesn’t work exactly how pro-mandate advocates think it does. From the ruling:

“Recognizing the need for additional vaccine mandates that may arise in the future, the Legislature added a ‘number 11’ mandating that school children be vaccinated against ‘[any] other disease deemed appropriate by the [State Department of Public Health], taking into consideration the recommendations'” of immunization advisory committees of DHHS, the American Academy of Pediatrics, and the American Academy of Family Physicians.

The next part of the tentative ruling is critical:

“However, because the addition of a new mandate via this ‘catch all’ provision ‘disrupts the careful balancing of the various rights involved’ in the legislative process, the Legislature decided to maintain the ‘personal beliefs’ exemption for new vaccination requirements added by the DPH.”

California’s Department of Public Health has not added the COVID-19 vaccine to its list of required vaccines, and if it did, a personal belief exemption would have to be included by law. In addition, what constitutes an exemption for personal belief or medical reason is already laid out in the law and wouldn’t be the extremely narrow versions many localities are attempting to enforce. (One community college district only approves medical exemptions for those whose contraindications or precautions are recognized by the CDC or the vaccine manufacturer, for example.)

“In light of the above, it is clear that SDUSD’s Roadmap attempts to impose an additional requirement in a field that the Legislature fully occupies through Health and Safety Code section 120325 et seq. The Legislature intended a statewide standard for school vaccination requirements and established a detailed scheme. The Legislature expressly contemplated the addition of new vaccine mandates without further legislative action, but assigned that responsibility to the DPH, taking into account recommendations from other relevant agencies and organizations and mandating that those new mandates include a personal belief exemption. The statutory scheme leaves no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates, including those like the Roadmap that lack a personal belief exemption and therefore are even stricter than what the DPH could itself impose upon learned consideration.”

The judge stated that while he personally believed the district’s mandate was rational and necessary, that his job was to determine whether or not it was preempted by state law, and that is exactly what he determined.

“Unfortunately, the field of school vaccine mandates has been fully occupied by the State, and the Roadmap directly conflicts with state law. The addition of a COVID-19 vaccine mandate without a personal belief exemption must be imposed by the Legislature. Accordingly, this Court is compelled to GRANT the petitions for writ of mandate.”

Based on the discussion in the ruling, it would also seem that individual school districts don’t have the authority to enact any vaccine mandate, period, even with a personal belief exemption.

A few California school districts have backed off implementing their vaccine mandates due to the numbers of students who would be affected or due to threatened litigation; however, it is good to have an actual court ruling pointing out the fatal flaws in local vaccine mandates. Perhaps parents in other school districts will be able to use this ruling and the threat of losing a lawsuit to convince their district to abandon mandates.

And, could this line – “no rule or regulation on the subject of vaccination shall be adopted by school or local health authorities” – lead to successful challenges of local regulations/orders requiring people to show proof of vaccination before entering public places like restaurants, sporting events, public transportation, and more? Those are rules or regulations that were adopted by local health authorities, not through legislation.

As far as the statewide mandate Gavin Newsom announced on October 1, 2021, at this point it’s not in full effect. From the press release:

“In order to further protect students and staff and continue supporting a safe return to in-person instruction for all students, the Governor directed the California Department of Public Health (CDPH) to follow the procedures established by the Legislature to add the COVID-19 vaccine to other vaccinations required for in-person school attendance—such as measles, mumps, and rubella—pursuant to the Health and Safety Code. COVID-19 vaccine requirements will be phased-in by grade span, which will also promote smoother implementation.”

The press release doesn’t mention that this requirement would have to include a personal belief exemption, but Gov. Hair Gel did encourage districts like San Diego to take independent action in contradiction of state law:

“However, local health jurisdictions and local education agencies are encouraged to implement requirements ahead of a statewide requirement based on their local circumstances.”

Maybe they’ll petition Newsom to pay their legal fees?