SB 277 Lawsuit – The Response to the Response… It Just Gets Better…

Wait Until You Read This…

Opinion by Consumer Advocate Tim Bolen  

With Just Four Days Until The Preliminary Injunction Hearing the Twenty-one Plaintiffs have responded to the State’s Response – the State Response I called the “blah,blah, blah, response,” and it is WONDERFUL.

There is no need for me to explain much of anything.  The reply is written in clear language.  I have just copied the first few sections right from the Court document.  If you want to read the whole thing, just go to the document itself.  It reads well.

Two small explanations:

(1)  What is “status quo ante?”  It is a legal term defined as “the previously existing state of affairs.”

(2)  What is “Strict Scrutiny?”  Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.

I’m going to bold the sections just below.  Why?  They are important.

This newsletter is short – there is another right behind it with MORE stuff.

Statement of Facts…

DEFENDANTS IGNORE AND MISREPRESENT THEIR OWN DATA ………………………..3

DEFENDANTS TREAT HEALTHY CHILDREN AS “DISEASE CARRIERS” …………………………………4

DEFENDANTS MISREPRESENT THE PRESENCE OF FETAL TISSUE IN VACCINES AND THE CATHOLIC CHURCH’S POSITION ………………….5

MEASLES OUTBREAKS DO NOT JUSTIFY SB277 …….6  

SB277 CANNOT ELIMINATE OUTBREAKS………………7

SB 277’S IMPLEMENTATION HAS CREATED TURMOIL AND CONFUSION FOR SCHOOLS AND FAMILIES …………….7

DEFENDANTS DO NOT REFUTE PLAINTIFFS’ SHOWING OF LIKELIHOOD OF SUCCESS ON THEIR CLAIMS ……………………….9

Strict Scrutiny Applies to SB 277 Because SB 277 Deprives Plaintiffs of Fundamental Rights and Suspect Classifications Are Issue ………………………….9

Jacobson and its Progeny Do Not Help Defendants Overcome Strict Scrutiny …………………………10

Defendants Misconstrue Plaintiffs’ Free Exercise Claims ………..13

Defendants Fail to Address Plaintiffs’ Equal Protection Claims ……………………….13

The State Fails to Meet Its Burden Under Strict Scrutiny …………14

Defendants Have Not Met Their Burden of Establishing A Compelling Interest For SB 277 ………….14

Defendants Have Failed To Demonstrates that SB 277 Is Necessary, Narrowly Tailored, and The Least Restrictive Means of Achieving A Compelling State Interest ……………….15

SB 277 Violates State and Federal Disability Laws …………………16

The State Refuses To Provide Guidance To Allow The Admission of Students with IEPs ………………………..17

Defendants Fail to Refute Plaintiffs’ Section 504 claims ……………………….17

DEFENDANTS CONCEDE THAT PLAINTIFFS WILL BE IRREPARABLY HARMED ……………………18

THE BALANCE OF HARDSHIPS FAVORS PLAINTIFFS ………………19

PUBLIC INTEREST WEIGHS IN PLAINTIFFS’ FAVOR ………………..19

DEFENDANTS PREMATURELY RAISE ARGUMENTS CONCERNING PLANTIFFS’ MEDICAL RECORDS CLAIMS ………..20

INTRODUCTION

The 2016-17 school year is different from prior years – and not in a good way. This year, more than 33,000 California children, many with learning disabilities and special needs, are permanently barred from all public and private schools and daycares. These children have a fundamental right to a classroom-based education and they want to go to school. Yet in a dramatic departure from its history of unwavering protection of every child’s right to an education, and without satisfying strict scrutiny, California has enacted Senate Bill (“SB”) 277 to abolish the Personal Belief Exemption (“PBE”) to its mandatory vaccination law and to permanently bar children with PBEs from school. But the U.S. and California Constitutions, as well as an array of federal and state disability and anti-discrimination laws, prohibit SB 277’s draconian result and necessitate injunctive relief.

Plaintiffs’ Motion for Preliminary Injunction exceeds the showing required for injunctive relief to maintain the status quo ante pending the outcome of this case. Plaintiffs provide a detailed analysis of the facts and law to demonstrate likelihood of success on the merits of their claims for deprivation of the right to education under the California Constitution, deprivation of free exercise, equal protection and due process rights under the U.S. Constitution, which protects parental rights, bodily integrity and informed consent, and violation of both State and Federal disability and anti-discrimination rights. Plaintiffs provide extensive evidence of irreparable injury, establish that the balance of hardships tips overwhelmingly toward Plaintiffs, and demonstrate that an injunction will serve the public interest. Plaintiffs also demonstrate that the status quo ante properly protects Plaintiffs’ rights and the public health by allowing temporary exclusion of children with PBEs in the event of an outbreak or exposure to an illness for which they have not received a vaccine.

In response, State Defendants attempt to confuse the issues and mislead the Court as to the facts and the law, without addressing Plaintiffs’ arguments and evidence. While conceding that SB 277 deprives Plaintiffs and their children of fundamental rights, State Defendants contend, in a surprisingly cavalier tone, that the deprivation of those rights is justified. They unapologetically admit, for example, that SB 277 denies Plaintiffs’ children education based on nothing more than the unfortunate misperception of those children – who are neither infectious nor contagious – as carriers of “dangerous diseases” and “threats to public health,” Opp., Doc. 30, at 9.

State Defendants base their arguments on biased, unsupported, and inadmissible statements from SB 277’s author and sponsors contained in legislative committee reports and on conclusory testimony from a declarant who, without laying a proper foundation for his opinions, contradicts Defendants’ own data and reports.

Defendants also misrepresent SB 277’s purpose and effect in a strained and irrelevant analysis that attempts to turn this case on its head and shift the focus from Plaintiffs’ actual claims to issues that Defendants would prefer to litigate.

Defendants base their entire Opposition on the argument that the State has the authority to enact vaccine mandates. But Defendants ignore the fact that SB 277 did not enact a vaccine mandate. California’s vaccine mandates, codified in Health and Safety Code sections 120325(a)(1) – (10) and 120335(a)(1) – (10), predate SB 277 and were unchanged by it.

Instead, SB 277 repealed Health and Safety Code section 120365 and abolished PBEs, subject to an arbitrary “checkpoint” scheme that serves no public health benefit. Accordingly, the cases on which Defendants rely to support SB 277 are irrelevant and easily distinguishable on the foregoing and other grounds.

Plaintiffs seek to enjoin SB 277’s enforcement to allow kindergarten and seventh grade children with PBEs to return to their schools and obtain the education to which they are constitutionally entitled, pending the outcome of this case.

Plaintiffs’ request is modest and consistent with 55 years of pre-SB 277 law. Defendants, on the other hand, ask this Court to allow the unprecedented denial of education to tens of thousands of children who face loss of protected education and special education rights, possible truancy, and removal from their families and whose parents face severe hardship including loss of employment or loss of parental custody.

Without injunctive relief, this year alone, approximately 13,000 children will not experience their first day of kindergarten and more than 8,000 pre-teens/teenagers will not advance to the seventh grade. These children make up less than half of one percent of the State’s school population and cannot impact public health. Yet the harm to each child from being denied an education is immense and irreparable.

Plaintiffs respectfully request that the Court grant their Motion and preserve the status quo ante while the parties litigate this case. California’s children deserve better than to be barred from school and subjected to forced permanent quarantine, isolation, humiliation, prejudice, and emotional distress because of an unnecessary, draconian and discriminatory law that flies in the face of the State’s compelling interest in educating children.

See Serrano v. Priest, 5 Cal.3d 584, 605 (1971) (“[E]ducation is a major determinant of an individual’s chances of economic and social success…a unique influence on a child’s development as a citizen and his participation in political and community life. … Thus, education is the lifeline of both the individual and society.”)

Stay tuned…

Opinion by Consumer Advocate Tim Bolen