Despite WV board of education move on vaccine executive order, ACLU lawsuit continues
A legal challenge of West Virginia Gov. Patrick Morrisey's executive order allowing religious exemptions to the state's school vaccine requirements will proceed, despite the state school board voting this week to defy the order.
The American Civil Liberties Union of West Virginia and Mountain State Justice filed the writ of mandamus last month in Kanawha County Circuit Court on behalf of two parents of immunocompromised children. The lawsuit asks the court to compel the state's Department of Health and Bureau for Public Health to stop granting religious exemptions in compliance with Morrisey's executive order.
'The lawsuit is still ongoing,' Aubrey Sparks, legal director for ACLU-WV, said Friday. 'I think that there are a lot of questions about what [the board of education's decision] means practically, whether this fixes the issue, or whether it doesn't. At this point, it's just too early for us to know the consequences of the school board's actions, given that Patrick Morrisey is still committed to awarding these exemptions.'
The state school board unanimously voted Wednesday that Superintendent Michele Blatt would issue guidance to county boards of education that schools should follow the state's existing vaccine mandates, which allow only medical exemptions, rather than the executive order.
'The intent of the state board is to do what's best for the 241,000 children, 23,000 educators and 15,000 service personnel in our 629 public schools,' the board wrote in a statement Thursday afternoon. 'This includes taking the important steps of protecting the school community from the real risk of exposure to litigation that could result from not following vaccination laws.
'The board is constitutionally bound to provide a thorough and efficient system of free schools, and our members remain committed to this charge,' they wrote.
Sparks said the board's action introduces a lot of uncertainty both to families who want religious exemptions and families of immunocompromised children who might be at risk if exemptions are granted.
West Virginia's school vaccine laws are some of the strongest in the country. It's one of five states that by law allow only medical exemptions for school-required vaccines. Gov. Patrick Morrisey issued an executive order in January requiring the state to allow religious exemptions.
Despite the order, the Legislature this year rejected Senate Bill 460, which would have made the religious exemptions part of state law.
Since Morrisey issued the executive order in January, the state Department of Health has granted at least 330 religious exemptions to the vaccine requirements.
A spokeswoman for the school board said Friday that the exemptions that have already been granted will not be accepted for the upcoming new school year because, per the governor's instructions, the exemptions must be renewed yearly.
Alisa Shepler, a school nurse in Wood County, said the state school board's move is a victory for school nurses and for West Virginia health care more generally. Immunizations protect more than only school children, they also protect immunocompromised people in the community, she said.
Shepler, who is retiring Friday after more than 25 years on the job, said she's proud of the school board for going against the governor's order.
'I think that it's very telling that our state board of education, they kind of drew a line in the sand,' she said. 'And a lot of times, I think states don't have that backbone, but obviously our state board of education did.'
In a statement Wednesday, a spokesman for the governor's office said that the state school board is 'trampling on the religious liberties of children, ignoring the state's religious freedom law, and trying to make the state an extreme outlier on vaccine policy when there isn't a valid public policy reason to do so.'
The governor's executive order is based on the Equal Protection for Religion Act, a law signed by former Gov. Jim Justice in 2023 that prohibits government action that substantially burdens a person's exercise of religion unless it serves a compelling government interest and is the least restrictive means of achieving that interest.
Sparks said the religious freedom law gives people a process by which to say their rights have been violated, but it does not give the governor the right to ignore, override a duty created by the legislature.
'What really is underlying this is an attempt at executive power over reach,' Sparks said. 'Patrick Morrisey wanted a law passed. He lobbied to get a law passed, and he wasn't successful at it. He didn't pull it across the finish line because the Legislature didn't agree with them. And it's not a governor's right or ability to ignore the laws that the Legislature passes just because they don't like them.'
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