‘We're collateral damage' — WV school district hires attorney to review Morrisey's vaccine mandate
A West Virginia school district is hiring an attorney to sort out who has the authority to set school vaccination polices — is it the governor, the Legislature or the state health department?
It's the tip of the iceberg for legal questions and likely court challenges as county school boards and the state board of education are grappling with how to handle Gov. Patrick Morrisey's executive order mandating that public schools permit religious and philosophical exemptions to the state's strict school immunization rules.
The state's vaccine laws remain unchanged after the GOP-led House of Delegates voted down a broad vaccine exemption bill, and other attempts to revive the legislation failed, as well. Lawmakers who voted down the measure cited constituents' pleas for upholding vaccine laws during a wave of measles cases.
'I think we're collateral damage,' said Ohio County School Board President David Croft, adding that the school district will have outside counsel determine before the end of the month if the state's immunization laws or the executive order should take precedence.
'Our goal, and I hope the rest of the state follows, is to understand that the issue is not if a single board member is or is not in favor of vaccinations. But it is trying to [do] their duties as a county board of education member appropriately by following West Virginia laws,' he said.
Morrisey says that, regardless that the state immunization laws remain unchanged, public schools must comply with his executive order, citing a 2023 religious freedom law as its legal justification.
While some private schools say they won't comply, parents have already begun requesting a religious exemption to vaccine rules from the state health department.
'It's a complex legal analysis that has to be done here,' said Croft, who is an attorney.
He said the analysis will have to look at kids' constitutional rights to a safe education versus religious freedom, along with a disagreement between the executive and legislative branches of government.
'Our goal at the end of the day is to put our kids in the best position we can — and our teachers,' Croft added.
The issue is likely to end up before a judge ahead of next school year.
Croft noted that the U.S. Court of Appeals for the Fourth Circuit, which could preside over a possible challenge, already ruled in a 2011 lawsuit involving a Mingo County student that the state's vaccines laws were constitutional and did not overly burden a parent's right to free exercise of religion.
The push to edit the state's vaccine laws has been spearheaded by Sen. Laura Chapman, R-Ohio. She was the lead sponsor of a bill earlier this year that would have allowed religious exemptions for school vaccine requirements and revised the existing medical exemption process.
Chapman, a mother and attorney, said she wholeheartedly supports Morrisey's executive order regarding religious exemptions.
'Gov. Morrisey's executive action is well-grounded in law based on the Equal Protection for Religion Act, which protects against government discrimination against a sincerely held religious belief,' she said.
Prior to the executive order, West Virginia was among five states that didn't allow exemptions to school vaccine requirements based on religious or philosophical beliefs. State laws only allowed medical exemptions.
'We are one of the most religious states in the nation and we unfortunately are lumped in with liberal states like California and New York,' Chapman said. 'Each of our surrounding states offer a religious exemption and the [Centers for Disease Control] numbers are sub-herd immunity levels. There is no reason to believe West Virginia will be any different. Ultimately, a family should not be required to give up their religious beliefs in order to go to our fantastic public and private schools.'
Del. Shawn Fluharty, D-Ohio, was among the House's no votes on changing the state's vaccine laws. The bill was voted down 42-56 in March.
'We elect public officials to pass public policy, we don't elect kings and queens,' Fluharty said. 'This session, public officials listened to their constituents, medical professionals and experts by rightfully voting down this bad public policy. It's a shame the governor and his handlers want to circumvent this process.'
On Wednesday, the West Virginia school board will discuss religion exemptions from school vaccinations, according to their agenda.
State Schools Superintendent Michele Blatt earlier this month issued guidance to school superintendents recommending that students not be allowed to attend schools next year without the required vaccinations. She rescinded the memo at the request of Morrisey and is now working with the governor's office to issue clear guidance to schools about how to comply with the executive order, according to her statement.
Del. Hollis Lewis, D-Kanawha, has called on the state school board to maintain its current immunization requirements. He wrote a letter to the board on Tuesday, saying that Morrisey's executive order conflicts with existing statutory law and oversteps constitutional authority.
Hollis wrote that the current vaccine law 'protects the health and safety of West Virginia's children, families and communities.'
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