California judge delivers ruling to help parents fight state vaccine mandates

Written By Kevin Fobbs and Susan Swift | Nov 29, 2021 | Courtesy of CommDigiNews

California Vaccine Mandates for children – By Gigi Magee – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=17290563

WASHINGTON: Parents in California and across America may soon have a reason to celebrate freedom from student vaccine mandates. What a San Diego County State Court just said about California’s Vaccine Mandate for Students is key.  Two different plaintiffs’ groups recently sued the state of California over its COVID-19 student vaccine mandate and lost. But in dismissing the case, San Diego Superior Court Judge Cynthia Freeman might have given parents a way to oppose the state’s vaccine mandate.

Let Them Breathe and Reopen California Schools (the Plaintiffs) sued San Diego Unified School District (SDUSD), the Governor of California, the Director of the Department of Public Health of the State of California (CDPH), the Secretary of the Department for Health and Human Services (DHHS) in their official capacities (the Defendants). California argued that the case was a big nothing burger, because plaintiffs could not state a valid cause of action. Judge Cynthia Freeman agreed, sustaining the demurrer without leave to amend, ending the case.  But now it gets interesting.

Judge Rules that Vaccine Mandates are not Legally Binding

What’s interesting is how the court got to its ruling. California’s student vaccine mandate is not legally binding, It is a recommendation which school districts are free to follow or to reject. So, plaintiffs have suffered no harm because they cannot complain about a recommendation.

The superior court judge used language from the defendants’ own mandate and legal arguments.  Her ruling clarified that California’s student vaccine mandates were not legally binding — they were in fact “recommendations only” which “school districts remain free to implement or not….” All quotations come from the Superior  Court of California, County of San Diego North County Minute Order dated November 12, 2021 available here.

First, the court took judicial notice of California’s “COVID-19 Public Health Guidance for K-12 Schools in California, 2021-22 School year (K-12 Guidance) (July 12, 2021)” (the Guidance). It noted that the Guidance specifically provided that “the testing strategies and the quarantine protocols are recommendations.”

The July 12th Guidance has been updated as of November 24, 2021. The most recent version also “recommends” vaccination. However, it stops short of requiring vaccines. They are, however, relying on mask mandates and weekly testing for students in schools.

Parents: Key difference Between Recommendations versus Mandates

Second, in its pleadings, the state acknowledged that

“it is not possible for recommendations, which school districts remain free to implement or not, to cause concrete injury to Plaintiffs that can be attributed to Defendants” (emphasis added).

In its subsection of the decision entitled “Recommendations versus Mandates,” the court noted that Dr. Tomás J. Aragón, California’s Secretary of DHHS, “also referred to the Guidance as ‘recommendations’ and not requirements in his public health order, effective June 15, 2021.

Aragón’s order stated in relevant part:

“All individuals must continue to follow the requirements in the current COVID-19 Public Health Guidance for K-12 Schools in California …. I will continue to monitor the scientific evidence and epidemiological data and will amend this guidance as needed by the evolving public health conditions and recommendations issued by the CDC and other public health authorities….”

The California Department of Public Health will continue to offer public health recommendations and guidance related to COVID-19.

However, aside from mandatory guidance applicable to face coverings, ‘mega-events,’ and schools, ‘all other public health guidance related to COVID-19, issued by the California Department of Public Health, will not be mandatory.

Third, in open court, lawyers for the state of California “reiterated the Defendants’ position that the testing strategies and quarantine protocols are recommendations only. The court seized on this confirmation, explaining:

“This, coupled with the plain language of the Guidance, further resolves the issue for the Court that the testing strategies and the quarantine protocols are recommendations, not mandates.”

The Court also noted that not all schools are complying with California’s “Guidance.”

California’s Guidance does not prevent a child from attending school for in-person instruction so long as the child complies with the mask mandate. Consequently, the burden the Guidance places on Plaintiffs’ educational opportunities through the imposition of a mask mandate does not sufficiently implicate a constitutional right so as to warrant strict scrutiny analysis.

Plaintiffs’ issue “is not with Defendants’ [state] recommendation but with what third parties have chosen to do with that recommendation.”

So, California mask mandates, one. Vaccine mandates, zero.

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Could California’s Superior Court ruling impact pending Federal Ninth Circuit cases?

On November 26, the Federal Ninth Circuit appeals court temporarily blocked California’s vaccine mandate for prison workers pending appeal. Liberty Unyielding observed:

“California’s greater zeal to vaccinate students than prison workers doesn’t reflect science or risk. It does reflect political power — students don’t make campaign contributions, so they lack the clout of state teacher unions and prison guard unions, who the Governor does not want to antagonize.

Prisoners live in close quarters, and are adults, so it makes far more sense to vaccinate them than young children.”

And there’s another emergency appeal pending before the Ninth Circuit. That appeal challenges the San Diego Unified School District over its COVID-19 vaccine mandate.

San Diego Unified School District is requiring a student-athlete to get her first dose of the Pfizer vaccine. Furthermore, she must be “fully vaccinated” before classes in 2022.

Lawyers are asking for an emergency injunction in the case by Monday, November 29, 2021.

The California school district does not recognize religious exemptions to the mandate.

Thomas More Society attorney Paul Jonna explained how the student must “make a decision either to get vaccinated and violate her faith or refuse the vaccine, sign up for distance learning, and drop out of sports, losing the shot at a college sports scholarship.”

The emergency appeal “presents a challenge to a ‘vaccine mandate’ for all students imposed by the San Diego Unified School District (“SDUSD”) in defiance of First Amendment principles….” 

The appeal challenges the U.S. District Court’s denial of the female athlete’s application for a temporary restraining order.

On November 28, The Ninth Circuit granted the San Diego Public school student an Emergency Injunction in the COVID Vaccine Mandate Case. Thomas More Society, stated, “The court decision, allows the student to avoid the school board’s imposed next day fully vaccinated deadline.  Without the injunction, the student would have to begin the mandatory vaccination process for becoming “fully vaccinated” before classes in 2022.”

Parents Can Legally Win the Vax Mandate War on Students 

Parents up and down the state of California can take heart. First, the state of California has admitted in pleadings and in open court that its “mandate” is really a “recommendation.”

It is up to school boards to reject or accept the state’s recommendations. Parents, not the state, not the schools, not insurance companies, decide whether children get a vaccine or not. Federal Ninth Circuit Court vax cases may garner parents a more substantive legal win.

The takeaway: Non-compliance works. Resistance to vaccine and mask mandates works. Challenges to unseat tyrannical vax-loving, CRT-pushing school board members work. Legal challenges to bureaucratic tyranny work.

Parents, must not remain silent! Fight on for your children and their community.

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About the authors:

Kevin Fobbs began writing professionally in 1975. He has been published in the “New York Times” and has written for the “Detroit News,” “Michigan Chronicle,” “GOPUSA,” “Soul Source,” and “Writers Digest” magazines. In addition to the Ann Arbor and Cleveland “Examiner,” “Free Patriot,” “Conservatives4 Palin,” and “Positively Republican.” The former daily host of The Kevin Fobbs Show on conservative News Talk WDTK – 1400 AM in Detroit is also a published author. In addition, his Christian children’s book, “Is There a Lion in My Kitchen,” hit bookstores in 2014.

California PolitiChick Susan Swift Arnall is a lawyer, wife, and conservative mother of seven children. Since her impassioned call into Rush Limbaugh’s radio program in 2009, Susan has given political commentary on radio and blogs and was invited in 2010 by Andrew Breitbart to write for his young website Big Journalism. She has written over 60 published articles for Breitbart.

Kevin Fobbs and Susan Swift