By: Steven D. Hall

As a follow up to an update we provided last year, Mickes O’Toole can report continued success in litigating on behalf of school districts and individual school administrators who were accused of violating the constitutional rights of parents who sought to obtain a vaccination waiver for their child without following state rules.  Specifically, Missouri’s rules require that those seeking a vaccination waiver use Form 11 to record their religious objection in obtaining a vaccination waiver for their child. In this recent litigation, the constitutionally of Form 11 was at stake.  Form 11 is the state-issued waiver form that parents or guardians must obtain, complete and submit to obtain a vaccination waiver for one’s child from Missouri’s laws that requires pupils to be vaccinated in order to attend school. As we reported last year, the firm was successful in obtaining a dismissal of a putative class action brought by parents against school districts, school administrators, and school healthcare workers. Their claims challenged whether the state could require them to submit Form 11 as the sole method of obtaining a vaccination waiver, or whether they could obtain a waiver by submitting an objection in the manner of their choosing.  After the district court granted the motion to dismiss plaintiffs’ claims against the school districts and its personnel, plaintiffs appealed in the U.S. Court of the Appeals for the Eighth Circuit.  Earlier this month, that court issued its ruling.

Without a dissenting opinion, the three-judge panel for the court of appeals affirmed the dismissal of the district court. The opinion (B.W.C. v. Williams, No. 20-1222, Mar. 5, 2021) analyzed parents/guardians’ constitutional claims based on the speech and religious liberty clauses, and it ruled that parents/guardians suffered no violation of their constitutional rights by having to submit Form 11 to obtain a vaccination waiver. As to the Free Speech Clause, the court ruled that the statements appearing on Form 11 encouraging vaccinations could not reasonably be interpreted to mean that the state was requiring those seeking a waiver to affiliate with the Form’s pro-vaccination statements. In a sweeping ruling, the court ruled that “Form 11 does not compel speech, restrict speech, or incidentally burden speech”.  As to the religious liberty challenges, the court ruled that the use of Form 11 did not impact these constitutional rights because it did not target religious believers. Instead, the court ruled that Form 11 communicated neutrally and contained truthful information that was relevant to the decision of whether to vaccinate a child.  The court also ruled that Form 11 did not require any conduct that violated appellants’ religious beliefs. As a result, schools acted properly when they required the submission of Form 11 before waiving the vaccinations required of pupils who attend school.

The practical ramifications of this decision reaffirm the pointers we previously provided when the district court dismissed the plaintiffs’ claims, and those include:

  • Districts do not have to physically provide Form 11 to parents but should direct those seeking it to contact DSS either by phone or mail to obtain an original form.
  • Districts should not accept anything less than a properly completed and signed Form 11.
  • Districts should not accept copies of Form 11 or generalized statements that may match the substance of the language contained on Form 11.
  • Districts should not entertain requests for a waiver on any basis other than religious belief, because no other exception (except for medical reasons) is recognized in Missouri.
  • Districts should keep all properly-executed Form 11s with immunization health records that schools are required to maintain and keep.

In a footnote, the appellate court took note of one school’s practice when it decided to disenroll a student whose parents refused to submit Form 11. Approvingly, the court stated that school officials had provided “clear written notice” to the parents of the failure to complete Form 11 that would result in disenrollment. The court then also stated approvingly the school met with the parents “well in advance of its decision to disenroll their children”, and the court noted that this satisfied due process concerns. As a result, school district would be well advised to call legal counsel and follow these steps if faced with a situation where a vaccination waiver is requested but there is a refusal to complete Form 11. But in any event, the mandatory use of Form 11 to obtain a vaccination waiver now appears firmly established.

Further questions may be directed to Mickes O’Toole on this and related subjects.

Read the original article here.