The opinion
Filed 11/22/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LET THEM CHOOSE, D079906
Plaintiff and Respondent,
v. (Super. Ct. No.
37-2021-00043172-CU-WM-CTL)
SAN DIEGO UNIFIED SCHOOL
DISTRICT,
Defendant and Appellant.
S.V. et al., (Super. Ct. No.
37-2021-00049949-CU-WM-CTL)
Plaintiffs and Respondents,
v.
SAN DIEGO UNIFIED SCHOOL
DISTRICT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
John S. Meyer, Judge. Judgment affirmed; requests for judicial notice
granted in part and denied in part.
Atkinson, Andelson, Loya, Ruud & Romo, Mark Robert Bresee, Amy W.
Estrada, Alyssa Ruiz de Esparza for Defendant and Appellant.
Aannestad Andelin & Corn, Lee Michael Andelin and Arie L. Spangler
for Plaintiff and Respondent Let Them Choose, etc.
Siri & Glimstad, Aaron Siri and Caroline Tucker for Plaintiffs and
Respondents.
A century ago during a smallpox epidemic, the California Supreme
Court held that the Legislature may require school children to be vaccinated
against that disease. (Abeel v. Clark (1890) 84 Cal. 226, 230.) Since then, the
Legislature has required students to be vaccinated for 10 diseases—but
COVID-19 is not yet among them. The issue here is whether a school district
may require students to be vaccinated for COVID-19 as a condition for both
(1) attending in-person class, and (2) participating in extracurricular
activities. The superior court determined there was a “statewide standard for
school vaccination,” leaving “no room for each of the over 1,000 individual
school districts to impose a patchwork of additional vaccine mandates.”
On independent review, we reach the same conclusion and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The operative facts are few and undisputed. In September 2021, the
San Diego Unified School District (District) adopted a “Vaccination Roadmap”
(Roadmap) requiring students ages 16 or older to be vaccinated for COVID-19
in order to attend in-person classes and participate in sports and other
2
extracurricular activities.1 Unvaccinated students in this group were
involuntarily placed on independent study. The Roadmap recognizes an
exemption for medical reasons, but not for religious or personal beliefs.2
1 In June 2022, the District informed us that it has delayed
implementing the vaccine mandate to no earlier than July 2023. For the first
time at oral argument in November 2022, its attorney asserted this delay
rendered the consolidated appeals moot. Alternatively, counsel maintained
that at a minimum, S.V.’s case was moot because in July 2023 he will be
completing his senior year of high school.
For obvious considerations of fairness, we ordinarily do not consider
points made for the first time at oral argument (Haight Ashbury Free Clinics,
Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn. 9),
and we decline to do so here. The District could have raised this issue at
least five months ago, either by motion or in its reply brief in response to an
argument by Let Them Choose that the postponement did not make the case
moot. It did neither.
Even putting aside forfeiture, the cases are not moot because merely
postponing (as distinguished from cancelling) the vaccination mandate does
not impact this court’s ability to render effective relief. In any event, we
would exercise our discretion to decide the consolidated appeals because they
present issues of broad public interest that are likely to recur. (See
Berroteran II v. Superior Court (2022) 12 Cal. 5th 867, 877.)
2 We deny the District’s April 2022 request for judicial notice of a press
release (exh. A) entitled “California Becomes First State in Nation to
Announce COVID-19 Vaccine Requirements for Schools.” The District
concedes that the document was not presented to the trial court. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) At
most, we could take judicial notice of the existence of the press release, but
not the truth of its contents. (See Malek Media Group, LLC v. AXQG Corp.
(2020) 58 Cal.App.5th 817, 826‒827.) On the same grounds, the request for
judicial notice of a different press release by Let Them Choose is also denied.
3
In October 2021, Let Them Choose filed a complaint and petition for a
writ of mandate challenging the Roadmap.3 About six weeks later, a similar
complaint was filed by S.V., the parent of a 16-year-old student. The cases
were consolidated for trial.4
After conducting a hearing on motions for judgment, the court ruled
that the District’s COVID-19 immunization requirement is preempted by
state law. It reasoned:
“I think that the state . . . has fully occupied this field,
there’s a statewide standard, and a local school district
simply doesn’t have the authority to do something
inconsistent with the statewide standard.”
DISCUSSION
A. The Statutory and Regulatory Framework for School Vaccination
Health and Safety Code5 section 120335 provides that a school “shall
not unconditionally admit” a pupil who has not been vaccinated for: polio,
diphtheria, tetanus, pertussis, hepatitis B, haemophilus influenzae type B
(HIB), measles, mumps, rubella, and chicken pox. (§§ 120370, subd. (a)(3),
120335, subd. (b)(1)‒(10).) “Each of the 10 diseases was added . . . through
legislative action, after careful consideration of the public health risks of
these diseases, cost to the state and health system, communicability, and
rates of transmission.” (Love v. State Dept. of Education (2018) 29
3 The complaint alleges that Let Them Choose is “an initiative of Let
Them Breathe, California nonprofit public benefit corporation that represents
a community of more than 20,000 parents.”
4 On appeal, Let Them Choose and S.V. have filed separate briefs, but
have also joined in each other’s arguments.
5 Undesignated statutory references are to the Health and Safety Code.
4
Cal.App.4th 980, 993 (Love).) The California Department of Public Health
(DPH) has adopted detailed regulations to effectuate this law. (§§ 20,
120390; Cal. Code Regs., tit. 17, § 6000 et seq.)6
As enacted in 1995, former sections 120365 and 120370 provided
exemptions from the vaccination requirements based on personal beliefs or
medical reasons. (Stats. 1995, ch. 415, p. 3003.) But in 2015, the Legislature
eliminated the personal beliefs exemption for the existing 10 specified
vaccinations.7 (Love, supra, 29 Cal.App.5th at p. 986.) At the same time, it
also considered whether vaccination should be mandated on a school district
by school district basis, or instead statewide. A bill analysis explained that a
statewide standard was preferred:
“To provide a statewide standard[ ] allows for a consistent
policy that can be publicized in a uniform manner, so
districts and educational efforts may be enacted with best
practices for each district. . . . Further in consultation with
various health officers, they believe a statewide policy
provides them the tools to protect all children equally from
an outbreak.” (Sen. Com. on Judiciary, Analysis of Sen.
Bill No. 277 (2015–2016) as amended Apr. 22, 2015, p. 18.)8
Section 120335 does not specify when a student must be immunized.
Regulation 6025 fills that gap. It provides that a school “shall
6 Citations to regulations are to title 17 of the Code of Regulations.
7 As we later explain, a personal beliefs exemption is still required if the
DPH exercises its statutory authority to add required immunizations beyond
the 10 specified in section 120335, subdivision (b). (Stats. 2015, ch. 35, § 3.)
8 The court grants the District’s unopposed request for judicial notice of
the Senate Judiciary Committee analysis cited in the text above (exh. C), as
well the Assembly Committee on Health analysis of Senate Bill No. 277 (exh.
B).
5
unconditionally admit or allow continued attendance” to any pupil who has
provided documentation for each immunization as set forth in one of two
tables. (Id., subd. (a).) Table A applies to students ages two months to five
years old. Table B, applicable to grades Kindergarten through 12, sets forth
required immunizations for school admissions:
9
B. The District’s COVID-19 Vaccination Mandate is Preempted by State
Law
Intrastate preemption occurs when local law “ ‘ “ ‘ “duplicates,
contradicts, or enters an area fully occupied by general law, either expressly
or by legislative implication.” ’ ” ’ ” (T-Mobile West LLC v. City and County of
San Francisco (2019) 6 Cal.5th 1107, 1116 (T-Mobile West LLC).) Local law
“contradicts” state law (conflict preemption) when it “ ‘directly requires what
the state statute forbids or prohibits what the state enactment demands.’ ”
(City of Riverside v. Inland Empire Patients Health & Wellness Center,
Inc. (2013) 56 Cal.4th 729, 743 (City of Riverside).) It enters a field already
occupied by state law (field preemption) “when the Legislature ‘expressly
manifest[s]’ its intent to occupy the legal area or when the Legislature
‘impliedly’ occupies the field.” (O’Connell v. City of Stockton (2007) 41 Cal.4th
9 DTaP = diphtheria toxoid, tetanus toxoid, and acellular pertussis;
MMR = measles, mumps, and rubella (Reg., § 6000(c)(9)); Tdap = tetanus
toxoid, reduced diphtheria toxoid, and acellular pertussis (id., subd. (c)(1),
(c)(3) & (c)(9).) Superscript numbers (e.g., Polio ) correspond to footnotes in
the regulation containing additional details.
6
1061, 1068.) Although either would suffice, here the Roadmap is preempted
on both grounds.10
1. The Roadmap Conflicts with Health and Safety Code Section 120335
and Regulation 6025 by Adding Requirements in a Manner
Inconsistent with a Comprehensive Statewide Scheme
Section 120335 is phrased somewhat awkwardly in the negative—it
tells a local school district what it cannot do:
“The governing authority shall not unconditionally admit
any person as pupil unless, prior to his or her first
admission to that institution, he or she has been fully
immunized.” (§ 120335, subd. (b), italics added.)
“[F]ully immunized” is defined in subdivision (b)(1) through (11) of the same
statute, which identifies 10 “diseases for which immunizations shall be
documented,” plus “any other disease deemed appropriate by the
department”11 after “taking into consideration the recommendations” of
several medical groups, including the Advisory Committee on Immunization
Practices of the United States Department of Health and Human Services
(Advisory Committee). (§ 120335, subd. (b)(11).)
On its face, section 120335 provides that a student who is not “fully
immunized” within the meaning of the statute cannot be unconditionally
admitted to school. No one disputes that. But what about a pupil who is
fully immunized within the meaning of section 120335, but is not vaccinated
for COVID-19? Reasonably construed, section 120335 speaks to that too. By
creating a comprehensive state procedure to determine the compulsory
10 Preemption is a question of law reviewed independently on appeal.
(Chevron U.S.A., Inc. v. County of Monterey (2021) 70 Cal.App.5th 153, 174.)
11 The “department” is DPH, formerly known as the State Department of
Health Services. (§ 131051, subd. (a)(3)(J).)
7
vaccinations for school attendance, the statute by negative-but-necessary
implication provides that students who comply with state immunization
requirements (and any other eligibility rules, e.g., residency, age) are entitled
to attend California schools, and the “governing authority” is not permitted to
add its own vaccination mandates.12 (Spicer v. City of Camarillo (2011) 195
Cal.App.4th 1423, 1427 [“[A] statute may express the law by ‘negative
implication’ ”].)
This conclusion follows from both the language and structure of section
120335, as well as the State Department of Public Health regulation that
interprets it. It might be a different matter if the statute merely established
a set of minimum vaccination requirements, leaving it to local school districts
to supplement with additional immunizations they believed necessary to
protect the health of the students. But section 120335 does much more than
set statewide minimums. By creating a process by which new immunizations
can be added to the statutory list without further legislative action, it
expresses a directive that the vaccinations required for school attendance
present a statewide issue subject to statewide criteria. In a nutshell, local
variations must give way to a uniform state standard.
Significantly, DPH interprets the statute the same way. Citing section
120335 as its authority, regulation 6025 provides:
“A school . . . facility shall unconditionally admit or allow
continued attendance to any pupil . . . whose parent or
guardian has provided documentation . . . for each
immunization required for the pupil’s age or grade, as
defined in Table A or B of this section.” (Reg., § 6025,
italics added.)
12 Under section 120335, the “ ‘governing authority’ means the governing
board of each school district or the authority of each other private or public
institution responsible for the operation and control of the institution or the
principal or administrator of each school or institution.”
8
Of course, the ultimate responsibility for interpreting a statute rests with
courts. Nevertheless, we ordinarily defer to an agency’s interpretation where
it has “consistently maintained the interpretation in question, especially if it
is long standing” and contemporaneous with the Legislature’s enactment of
the relevant statute. (Yamaha Corp. of America v. State Bd. of Equalization
(1998) 19 Cal.4th 1, 12‒13.)
Both of these factors exist here. In 1979, the Legislature amended
former section 3381 to add the key language that is now in section 120335.
The 1979 version provided:
“The governing authority shall not unconditionally admit
any person as a pupil . . . unless prior to his or her first
admission to that institution he or she has been fully
immunized against . . . [enumerated diseases].” (Stats.
1979., ch. 435, § 2, p. 1560.)
The corresponding language in regulation 6025 was adopted
contemporaneously, stating:
“Any pupil who has received the required immunizations
against poliomyelitis, diphtheria, tetanus, pertussis and
measles (rubeola) shall be admitted without condition as a
pupil to a given public or private elementary or secondary
school.” (Reg., § 6025, Register 79, No. 35 (Sept. 1979)
p. 144.1, italics added.)
The plain language in regulation 6025 undermines the District’s claim
that it can exclude a student who has received all the statutorily required
immunizations. Its only response is that the regulation itself is void because
it “contradicts the plain language” of Health and Safety Code section 120335,
subdivision (a). But there is no contradiction. The regulation merely states
in express language what the statute necessarily implies.
In a related argument, the District maintains that interpreting
regulation 6025 in this manner leads to “illogical results.” It posits a
9
hypothetical where fully vaccinated students are nevertheless statutorily
ineligible to attend school because they are underage or a nonresident. The
District maintains that in such a case, regulation 6025 would seemingly
require that such student be “unconditionally admitted”—an absurd result.
This argument fails because “unconditionally admitted” as used in
regulation 6025 is a specifically defined term of art. It means “admission
based upon documented receipt of all required immunizations for the pupil’s
age or grade, in accordance with section 6025” except for immunizations
“permanently exempted for medical reasons” or for “personal beliefs in
accordance with Health and Safe code section 120335.” (Reg., § 6000, subd.
(a)(1)(A)‒(B).) Thus, Regulation 6025 does not require a fully vaccinated but
underage or nonresident student to be admitted. But it does require
admission of a student otherwise eligible to be admitted if that student is fully
immunized.13
Even if the Roadmap did not contradict the applicable state statutes
and regulations, it would be preempted because it purports to regulate an
area of law that the Legislature has “ ‘fully occupied.’ ” (City of Riverside,
supra, 56 Cal.4th at p. 743.) In making this determination, relevant factors
include whether:
“(1) the subject matter has been so fully and completely
covered by general law as to clearly indicate that it has
become exclusively a matter of state concern; or
13 There is another conflict as well. If the DPH were to add COVID-19
under section 120335, subdivision (b), a student would be entitled to seek an
exemption based on “medical reasons and personal beliefs.” (§ 120338, italics
added.) But the Roadmap lacks any personal belief exemption. Accordingly,
it is even more restrictive than what the DPH itself could lawfully impose.
10
“(2) the subject matter has been partially covered by
general law couched in such terms as to indicate clearly
that a paramount state concern will not tolerate further or
additional local action . . . .” (Id. at p. 743.)
Both factors are present in this case. The Legislature has covered the
matter fully and completely, defining the who, what, when, and where of
compulsory student vaccination:
1. Who shall receive vaccines. (§ 120335, subd. (b).)
2. Who may administer vaccines. (§§ 120375, subd. (d), 120380.)
3. Sources for obtaining immunization. (§ 120345.)
4. Proper documentation of vaccination. (§ 120355.)
5. Exemption for community college students. (§ 120360.)
6. The diseases for which immunization shall be documented.
(§ 120335, subd. (b)(1)‒(11).)
7. The role of county health officers in organizing and maintaining a
program to make immunizations available. (§ 120350.)
8. Who can add diseases to the list of required immunization.
(§ 120335, subd. (b)(11).)
9. Medical exemptions and appeal of revoked medical exemptions.
(§§ 120370, 120372.05.)
10. Conditional admission of students not fully vaccinated.
(§ 120340.)
11. Excluding unvaccinated students who are exposed to specific
diseases. (§ 120370, subd. (b).)
Given the scope of the state statutes, school districts have no remaining
discretion in these matters. Regulation 6025, for example, provides that a
school “shall unconditionally admit or allow continued attendance to any
pupil” who provides documentation of each immunization required for their
age or grade. (Id., subd. (a), italics added; Health and Safety Code, § 16
[“ ‘[s]hall is mandatory’ ”].) Similarly, local authorities have no decision-
11
making authority regarding who can administer vaccines. (Ed. Code,
§ 49403, subds. (a) & (b).) The student vaccination statutes “ ‘are so
extensive in their scope that they clearly show an intention by the
Legislature to adopt a general scheme for the regulation of’ ” mandatory
vaccinations for school students to attend in person class and participate in
extracurricular activities. (See American Financial Services Assn. v. City of
Oakland (2005) 34 Cal.4th 1239, 1254‒1255.) The extensive statutory
scheme demonstrates that “[t]he Legislature has recognized that matters of
health and medicine . . . are of statewide concern” in which “the Legislature
has paramount authority.” (Northern Cal. Psychiatric Society v. City of
Berkeley (1986) 178 Cal.App.3d 90, 107, 108.)
Most compelling, as we have already noted, the Legislature has fully
addressed the process of adding diseases to the 10 enumerated ones in
section 120335. In subdivision (b)(11) of that statute, the Legislature
contemplated new vaccine mandates in the future without further legislative
action—but assigned that responsibility not to school authorities, but rather
to the DPH. Even then, it required DPH to consider recommendations from
two national physician organizations, one specializing in family medicine and
the other in pediatrics—plus the Advisory Committee, which is “the key
decision-making body within the federal government on childhood
immunization policy.”14 The Roadmap’s COVID-19 mandate unlawfully
seeks to usurp that authority. If the District desired to condition school
attendance on a vaccination for COVID-19, it should have urged DPH to
14 See Holland, Compulsory Vaccination, the Constitution, and the
Hepatitis B Mandate for Infants and Young Children (2012) 12 Yale J. Health
Pol’y, L. & Ethics 39, 54.
12
follow the existing statutory procedure under section 120335, subdivision
(b)(11) for adding new immunizations.15
2. The District’s Contrary Arguments Are Unavailing
In sum then, we reject the District’s primary contention that the
Legislature left the door open for local school districts to require student
vaccination for COVID-19 as a condition to attending in-person class. In
urging otherwise, the District first maintains “there is a presumption against
preemption” that imposes “a high” bar. Actually, however, the “presumption
against preemption” is more nuanced. It applies only when a regulation is in
an area over which local government traditionally has exercised control, such
as land use. (People v. Nguyen (2014) 222 Cal.App.4th 1168, 1186.) No
presumption arises where, as here, a local mandate intrudes into an area
historically subject to state regulation. (Id. at p. 1187.)
Since 1911, the Legislature has regulated student vaccination. (See
Stats. 1911, ch. 134 [smallpox vaccine].) Because this is an area of law over
which the Legislature has generally exercised control, no presumption
against preemption exists. In any event, even if the presumption operated, it
is merely a starting point. It can be—and here has been—rebutted by the
statutory analysis we have already undertaken.
Apart from any presumption, the District contends that school districts
have “significant authority and responsibility over student health and safety
measures.” It invokes authority to require COVID-19 vaccination based on
the Crime Victim’s Bill of Rights Act of 2008: Marsy’s Law (Cal. Const., art.
15 Because of this disposition, it is unnecessary to address plaintiffs’
claims that (1) the judgment should be affirmed on procedural grounds
involving alleged defects in the appellant’s appendix; and (2) Education Code
section 49405 expressly preempts local regulation of student vaccinations.
13
I, § 28), under which students have an “inalienable right to attend campuses
which are safe, secure and peaceful.” (Id., at § 28(f)(1).) But context is
crucial here. The right to school safety encompassed within the Victim’s Bill
of Rights “was intended to be, is aimed at, and is limited to, the single subject
of safety from criminal behavior.” (Brosnahan v. Brown (1982) 32 Cal.3d 236,
248.)
The District also relies on cases recognizing a “special relationship”
between a school district and its students. According to the District, this
relationship requires schools to use reasonable measures to protect students
from foreseeable injury at the hands of third parties. (See Achay v.
Huntington Beach Union High School Dist. (2022) 80 Cal.App.5th 528, 536;
Ratcliff v. The Roman Catholic Archbishop of Los Angeles (2022)
79 Cal.App.5th 982, 1007.) Somewhat ironically given the context of this
case, this special relationship is usually invoked by parties seeking to impose
tort liability on a school district for personal injury. That was the situation in
two of the cases the District cites, Rodriguez v. Inglewood Unified School
District (1986) 186 Cal.App.3d 707, 711 (student stabbed by a nonstudent)
and Walsh v. Tehachapi Unified School District (2014) 997 F. Supp.2d 1071,
1086 (death by suicide after bullying). We are not persuaded that the policies
that have led to recognizing a tort duty to prevent personal injury extend to
compelled vaccination, which is essentially a medical decision.
Searching elsewhere for authority, the District points to Education
Code section 49400, which provides that a school district “shall give diligent
care to the health and physical development of pupils, and may employ
properly certified persons for the work.” But this statute does not mention
vaccination. The more natural reading, consistent with other provisions in
the Education Code, is that it authorizes school districts to employ persons to
14
(1) conduct sight and hearing tests (Ed. Code, § 49452); (2) screen for scoliosis
(id., § 49452.5); (3) develop informational materials for type 1 and type 2
diabetes (id., §§ 49452.6, 49452.7); (4) document that the child has received a
dental assessment (id., § 49452.8); and (5) appraise the student’s vision
“[d]uring the kindergarten year or upon first enrollment, and in grades 2, 5,
and 8” (id., § 49455).
The District also invokes Education Code section 49403, subdivision (a),
which states that notwithstanding any other law, a school district “shall
cooperate with local health officers” in preventing communicable diseases and
for that purpose may use its funds and personnel “to administer an
immunizing agent to a pupil” whose parent has consented. These
immunization programs include seasonal influenza and “diseases that
represent a current or potential outbreak as declared by a federal, state, or
local public health officer.” (Ed. Code, § 49403, subds. (b)(2)(C)(i)‒(iii) & (e)).
Again, however, we believe the reasonable interpretation of the statute is
more narrow. Education Code section 49403 does not allow a local school
district to mandate new vaccinations; it merely permits the district to
administer vaccinations—that is, to give injections—and only if the parent of
the student agrees. Subdivision (a) provides that a school board may use its
money and personnel to “administer” vaccine. Subdivision (b) identifies the
“health care practitioners” who, “acting under the direction of a supervising
physician and surgeon” are authorized to administer a vaccine “within the
course of a school immunization program.” This includes, for example, a
nurse practitioner and licensed vocational nurse. (Id., § 49403, subd.
(b)(1)(B) & (b)(1)(D).) The statute also limits the authority of the person
administering the vaccine. “The administration of an immunizing agent”
must be “upon the standing orders of a supervising physician” and “in
15
accordance with any written regulations that the State Department of Public
Health may adopt.” (Id., § 49403, subd. (b)(2)(A).) And the person
administering immunizations may only do so for the control of influenzas and
“[o]ther diseases that represent a current or potential outbreak as declared by
a federal, state, or local public health officer.” (Id., § 49403, subd.
(b)(2)(C)(iii), italics added.) Thus, consistent with Health and Safety Code
section 120335, subdivision (b)(11), here too the Legislature has mandated
that public health officials—not school authorities—determine the disease(s)
for which vaccinations are required.
The District’s reliance on Education Code section 49403 also proves too
much. Subdivision (a) of that statute authorizes use of school district funds
to vaccinate a pupil “whose parent or guardian has consented in writing to the
administration of the immunizing agent.” (Id., § 49403, subd. (a), italics
added.) Here, S.V. specifically alleges that he does not consent. Thus, even if
interpreted as the District claims it should be, it would not authorize
involuntary COVID-19 vaccination involved in this case.
The District also cites Education Code sections 35160, 35160.1, and
article IX, section 14 of the state Constitution—all of which grant a school
district broad authority to initiate programs designed to meet local needs.16
No one denies such authority. The problem for the District’s position is that
local programs cannot “conflict with or [be] inconsistent with, or preempted
by, any law . . . .” (Ed. Code, § 35160, italics added.) Even the broadest scope
of local authority ends where it interferes with state law.
16 “The Legislature may authorize the governing boards of all school
districts to initiate and carry on any programs, activities, or to otherwise act
in any manner which is not in conflict with the laws and purposes for which
school districts are established.” (Cal. Const., art. IX, § 14.)
16
Apart from these statutes, the District also relies on a 64-year-old
opinion from the California Attorney General, which it claims “reinforc[es]
the conclusion that student vaccination programs are not the exclusive
province of the Legislature.” The question presented in the 1958 opinion was
whether a school district can use its funds to pay for flu shots for staff and
students. The Attorney General concluded it could. (31 Ops.Cal.Atty.Gen.
27, 28 (1958).) We have no reason to disagree, but that opinion goes only so
far. There is a huge difference between having authority to pay for a flu shot
and the power to require a student to get one as a condition of attending
class.
The Attorney General’s opinion is consistent with Education Code
section 49403, which provides that a school board may use its money and
personnel to administer a vaccine. But as already explained, that is not a
grant of legislative power to declare what disease(s) a student must be
vaccinated for as a condition of attending class. Health and Safety Code
section 120335, subdivision (b)(11) vests such power in the DPH alone, and
even then, only upon consultation with medical experts.
Finally, the District makes the strained argument that the Roadmap
does not actually mandate students be vaccinated for COVID-19. Rather, it
gives them the choice to either do so or be enrolled in independent study.
Reminiscent of the school cafeteria offering a choice between Brussels sprouts
or broccoli, the District asserts, “A choice between two options, even if both
are not preferred, is still a choice, and the same choice cannot be called
coerced in one instance and voluntary in the other instance.”
We doubt that students and their parents perceive a real choice. For
some, independent study would likely be a step backwards. According to the
State Department of Education, independent study “may not be the right
17
option for every pupil who is not thriving in a regular classroom setting.
Some pupils might be better served in an educational option that is
classroom-based and offers a smaller learning environment and more
individualization.”17 “Generally, success in independent study requires
motivation and a strong commitment on the part of the pupil and, for some
pupils, requires the support of parents/guardians/caregivers. It also requires
sufficient academic preparation to enable the pupil to work independently.”18
In any event, the District’s free choice argument is belied by Regulation
6025. It gives the school no choice but to “admit or allow continued
attendance” to any pupil whose parent or guardian has provided
documentation of the 10 required immunizations and/or medical or applicable
personal belief exemptions. (Reg., § 6025, subd. (a), italics added.) The plain
meaning of “attendance” in this context is in-classroom learning. To the
extent the Roadmap requires a student who is fully vaccinated within the
meaning of Regulation 6025 to choose between a mandated COVID-19
vaccination and involuntary independent study, it is a choice the Legislature
does not permit the District to compel.19
17 California Department of Education, Is Independent Study Right for
My Pupil? <https://www.cde.ca.gov/sp/eo/is/rightforstudent.asp> archived [as
of Nov. 22, 2022] at <https://perma.cc/DET4-2GQ7>.
18 See footnote 16, ante.
19 The court generally denies the request for judicial notice filed by Let
Them Choose on May 25, 2022. The request does not indicate, as required by
California Rules of Court, rule 8.252(a)(2)(B), whether the trial court was
requested to take judicial notice of the matters. In any event, statistical
information regarding COVID-19 (exhs. A and B), various items of legislative
history (exhs. D, E, and F), and Los Angeles Board of Education meeting
minutes (exh. I) are not relevant to the disposition of the issues on appeal
and judicial notice of these exhibits is denied on that basis. The court takes
18
DISPOSITION
The judgment is affirmed. The stay issued February 1, 2022 is vacated
on the date this opinion becomes final as to this court. (See Cal. Rules of
Court, rule 8.264(b).) Respondent is entitled to recover costs on appeal.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
judicial notice of exhibit K, which is not opposed, but only to the extent it
indicates the proposed vaccination mandate is deferred to no earlier than
July 2023. Exhibits G, H, J, and L (news articles) are not properly subject to
judicial notice.
The court grants the unopposed request for judicial notice filed by S.V.
on May 25, 2022. The request consists entirely of California statutes, which
are subject to mandatory judicial notice. (Evid. Code, § 451, subd. (a).)
19