Children's Health Rights of Massachusetts, Inc. v. Belmont Public School District

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22-P-754 Appeals Court

CHILDREN'S HEALTH RIGHTS OF MASSACHUSETTS, INC. vs. BELMONT

PUBLIC SCHOOL DISTRICT & another.1

No. 22-P-754.

Bristol. March 2, 2023. – June 23, 2023.

Present: Vuono, Sullivan, & Singh, JJ.

School and School District. Public Health, Immunization.

Constitutional Law, Standing. Practice, Civil, Standing,

Preliminary injunction. Declaratory Relief.

Civil action commenced in the Superior Court Department on

February 16, 2022.

A motion for a preliminary injunction was heard by William

M. White, Jr., J.

Brian Unger for the plaintiff.

Megan B. Bayer for Belmont Public School District.

Nina L. Pickering-Cook for Cambridge Public School

District.

1 Cambridge Public School District. Because the name of

this defendant is unclear, we use the defendant's name as it

appears in the Superior Court complaint.

2

SULLIVAN, J. Children's Health Rights of Massachusetts,

Inc. (CHRM) appeals from an order denying its motion for a

preliminary injunction, a motion that sought to enjoin COVID-19

vaccination policies to the extent applicable to participation

in extracurricular activities in the public schools in the town

of Belmont and the city of Cambridge.2 We affirm.

Background. The allegations of the verified complaint are

as follows. CHRM is a Massachusetts nonprofit corporation whose

members include parents of children who attend the Belmont and

Cambridge public schools (school districts). In October 2021,

each of the school districts approved a policy requiring all

age-eligible students to receive a COVID-19 vaccine approved by

the Food and Drug Administration as a condition of participation

in extracurricular activities. Under each school district's

policy, students aged twelve and over who were not vaccinated

were barred from participating in extracurricular activities.

The vaccination policies included medical and religious

exemptions, as well as other exemptions.

CHRM filed its verified complaint and contemporaneous

motion seeking a declaratory judgment and injunctive relief

2 The motion was brought as a motion for a temporary

restraining order or, in the alternative, a preliminary

injunction. We treat this as a denial of a motion for

preliminary injunction for purposes of our appellate

jurisdiction. G. L. c. 231, § 118, second par.

3

pursuant to G. L. c. 231A, § 2. CHRM alleged that (1) the

school districts lacked authority to pass what it described as

vaccine mandates, (2) the policies were preempted by the

Department of Public Health's infectious disease regulatory

scheme, and (3) the policies violated parents' rights to due

process and to direct the care of their children under art. 1

and art. 12 of the Massachusetts Declaration of Rights. A judge

of the Superior Court denied the motion for the reason that,

among others, CHRM did not "identify a plaintiff member, or

child of the plaintiff's membership who was harmed by the

policies of either defendant."

Discussion. "We review the grant or denial of a

preliminary injunction to determine whether the judge abused

[his] discretion, that is, whether the judge applied proper

legal standards and whether there was reasonable support for

[his] evaluation of factual questions." Lieber v. President &

Fellows of Harvard College (No. 2), 488 Mass. 816, 821 (2022),

quoting Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741

(2008). "A preliminary injunction will not be granted if the

moving party cannot demonstrate a likelihood of success on the

merits." Lieber, supra at 821-822.

4

The motion was decided on the verified pleadings and

affidavits submitted by the school districts.3 On appeal CHRM

asserts that it has two bases for standing. First, CHRM

contends that no showing of injury is required because it has

raised constitutional claims. Second, CHRM claims it has

associational standing because its members include the parents

of children who are subject to the school districts' policies.

"The declaratory judgment act, G. L. c. 231A, § 1,

authorizes courts to make 'binding declarations of right, duty,

status and other legal relations,'" Kligler v. Attorney Gen.,

491 Mass. 38, 44-45 (2022), and "may be used in the superior

court to enjoin and to obtain a determination of the legality of

the administrative practices and procedures of any

municipal . . . agency or official wh[en] practices or

procedures are alleged to be in violation of the Constitution of

the United States or of the constitution or laws of the

commonwealth," G. L. c. 231A, § 2. However, "[s]uch relief is

appropriate only if a plaintiff can demonstrate . . . the

requisite legal standing to secure its resolution" (quotation

and citations omitted). Kligler, supra at 44.

3 CHRM did submit affidavits, subject to a motion to strike,

as to which there was no ruling evident on the docket. The

affidavits challenged the efficacy and safety of the vaccines

but did not contain facts that showed an injury to members of

CHRM or their children.

5

"It is settled that G. L. c. 231A does not provide an

independent statutory basis for standing." Enos v. Secretary of

Envtl. Affairs, 432 Mass. 132, 135 (2000). This principle

applies with equal force to constitutional claims. "A party has

standing when it can allege an injury within the area of concern

of the statute, regulatory scheme, or constitutional guarantee

under which the injurious action has occurred." Doe No. 1 v.

Secretary of Educ., 479 Mass. 375, 386 (2018). While standing

under the declaratory judgment act is to be "liberally construed

and administered," G. L. c. 231A, § 9, CHRM must, for purposes

of a motion for a preliminary injunction, demonstrate a

likelihood of success on the merits that one of its members is

at actual risk of harm. Declaratory judgment "proceedings are

concerned with the resolution of real, not hypothetical,

controversies; the declaration issued is intended to have an

immediate impact on the rights of the parties." Galipault v.

Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 84 (2005), quoting

Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v.

Commissioner of Ins., 373 Mass. 290, 292 (1977). CHRM's claims

properly fall within the ambit of G. L. c. 231A, but it is

incorrect in its assertion that it need not allege or show a

particularized injury.

"Where a nonprofit organization asserts associational

standing on behalf of its members, it must establish that its

6

members would independently have standing to pursue the claim."

Statewide Towing Ass'n, Inc. v. Lowell, 68 Mass. App. Ct. 791,

794 (2007).4 Here, the sole allegation of the complaint is that

"CHRM has members in its organization who have children in the

Cambridge and Belmont Public School Districts and are subject to

the Districts' vaccine mandates." CHRM has not alleged that any

of its members' children were harmed or are at risk of harm.

There are no allegations that unwilling parents were compelled

to vaccinate their children in order that the children might

participate in extracurricular activities, that any children

were excluded from extracurricular activities due to their

vaccination status, that any parent applied for and was denied

an exemption from the vaccination requirements, that any parent

applied for and was denied a waiver of either policy, or that

any member of CHRM has a child who wants to participate in

extracurricular activities and will be prevented from doing so

by either policy.

Relying on Entergy Nuclear Generation Co. v. Department of

Envtl. Protection, 459 Mass. 319, 326-327 (2011) (Entergy), our

dissenting colleague posits that if the parents and children

here are subject to policies that the municipalities are without

4 CHRM has not claimed that it suffered a direct injury as

an entity. Cf. Service Employees Int'l Union, Local 509 v.

Department of Mental Health, 469 Mass. 323, 329 (2014) (labor

union claimed direct injury to its statutory right to bargain).

7

authority to promulgate, the parents should not be put to the

choice of vaccinating a child whom they do not wish to vaccinate

or risking the child's exclusion from extracurricular

activities. Even if we were to agree, the complaint still does

not contain even a general allegation that any member of CHRM

has a child who wants to participate in extracurricular

activities and will be prevented from doing so by either policy.5

In the absence of an allegation that there is even one child

from each municipality who is not only covered by the policy,

but wants to participate in extracurricular activities without

5 In Entergy, 459 Mass. at 326, the defendant did not

contest standing. In dicta, the Supreme Judicial Court stated

that the nuclear power plant operator had standing to challenge

a regulation asserting the authority of the Department of

Environmental Protection to regulate components of industrial

facilities that withdraw water from surface waterbodies under

the Clean Waters Act, G. L. c. 21, §§ 26–53. The court

concluded that, as a regulated entity, Entergy had standing to

challenge a regulation that "affects the party's primary conduct

even if that regulation has not been enforced against that

party," because "[p]arties clearly targeted by a regulation

should not be precluded entirely from challenging its legality."

Entergy, supra at 327. We do not think the dicta in a case

involving a highly regulated industry is applicable to the

promulgation of a school policy involving public health and

safety. Moreover, in this case, the population of children

"targeted" by the policies are those who wish to participate in

extracurricular activities. For this reason, it is appropriate

to require that the plaintiff allege that there is at least one

child of a member parent in each municipality who wants to

participate in extracurricular activities but will be prevented

from doing so by the applicable policy.

8

being vaccinated, the verified complaint failed to establish

standing.

"Persons who ask a court to 'assume the difficult and

delicate duty of passing upon the acts of a coordinate branch of

the government' must demonstrate that they suffer or are in

danger of suffering some particularized legal harm." Local

1445, United Food & Commercial Workers Union v. Police Chief of

Natick, 29 Mass. App. Ct. 554, 559 (1990), quoting Kaplan v.

Bowker, 333 Mass. 455, 459 (1956). CHRM's failure to allege any

particularized harm or risk of harm to its members bars its

claim of associational standing.

The order denying the motion for a preliminary injunction

is affirmed.6

So ordered.

6 In light of our disposition, we need not rule on the town

of Belmont's argument that, because it has suspended its policy,

the case is moot as to it.

SINGH, J. (dissenting). The plaintiff appeals from the

denial of its motion to preliminarily enjoin the Belmont and

Cambridge public school districts (school districts) from

enforcing COVID-19 vaccine policies enacted by them, while

seeking a declaration regarding the validity of those policies.

I disagree that the judge's decision must be affirmed on the

basis that the plaintiff has failed to establish standing.1

By its complaint, the plaintiff seeks a declaration that

the school districts have exceeded their authority2 in mandating

that all age-eligible school children in their districts receive

COVID-19 vaccines or else be excluded from extracurricular

activities. The Cambridge school district policy states that,

by a date certain, "all age eligible students must be

vaccinated." Both of the school district policies prohibit

unvaccinated students from participating in extracurricular

activities, which may include athletics, student government,

visual and performing arts, clubs, and social events.

Standing to seek declaratory relief "exists where a party

alleges a legally cognizable injury within the area of concern

1 In his ruling, the judge did not mention "standing," but

did refer to the absence of identified harmed parties.

2 The verified complaint generally alleges that school

committees have only limited authority to enact student health

policies (which authority does not include imposing vaccine

requirements) and that the area of student vaccine requirements

is preempted by regulations enacted by public health agencies.

2

of the statute at issue." Entergy Nuclear Generation Co. v.

Department of Envtl. Protection, 459 Mass. 319, 326 (2011)

(Entergy). Here, the verified complaint alleges that members of

the plaintiff nonprofit corporation have children in the school

districts who "are subject to the Districts' vaccine mandates,"

and "those mandates apply to [plaintiff] members' children."

These allegations establish that the plaintiff's interest is

within the area of concern of the policy at issue. See id. at

326-327 (as party regulated by State Clean Waters Act,

plaintiff's interest clearly fell within act's area of concern).

Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-562 (1992)

(when suit is one challenging legality of government action,

nature and extent of facts that must be averred in order to

challenge standing depends considerably upon whether plaintiff

is himself object of action; if he is, there is ordinarily

little question that action has caused him injury).

The verified complaint further alleges that the COVID-19

vaccine policies adopted by the school districts violate the

parents' constitutional rights to direct the care and upbringing

of their children, including the right to make health care

decisions for their children.3 These allegations suffice to make

3 The verified complaint cites to State and Federal case law

indicating that these rights are rooted in the State and Federal

Constitutions.

3

out a legally cognizable injury. That the verified complaint

does not allege that any child of plaintiff members was excluded

from any extracurricular activity does not deprive the plaintiff

of standing to challenge the school districts' authority to

promulgate such policies. See Entergy, 459 Mass. at 327

("regulated party has standing to challenge the promulgation of

a regulation that affects the party's primary conduct even if

that regulation has not been enforced against that party"). Cf.

Abbott Labs. v. Gardner, 387 U.S. 136, 151 (1967) (plaintiffs

subject to regulation had standing to challenge it even though

Attorney General had yet to authorize criminal and seizure

actions for violation of relevant statute).

Parents of a child in a school district that mandates a

COVID-19 vaccine in order for the child to participate in

extracurricular activities are faced with a dilemma if the

parents do not believe that it is in the best interests of their

child to receive such a vaccine: allow the child to be

vaccinated against their better judgment in order to secure for

their child the full public school educational experience,

complete with athletics, student government, musical groups,

clubs, plays, dances, homecoming and prom; or maintain their

judgment not to have the child vaccinated and thereby deprive

the child of all of these experiences that their vaccinated

classmates are privileged to enjoy. If the school districts, in

4

fact, have no authority to promulgate such policies, then the

parents should not have to face this dilemma. See Entergy, 459

Mass. at 327 (court observed that, if plaintiff had no standing

to challenge regulation, it would either have to comply with

requirement it believed unlawfully imposed, potentially to its

financial detriment, or violate requirement and face penalties,

and noted that "[o]ur laws on standing are not intended to

produce such a Hobson's choice").

The standing requirement for a declaratory judgment action

is to be "liberally construed," in order to effectuate its

purpose, which is "to remove, and to afford relief from,

uncertainty and insecurity with respect to rights, duties,

status and other legal relations." G. L. c. 231A, § 9. See

Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v.

Commissioner of Ins., 373 Mass. 290, 292 (1977). "[T]he

declaration issued is intended to have an immediate impact on

the rights of the parties." Id. Here, a declaration concerning

the authority of the school districts to enact their COVID-19

vaccine policies would remove, and afford relief from,

uncertainty and insecurity with respect to these policies and

would have an immediate impact on the rights of the parties.

See Lujan, 504 U.S. at 561-562 (when suit is brought by one who

is object of challenged government action, there is ordinarily

5

little question that judgment preventing action will redress

it).

The school districts' policies at issue in this case

mandate that "all age eligible students must be vaccinated."

The targets of the policies are "all age eligible students" and

punishment for noncompliance is exclusion from extracurricular

activities. The complaint seeks to invalidate the entire

policies, and not simply the punishment. All age-eligible

students required to get the vaccine are targets of the

policies. Cf. Abbott Labs., 387 U.S. at 154 ("there is no

question in the present case that petitioners have sufficient

standing as plaintiffs: the regulation is directed at them in

particular"). "Parties clearly targeted by a regulation should

not be precluded entirely from challenging its legality."

Entergy, 459 Mass. at 327. As the plaintiff consists of members

who have children in the school districts who are subject to the

policies, and who are the very targets of the policies, the

plaintiff has standing to challenge the policies alleged to have

been enacted in an excess of authority.

I respectfully dissent.