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Hearing set in challenge to state vaccination law

MORGANTOWN, W.Va. -- A Pickens High School senior kept out of the classroom over her refusal to get mandatory immunizations may get a chance to argue her case in court later this week.

Randolph County Circuit Court Judge Jaymie Godwin Wilfong has scheduled a hearing for 10 a.m. Friday in Elkins.

Olivia Hudok and father Phil, a retired teacher, sued the county school board and Superintendent James Phares earlier this month, demanding they grant a religious exemption allowing her in school. In the meantime, Olivia is being home-schooled by her dad.

Phares told The Associated Press on Tuesday that the district has filed a motion to dismiss the complaint, arguing the state Department of Health and Human Resources should have been a defendant, and lawsuits against state agencies must be filed in Kanawha County.

The state attorney general's office has filed two motions as well, district attorney Greg Bailey said. One seeks to intervene in the case, while the other asks the judge to dismiss because it was filed in the wrong county.

The Inter-Mountain of Elkins, which first reported the complaint, says Olivia refused to get Tdap and MCV4 boosters for religious reasons and because of concerns about toxic ingredients. The immunizations are designed to protect against tetanus, diphtheria, pertussis and meningitis.

Under a new state mandate, all seventh- through 12th-graders must have been vaccinated by Sept. 4.

Bailey said Tuesday that three similar lawsuits have been filed around West Virginia -- one each in Kanawha, Ohio and Mercer counties. All, he said, should be argued in Kanawha County.

Olivia Hudok was warned Sept. 7 and Sept. 10 that she would be denied admission to the tiny school, where she is one of only three seniors, if she failed to get proof of immunization.

The complaint her father filed says she'll "suffer irreparable harm by being denied her fundamental right to an education'' and requests an injunction barring the school district from enforcing its plan.

West Virginia and Mississippi, it notes, are the only states that currently don't recognize religious exemptions regarding vaccinations.

A county health department letter to the Hudoks calls immunization "a public health issue, not a personal freedom issue.''

"It protects everyone in the school systems and the whole community,'' wrote health officer Mary Boyd.

The letter says vaccinations work, in part, through "herd immunity,'' meaning that when a large enough percentage of the population is immune, it prevents the smaller percentage from developing infections.

"Herd immunity only works if a large percentage of the children get the vaccine,'' the letter said. "If that percentage gets lower, we will see the rate of vaccine preventable diseases increase.''

And the "herd'' at Pickens High School is small: Phares says there are just 37 students this year, including the three seniors.

If the county prevails in court, he said, it could have potentially negative implications for the school.

Should Olivia Hudok refuse to get vaccinated, the district would consider her a dropout, Phares said. That would compromise the school's "adequate yearly progress'' figures by slashing the graduation rate from the typical 100 percent to 67 percent.

"It only takes one who drops out to bushwhack all those ratings,'' he said.


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