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Kanawha judge dismisses W.Va. school vaccination lawsuit

CHARLESTON, W.Va. -- A Kanawha County judge has dismissed a lawsuit challenging statewide rules that require West Virginia students to be vaccinated before they can attend class.

Circuit Judge Tod Kaufman ruled Wednesday that the state Department of Health and Human Resources has the authority to enforce school vaccination rules without approval from the state Legislature.

Earlier this year, the nonprofit group We The Parents asked Kaufman to grant a preliminary injunction that would allow three students in Randolph, Ohio, and Mercer counties to attend public school without the state-mandated inoculations against mumps, tetanus, hepatitis and other contagious diseases.

Judges in those counties ordered schools to pay for homebound instruction for the students until the case against DHHR officials in Kanawha County played out.

Under the department's rule, incoming seventh-graders and 12th-graders must show proof they have received one dose of vaccines against meningitis, tetanus, diphtheria and pertussis. Incoming 12th-graders must show proof they received booster doses after age 16. 

The vaccinations are recommended by the Centers for Disease Control and Prevention.

Booster shots for Tdap are necessary to meet the Legislature's directive to protect students from these diseases, Kaufman said.

He also said vaccination requirements for meningitis, as well as Hepatitis B and varicella, are valid under a state Board of Education rule. The school board, whose rules do not require legislative approval, requires students to be in compliance with the immunization schedule set by the Bureau of Public Health commissioner.

Kaufman noted that these vaccinations are recommended by the Advisory Committee on Immunization Practices, a 15-member group of experts selected by the U.S. Department of Health and Human Services secretary.

"The rule is entitled to substantial deference as it represents the best judgment of a national group with undoubted expertise and experience whose judgments are vetted before the public,'' Kaufman wrote.

Patrick Lane, a lawyer representing We The Parents, said Wednesday that the cases in other parts of the state may remain on hold if his clients decide to appeal Kaufman's decision. If We The People decide not to appeal, Lane said, then the school officials will continue a struggle to prove that they should not have to pay for the home schooling of children who refuse vaccination.

But Lane, a Republican member of the House of Delegates from Kanawha County, said he doesn't believe it will come to that. He said state laws outline a child's "fundamental right to education," and that children expelled for bringing a gun to school, for instance, must be provided county-funded alternative schooling.

"I would be shocked if the [state] Supreme Court would say a kid who brings a gun to school has more of a fundamental right to education than a child who does not have a hepatitis shot," Lane said.

We the People is a state-based group made up of parents who, for religious, moral or health reasons, decide not to vaccinate their children, according to the group's website.

"Parents whose religious or moral code does not align with fully vaccinating their children and parents who have researched vaccines and choose to make educated, informed decisions are locked out of the school system and forced to home school or drive to a neighboring state where non-medical exemptions are permitted," the website states.

A We The People representative did not return a phone call placed Wednesday afternoon. Assistant Attorney General Charlene Vaughan and Senior Assistant Attorney General Scott E. Johnson, representing the DHHR, also could not be reached for comment.

The Associated Press contributed to this report. Reach Zac Taylor at zachary.taylor@wvgazette.com or 304-348-5189.


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