Since the passage of SB 276/714 there have been reports that random schools have been rejecting medical exemptions (“ME’s”). Before the pandemic, the San Diego School district hit the radar screen on the issue because of Medical Board subpoenas issued to obtain the student records of the vaccine medically exempt. That wasn’t completely successful based on a lawsuit filed (but I lost track of that case, so I do not know for sure).
Then I started hearing crazy stuff like exemptions were being rejected because the issuing doctor had died. I don’t recall seeing that in the law, but I suppose there is some convoluted argument that could be made if it was challenged in court.
Then there is the issue of transfer within the same grade span. The way I had read the statute was that students with otherwise valid grandfathered ME’s maintained their ME status upon transfer within the same grade span.
Recently, a new official interpretation of the law has been promulgated with a contrary interpretation, namely that a transfer requires and new ME.
Because of the press of other cases and something else, I haven’t looked at the new interpretation. But the other thing is that generally speaking, courts defer to the interpretation of a statute or rule handed down by the issuing government agency or the agency which has to apply it. This general concept is known as judicial deference to administrative agency interpretations.
If this new published interpretation was challenged in court, the first thing the court would look at is whether the issuing agency has the authority to issue what it issued. The second thing is whether the issuing agency followed the required process to issue it. If the issuing agency is not enforcing it, then the court would look to see that the agency following it is required or allowed to follow it, I suppose (but that seems like a given in this kind of case).
If the answer to one or two is no, (and I suppose no to three as well which is unlikely) then a court should overturn it.
If the answer is yes to both (or all three), then it’s somewhere between an steep uphill battle and next-to-impossible to overturn a regulation, order, a formal interpretation unless it contradicts the underlying statute or is arbitrary and capricious (and a bunch of unhappy people disagreeing with the interpretation does not meet that test).
Apart from a court challenge, the only and probably best way to challenge this is on a case by case basis with the school or district. I don’t know that it has or will work on the transfer issue, but Warrior Grandma Linda Jauregui (see my previous post: https://rickjaffeesq.com/2020/06/11/how-its-done/ ) has something to say about the dead doctor thing.
Here is the recent email I received from her:
I just had to follow up to share with you a victory. First I fought against the dead doctor issue, talked many times with the San Diego county immunization manager who took the time to contact the nurse and tell her she couldn’t invalidate those exemptions.
Then I went over the nurse’s head to the superintendent on the new parking lot metric. She was going to kick out my grandson going into 3rd, as well as another child going into 3rd, plus a k student who was there as a tk (and my twins next year). I sent the law and the code of law plus letters from a voice for choice and PERK. I reminded him he is the governing authority and must follow the law as written. I also found a lawyer to write a demand letter if needed and another legal team ready to investigate the case this next week. Well, he called me yesterday to tell me the district lawyers told him to follow the checkpoints as they are written in the law or it could be a mess for them. Kids get to stay in school unless they are new tk/k, 7 or without grandfathered medical
Exemption. I am now encouraging other parents to individually fight their districts and who to talk to for formal advocacy and legal help.
Will be following the UC case and Doctor Stoller case and praying for your victory. Thanks for being in the fight.
I’m guessing one or two of you might want to know who helped her out, so I asked her and here is the info:
“Her name is Lorraine from the Real League of Justice and then the attorney group is one PERK is working with, Tyler and Bursch.”
Hope this helps.
Rick Jaffe, Esq.