On Nov. 28, the U.S. 9th Circuit Court of Appeals enjoined, pending appeal, the San Diego school district's COVID vaccine mandate because it denied religious exemptions while allowing a deferral option for pregnant students. (See prior posting.) Subsequently the school district removed the deferral option for pregnant students. So in John Doe v. San Diego Unified School District, (9th Cir., Dec. 4, 2021), the court, in a 2-1 decision, held:
Given the removal of the “per se” deferral option for pregnant students, the injunction issued in the November 28, 2021 order has terminated under its own terms.
The majority rejected the claim that medical exemptions, temporary exemptions for students who are homeless, in migrant status or foster care, or in military families, and special provisions for students with Individualized Education Programs, but the absence of religious exemptions, undermine the general applicability of the vaccine mandate.
Judge Ikuta dissented, arguing that these secular exemptions mean that the mandate is not generally applicable and thus must be evaluated under the strict scrutiny standard, saying in part:
These religious and secular activities pose identical risks to the government’s asserted interest in ensuring the “safest environment possible for all students and employees,” because both result in the presence of unvaccinated students in the classroom, who could spread COVID-19 to other students and employees.
Plaintiff's attorney has said that emergency relief will be sought from the U.S. Supreme Court.
UPDATE: Here is plaintiffs' Petition for emergency relief from the Supreme Court, asking for an injunction or stay pending appeal.
