Baker v. USD 229 Blue Valley

979 F.3d 866

Terri E. BAKER, Plaintiff - Appellant,

v.USD 229 BLUE VALLEY; Lee A. Norman; Derek Schmidt ; Laura Kelly, Defendants - Appellees.

No. 20-3054

United States Court of Appeals, Tenth Circuit.

FILED November 3, 2020

Linus L. Baker, Stilwell, Kansas, for the Plaintiff – Appellant.

Stephanie Lovett-Bowman, (W. Joseph Hatley, Angus W. Dwyer, with her on the brief), Spencer Fane LLP, Kansas City, Missouri, for USD 229 Blue Valley, Defendant – Appellee.

Arthur S. Chalmers, Assistant Attorney General, (Derek Schmidt, Attorney General, with him on the brief), Topeka, Kansas, for Lee A. Norman, Derek Schmidt, and Laura Kelly, Defendants – Appellees.

Before MATHESON, McHUGH, and EID, Circuit Judges.

MATHESON, Circuit Judge.

Terri Baker appeals the dismissal of this putative class action for lack of standing. She sued on behalf of herself and her son, S.F.B., to challenge Kansas laws and school district policies that (1) require children to be vaccinated to attend school and participate in child care programs, and (2) provide a religious exemption from these requirements. She claims these immunization laws and policies violate various federal and state constitutional provisions and statutes.

Ms. Baker named as defendants the Blue Valley Unified School District No. 229 ("District"), where S.F.B. attended preschool during the 2018-2019 and 2019-2020 school years, and three Kansas officials in their official capacities: Laura Kelly, Governor of Kansas; Derek Schmidt, Kansas Attorney General; and Lee Norman, Secretary of the Kansas Department of Health and Environment ("KDHE") (collectively, "Kansas Officials"). The KDHE is responsible for implementing and enforcing immunization laws, and it licenses school programs, child care facilities, and preschools.

The District and Kansas Officials (collectively, "Appellees") moved to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The district court granted these motions and dismissed this action without prejudice, holding that Ms. Baker had not satisfied the injury-in-fact requirement to have standing to sue under Article III of the Constitution.

On appeal, Ms. Baker argues that she and S.F.B. have standing because the immunization requirements and religious exemptions injure them in two ways.

First, she asserts the District misapplied Kansas law when it granted a religious exemption for S.F.B. to attend preschool despite being unvaccinated. She contends her fear that the District will revoke S.F.B.’s religious exemption is an injury in fact that establishes standing.

Second, Ms. Baker "would like the option" of placing S.F.B. in a non-accredited private school (i.e., home school),¹ school programs, or licensed child care. App. at 180. She contends that Kansas law inhibits her from exercising these "options" and causes an injury in fact because she would be unable to secure a religious exemption for S.F.B. if she tried.

Exercising appellate jurisdiction under 28 U.S.C. § 1291, we reject these arguments and affirm.

I. BACKGROUND

A. Kansas Laws and District Policies

1. Kansas Vaccination Laws

Kansas law requires children in schools and child care facilities to be vaccinated unless a medical exemption or a religious exemption applies. Ms. Baker's claims concern the religious exemption. The school facility religious exemption and the child care facility religious exemption differ slightly.

First, Kan. Stat. § 72-6262 requires, "In each school year, every pupil enrolling or enrolled in any school for the first time in this state, and each child enrolling or enrolled for the first time in a preschool or day care program operated by a school, ... prior to admission to and attendance at school ... shall present to the appropriate school board certification" that the pupil has been vaccinated. Kan. Stat. § 72-6262(a). To qualify for a religious exemption, a pupil must submit "a written statement signed by one parent or guardian that the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations." Id. § 72-6262(b)(2) (emphasis added). A school board may deny enrollment to a pupil who fails to comply with Kan. Stat. § 72-6262. See id. § 72-6265(a).

Second, Kan. Stat. § 65-508 requires children in child care facilities to be vaccinated. The person who manages a child care facility must maintain immunization records. A religious exemption may be made if the person managing a child care facility "obtain[s] ... a written statement signed by a parent or guardian that the parent or guardian is an adherent of a religious denomination whose teachings are opposed to immunizations." Kan. Stat. §§ 65-508(h), 65-508(h)(2) (emphasis added).

2. District Policies

Ms. Baker also appears to challenge two District policies that implement Kansas law. Blue Valley School Board Policy 2700 states that "[p]arents may object to mandatory vaccinations due to religious beliefs." App. at 74. Policy 3113.2 states that "Kansas law provides the following alternatives to immunization: ... a written statement signed by one parent or guardian that the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations." Id. at 46.

B. Allegations in the First Amended Complaint

The first amended complaint alleged as follows. Ms. Baker "has long been of the Christian faith." App. at 177. She uses "holistic and dietary remedies" for her health and has taught her children "her understanding of Biblical holistic dietary and medical treatment." Id. at 177. She holds "sincere religious convictions" about vaccine risks, the use of vaccines "using cell lines from tissue harvested from abortions," and the use of vaccines containing gelatin. Id. She wishes to raise S.F.B. according to her "spiritual values." Id. at 182. She also believes that S.F.B., at his current age and due to a disability, is incapable of forming religious beliefs, communicating them, or adhering to a religious denomination.

S.F.B. has never been vaccinated. He thus cannot attend school unless he receives a religious or medical exemption. Before the 2018-2019 school year, Ms. Baker and Linus Baker (collectively, the "Bakers"), submitted the following statement to the District to claim a school religious exemption for S.F.B.:

In response to our inquiry about an immunization exemption for [S.F.B.] in order to attend [elementary school], you directed us to write a letter stating it is against our religion . [Ms. Baker] and I make that statement in this letter. We also acknowledge that the school nurse has a policy that if there is an outbreak of a vaccine-preventable disease, that [S.F.B.] will not be permitted to attend school until 21 days after the last case of outbreak.

App. at 185 (first alteration in original) (emphasis added).

Although the Bakers did not expressly state that S.F.B. was an adherent of a religious denomination under Kan. Stat. § 72-6262(b)(2), the District accepted the Bakers’ statement and granted a school religious exemption for S.F.B. S.F.B. remains unvaccinated and has since attended a preschool in the District without incident.

The amended complaint alleged that because the Bakers’ statement to the District did not expressly state that S.F.B. was an adherent of a religious denomination, the statement was deficient under Kan. Stat. § 72-6262(b)(2). She therefore contended the District erred in granting S.F.B. a religious exemption, and she fears the District will revoke it.

Also, Ms. Baker "would like the option" of "enrolling S.F.B. in a non-accredited private school" (i.e., a home school), "school programs," and/or "licensed child care." App. at 180. She anticipated a denial of a religious exemption under Kansas law if she tried to enroll S.F.B. in one of those options.

Ms. Baker's first amended complaint listed 18 counts alleging violations of various federal and state constitutional provisions and statutes, including claims under the First Amendment Establishment Clause and the Fourteenth Amendment Equal Protection Clause. Concurrently with filing her complaint, Ms. Baker moved for a preliminary and/or permanent injunction.

C. Procedural History

The District and the Kansas Officials filed motions to dismiss the complaint. In support of its motion, the District submitted (1) a declaration by Dr. Mark Schmidt, the District's Assistant Superintendent of Special Education who oversees the District's health services department ("Schmidt Declaration"); and (2) a 2012 opinion by the Kansas Attorney General interpreting the school religious exemption ("Kansas AG Opinion"). In support of their motion, the Kansas Officials submitted a declaration by Ashley Goss, the KDHE's Deputy Secretary for Public Health, who oversees vaccination requirements for child care facilities ("Goss Declaration").

While these motions were pending, Ms. Baker, with leave from the court, filed a first amended complaint that added class action allegations. She then moved for certification of an injunctive-relief-only class under Federal Rule of Civil Procedure 23(b)(2).

The district court addressed the motions in a single order. It found that Ms. Baker had not demonstrated an injury in fact and thus lacked Article III standing. The court granted the motions to dismiss, dismissed the action without prejudice, and denied the other motions as moot. Ms. Baker timely appealed.

II. DISCUSSION

We affirm the district court's decision dismissing Ms. Baker's action without prejudice because Ms. Baker did not demonstrate an injury in fact that supports Article III standing. After setting forth applicable legal standards, we examine Ms. Baker's standing theories in two sections.

First, we evaluate Ms. Baker's injury argument that the District may revoke S.F.B.’s religious exemption because Kansas law compels that result. We find that Ms. Baker has not shown a concrete, imminent, and non-speculative injury in fact.

Second, we consider Ms. Baker's contention...