Let Them Choose v. San Diego Unified Sch. Dist.

85 Cal.App.5th 693

301 Cal.Rptr.3d 667

LET THEM CHOOSE, Plaintiff and Respondent,

v.SAN DIEGO UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

S.V. et al., Plaintiffs and Respondents,

v.San Diego Unified School District, Defendant and Appellant.

D079906

Court of Appeal, Fourth District, Division 1, California.

Filed November 22, 2022

Atkinson, Andelson, Loya, Ruud & Romo, Mark Robert Bresee, Amy W. Estrada, Alyssa Ruiz de Esparza, La Jolla, for Defendant and Appellant.

Aannestad Andelin & Corn, Lee Michael Andelin and Arie L. Spangler, San Diego, for Plaintiff and Respondent Let Them Choose, etc.

Siri & Glimstad, Aaron Siri and Caroline Tucker for Plaintiffs and Respondents.

DATO, J.

A century ago during a smallpox epidemic, the California Supreme Court held that the Legislature may require school children to be vaccinated against that disease. ( Abeel v. Clark (1890) 84 Cal. 226, 230, 24 P. 383.) Since then, the Legislature has required students to be vaccinated for 10 diseases—but COVID-19 is not yet among them. The issue here is whether a school district may require students to be vaccinated for COVID-19 as a condition for both (1) attending in-person class, and (2) participating in extracurricular activities. The superior court determined there was a "statewide standard for school vaccination," leaving "no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates." On independent review, we reach the same conclusion and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The operative facts are few and undisputed. In September 2021, the San Diego Unified School District (District) adopted a "Vaccination Roadmap" (Roadmap) requiring students ages 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities.¹ Unvaccinated students in this group were involuntarily placed on independent study.

The Roadmap recognizes an exemption for medical reasons, but not for religious or personal beliefs.²

In October 2021, Let Them Choose filed a complaint and petition for a writ of mandate challenging the Roadmap.³ About six weeks later, a similar complaint was filed by S.V., the parent of a 16-year-old student. The cases were consolidated for trial.⁴

After conducting a hearing on motions for judgment, the court ruled that the District's COVID-19 immunization requirement is preempted by state law. It reasoned:

"I think that the state ... has fully occupied this field, there's a statewide standard, and a local school district simply doesn't have the authority to do something inconsistent with the statewide standard."

DISCUSSION

A. The Statutory and Regulatory Framework for School Vaccination

Health and Safety Code ⁵ section 120335 provides that a school "shall not unconditionally admit" a pupil who has not been vaccinated for: polio, diphtheria, tetanus, pertussis, hepatitis B, haemophilus influenzae type B (HIB), measles, mumps, rubella, and chicken pox. (§§ 120370, subd. (a)(3), 120335, subd. (b)(1)–(10).) "Each of the 10 diseases was added ... through legislative action, after careful consideration of the public health risks of these diseases, cost to the state and health system, communicability, and rates of transmission." ( Love v. State Dept. of Education (2018) 29 Cal.App.4th 980, 993, 240 Cal.Rptr.3d 861 ( Love ).) The California Department of Public Health (DPH) has adopted detailed regulations to effectuate this law. (§§ 20, 120390; Cal. Code Regs., tit. 17, § 6000 et seq. )⁶

As enacted in 1995, former sections 120365 and 120370 provided exemptions from the vaccination requirements based on personal beliefs or medical reasons. (Stats. 1995, ch. 415, p. 3003.) But in 2015, the Legislature eliminated the personal beliefs exemption for the existing 10 specified vaccinations.⁷ ( Love, supra , 29 Cal.App.5th at p. 986, 240 Cal.Rptr.3d 861.) At the same time, it also considered whether vaccination should be mandated on a school district by school district basis , or instead statewide. A bill analysis explained that a statewide standard was preferred:

"To provide a statewide standard[ ] allows for a consistent policy that can be publicized in a uniform manner, so districts and educational efforts may be enacted with best practices for each district.... Further in consultation with various health officers, they believe a statewide policy provides them the tools to protect all children equally from an outbreak." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 277 (2015–2016) as amended Apr. 22, 2015, p. 18.)⁸

Section 120335 does not specify when a student must be immunized. Regulation 6025 fills that gap. It provides that a school "shall unconditionally admit or allow continued attendance" to any pupil who has provided documentation for each immunization as set forth in one of two tables. (Id. , subd. (a).) Table A applies to students ages two months to five years old. Table B, applicable to grades Kindergarten through 12, sets forth required immunizations for school admissions:

TABLE B: CALIFORNIA IMMUNIZATION REQUIREMENTS FOR GRADES K-12

 GRADE NUMBER OF DOSES REQUIRED  OF EACH IMMUNIZATION123
  K-12 Admission                 4 Polio4          5 DTaP5     3 Help B6     2 MMR7     2 Varicella
  (7th-12th)8                    1 Tdap
  7th Grade Advancement9 10     2 Varicella10     1 Tdap8

[Editor's Note: The preceding image contains the reference for footnote⁹ ].

B. The District's COVID-19 Vaccination Mandate is Preempted by State Law

Intrastate preemption occurs when local law " ‘ " ‘ "duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication." ’ " ’ " ( T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1116, 245 Cal.Rptr.3d 412, 438 P.3d 239 ( T-Mobile West LLC ).) Local law "contradicts" state law (conflict preemption) when it " ‘directly requires what the state statute forbids or prohibits what the state enactment demands.’ " ( City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 743, 156 Cal.Rptr.3d 409, 300 P.3d 494 ( City of Riverside ).) It enters a field already occupied by state law (field preemption) "when the Legislature ‘expressly manifest[s]’ its intent to occupy the legal area or when the Legislature ‘impliedly’ occupies the field." ( O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1068, 63 Cal.Rptr.3d 67, 162 P.3d 583.) Although either would suffice, here the Roadmap is preempted on both grounds.¹⁰

1. The Roadmap Conflicts with Health and Safety Code Section 120335 and Regulation 6025 by Adding Requirements in a Manner Inconsistent with a Comprehensive Statewide Scheme

Section 120335 is phrased somewhat awkwardly in the negative—it tells a local school district what it cannot do:

"The governing authority shall not unconditionally admit any person as pupil unless , prior to his or her first admission to that institution, he or she has been fully immunized." ( § 120335, subd. (b), italics added.)

"[F]ully immunized" is defined in subdivision (b)(1) through (11) of the same statute, which identifies 10 "diseases for which immunizations shall be documented," plus "any other disease deemed appropriate by the department"¹¹ after "taking into consideration the recommendations" of several medical groups, including the Advisory Committee on Immunization Practices of the United States Department of Health and Human Services (Advisory Committee). ( § 120335, subd. (b)(11).)

On its face, section 120335 provides that a student who is not "fully immunized" within the meaning of the statute cannot be unconditionally admitted to school. No one disputes that. But what about a pupil who is fully immunized within the meaning of section 120335, but is not vaccinated for COVID-19? Reasonably construed, section 120335 speaks to that too. By creating a comprehensive state procedure to determine the compulsory vaccinations for school attendance, the statute by negative-but-necessary implication provides that students who comply with state immunization requirements (and any other eligibility rules, e.g., residency, age) are entitled to attend California schools, and the "governing authority" is not permitted to add its own vaccination mandates.¹² ( Spicer v. City of Camarillo (2011) 195 Cal.App.4th 1423, 1427, 125 Cal.Rptr.3d 357 ["[A] statute may express the law by ‘negative implication’ "].)

This conclusion follows from both the language and structure of section 120335, as well as the State Department of Public Health regulation that interprets it. It might be a different matter if the statute merely established a set of minimum vaccination requirements, leaving it to local school districts to supplement with additional immunizations they believed necessary to protect the health of the students. But section 120335 does much more than set statewide minimums. By creating a process by which new immunizations can be added to the statutory list without further legislative action, it expresses a directive that the vaccinations required for school attendance present a statewide issue subject to statewide criteria. In a nutshell, local variations must give way to a uniform state standard.

Significantly, DPH interprets the statute the same way. Citing section 120335 as its authority, regulation 6025 provides:

"A school ... facility shall unconditionally admit or allow continued attendance to any pupil ... whose parent or guardian has provided documentation ... for each immunization required for the pupil's age or grade, as defined in Table A or B of this section." (Reg., § 6025, italics added.)

Of course, the ultimate responsibility for interpreting a statute rests with courts. Nevertheless, we ordinarily defer to an agency's interpretation where it has "consistently maintained the interpretation in question, especially if it is long standing" and contemporaneous...