Bluefield Daily Telegraph, Bluefield, WV

October 6, 2012

Mercer Circuit Court: Student objecting to mandatory vaccination has right to be home schooled

Bluefield Daily Telegraph

PRINCETON — A Mercer County student whose family objected to new mandatory vaccinations will be schooled at home while a Kanawha County court decides the vaccination issue, the student’s attorney said Friday.

A hearing was conducted on Sept. 25 in Mercer County Circuit Court concerning whether a student had to take two new state-mandated vaccinations, said the student’s attorney, Patrick Lane.

“Within a few hours, we got phone calls from the court stating that the board of education was going to be ordered to provide education because the child has a fundamental right to education under our West Virginia Constitution,” Lane told the Bluefield Daily Telegraph. “Because of the judge’s caseload, it took a few days to draft the order.”

“The upshot of the order is the court found that the student does have a fundamental right to an education and the board must provide education to the student,” Lane said. “We had to show that we are more than likely to succeed on the underlying merits of the case just to get the injunction.”

The local ruling is not directly related to the other case in which the student’s family argues that the state Department of Health and Human Resources does not have the authority to adopt a rule forcing immunization without going through the legislative rule-making process, Lane said. Under state law, that case must be filed in Kanawha County since it deals with a state agency. The case has been filed in Kanawha County Circuit Court, but Lane did not know when a judge there would hear the case.

“The question about the immunizations themselves, whether the DHHR has the authority to make them compulsory, is still being litigated in Kanawha County,” Lane said.

There are specified immunizations students must have before they attend school. Two new vaccinations were added this year, Superintendent Deborah Akers of Mercer County Schools said earlier this week. One new vaccination is required for seniors, and another is given to seventh-grade students.

Seniors are given a vaccine dubbed Tdap, which covers immunization against whooping cough, tetanus, diphtheria and pertussis. Seven-grade students are given the MCV vaccine, which guards against meningococcal, a leading cause of bacterial meningitis, according to the Centers for Disease Control.

The Mercer County student in the recent court case was scheduled to enter the seventh grade, Lane said.

Mercer County school officials were not available for comment Friday.