John Doe v. San Diego Unified School Dist ( 2022 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE, an individual; JANE DOE, No. 21-56259
individually and as parent and next friend of
Jill Doe, a minor child; JILL DOE, a minor D.C. No.
child, by and through her next friend, Jane 3:21-cv-01809-CAB-LL
Doe, Southern District of California,
San Diego
Plaintiffs-Appellants,
ORDER
v.
SAN DIEGO UNIFIED SCHOOL
DISTRICT; RICHARD BARRERA, in his
official capacity as Board President;
SHARON WHITEHURST-PAYNE, in her
official capacity as Board Vice President;
MICHAEL MCQUARY, in his official
capacity as Board member; KEVIN BEISER,
in his official capacity as Board member;
SABRINA BAZZO, in her official capacity
as Board member; LAMONT JACKSON, in
his official capacity as Interim
Superintendent,
Defendants-Appellees.
Before: BERZON, IKUTA, and BENNETT, Circuit Judges.
The majority of the panel has voted to deny appellants’ motion for
reconsideration en banc. Judge Berzon and Judge Bennett have voted to deny the
motion for reconsideration en banc. Judge Ikuta has voted to grant the motion for
reconsideration en banc.
The full court has been advised of the motion for reconsideration en banc. A
judge of the court requested a vote on en banc rehearing. The majority of the
active judges have voted to deny rehearing the matter en banc. Fed. R. App.
P. 35(f).
The motion for reconsideration en banc is DENIED. Judge Bumatay’s
dissent from the denial of rehearing en banc, Judge Berzon and Judge Bennett’s
concurrence in the denial of reconsideration en banc, Judge O’Scannlain’s
statement respecting the denial of rehearing en banc, Judge Bress’s dissent from
the denial of rehearing en banc, and Judge Forrest’s dissent from the denial of
rehearing en banc are filed concurrently herewith.
Judge Owens did not participate in the deliberations or vote in this case.
2
FILED
JAN 14 2022
John Doe, et al. v. San Diego Unified School District, No. 21-56259 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BUMATAY, J., Circuit Judge, with whom CALLAHAN, IKUTA, R. NELSON,
COLLINS, LEE, and VANDYKE, Circuit Judges, join, dissenting from the denial
of rehearing en banc:
Here we go again. When it comes to dealing with the COVID-19 crisis, the
“Supreme Court’s instructions have been clear, repeated, and insistent: no COVID-
19 restriction can disfavor religious practice.” Tandon v. Newsom, 992 F.3d 916,
939 (9th Cir. 2021) (Bumatay, J., dissenting in part and concurring in part). The
Supreme Court has again and again admonished this court for failing to follow its
guidance. Indeed, almost a year ago, the Court expressed frustration that, for the
“fifth time,” it had to “summarily reject[] the Ninth Circuit’s analysis of California’s
COVID restrictions on religious exercise.” Tandon v. Newsom, 141 S. Ct. 1294,
1297 (2021) (per curiam) (emphasis added). With this case, our court is gunning for
a sixth.
Jill Doe is a 16-year-old student-athlete at a public high school in San Diego,
California. She plays multiple sports and hopes to earn a college sports scholarship
by excelling at those sports during the upcoming semester. In addition to being an
avid athlete, Jill is devoted to her Christian beliefs. While Doe has developed natural
immunity to COVID-19 from a prior infection, her religious beliefs forbid her from
receiving any of the COVID-19 vaccines. But the San Diego Unified School District
has implemented a COVID-19 vaccine mandate for its students. That mandate
requires all students over the age of 16 to be vaccinated by January 4, 2022, or be
1
banned from attending school in-person starting January 24. While the mandate has
plenty of secular exemptions, it expressly prohibits religious exemptions.
Jill appeals to this court to protect her religious convictions. She requests that
we enjoin enforcement of the District’s vaccine mandate against her before January
24; otherwise, she will be forced into an online, independent study program and
isolated from her teachers and classmates. If she does not succumb to the mandate
and violate her religious beliefs, she will be barred from campus and from playing
on any school sports teams. All this while thousands of other unvaccinated students
will continue to attend San Diego public schools under secular exemptions.
We should not have turned our back on Jill. Our duty is always to safeguard
the people’s rights no matter the challenges facing our communities. And the right
to the free exercise of religion is foremost among our freedoms. It should go without
saying—the Constitution protects Jill Doe’s religious liberty even in times of crisis.
Because the government should never force a student to choose between her
religious beliefs and her education unless such a restriction is the least restrictive
means of achieving a compelling government interest, we should have enjoined the
application of the District’s vaccine mandate in this case.
Today, our court failed Jill Doe on several grounds. But our crucial error was
applying the wrong legal framework to her claim. Tandon teaches us that COVID-
19 regulations trigger strict scrutiny “whenever they treat any comparable secular
2
activity more favorably than religious exercise.” 141 S. Ct. at 1296. Yet the
District’s vaccine mandate not only has numerous comparable secular exemptions,
but expressly prohibits exemptions for the religious. That alone should trigger strict
scrutiny.
Instead, our court rubberstamps the District’s mandate—opting for the anemic
rational basis review. Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1177 (9th
Cir. 2021). We get there by blindly accepting the District’s characterizations of its
secular exemptions, denying the comparability of the religious exemptions, and
speculating about the risks of allowing those with religious exemptions to continue
to attend class on campus. Id. at 1177–80. But these reasons cannot support the
infringement of a fundamental freedom.
Our court’s decision once again disregards Supreme Court precedent and
threatens the religious liberty of tens of thousands of students in one of the largest
counties in the United States. We should have granted en banc review to correct this
grievous mistake before being told to do so yet again.1
1
Separate parties have obtained a “tentative” writ of mandate preventing
implementation of the District’s vaccine mandate under state law. Let Them Choose
v. San Diego Unified Sch. Dist., No. 37-2021-43172-CU-WM-CTL (Cal. Super. Ct.
Dec. 20, 2021) (“SDUSD’s attempt to impose an additional vaccine mandate and
force students . . . who defy it into non-classroom-based independent study directly
conflicts with state law.”). Yet, as the Supreme Court of California has not
definitively resolved this issue, it remained our duty to fix our erroneous decision.
3
I.
A.
The First Amendment commands that government “shall make no law . . .
prohibiting the free exercise [of religion].” U.S. Const. amend. I. In responding to
COVID-19, that means governments may not “single[] out religion for worse
treatment than . . . secular activities.” South Bay United Pentecostal Church v.
Newsom, 141 S. Ct. 716, 719 (2021) (statement of Gorsuch, J.) (joined in relevant
part by four other Justices). “When a State so obviously targets religion for
differential treatment,” courts must apply the most exacting scrutiny. Id. at 717.
Last year, California enacted a set of COVID-19 restrictions that “openly imposed
more stringent regulations on religious institutions than on many businesses.” Id.
Five justices of the Court found that this type of naked targeting of religion required
strict scrutiny. Id. at 717–18.
In Tandon, the Court provided a framework for evaluating COVID-19-related
restrictions:
First, “government regulations are not neutral and generally applicable . . .
whenever they treat any comparable secular activity more favorably than religious
exercise.” 141 S. Ct. at 1296 (emphasis in original). And it is “no answer” that the
government treats some secular activity “as poorly as or even less favorably than the
religious exercise at issue.” Id.
4
Second, “whether two activities are comparable for purposes of the Free
Exercise Clause must be judged against the asserted government interest that
justifies the regulation at issue.” Id. (simplified). In judging comparability, we must
look at the “risks various activities pose,” not the purported reasons for the
distinctions. Id. Thus, government regulations cannot treat secular activities more
favorably when they “‘contribute[] to the spread of COVID–19’ or . . . present[]
similar risks” as religious activities. Id. (quoting Roman Catholic Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 67–68 (2020) (per curiam)).
Third, if a regulation is not neutral and generally applicable, “the government
has the burden to establish that the challenged [regulation] satisfies strict scrutiny.”
Id. To do so, the government “must do more than assert that certain risk factors ‘are
always present in worship, or always absent from the other secular activities’ the
government may allow.” Id. (quoting South Bay, 141 S. Ct. at 718 (statement of
Gorsuch, J.)). Instead, strict scrutiny requires “narrow tailoring” and proof that “less
restrictive” measures could not achieve the interest in reducing the spread of
COVID-19. Id. at 1296–97. “Where the government permits other activities to
proceed with precautions, it must show that the religious exercise at issue is more
dangerous than those activities even when the same precautions are applied.
Otherwise, precautions that suffice for other activities suffice for religious exercise
too.” Id. at 1297.
5
Fourth, even if the “government withdraws or modifies a COVID restriction
in the course of litigation, that does not necessarily moot the case.” Id.
B.
The District’s vaccine mandate expressly forbids exemptions for religious
students:
Under San Diego Unified’s vaccine mandate for students who are 16
and older as of November 1, 2021, students who are not fully
vaccinated by December 20, 2021 will transition from in-person
learning to an independent study program at the start of the new
semester and quarter on January 24, 2022. . . .
All students 16 and older who are eligible for the COVID-19 vaccine
under the district mandate are required to be vaccinated, excluding
those with qualified exemptions or conditional admissions. San Diego
Unified does not allow religious exemptions for this particular
vaccine. 2
But the District provides at least four secular exemptions to its vaccine
mandate: it allows a student to avoid vaccination if she (1) turns 16 after November
1, 2021; (2) has a medical exemption; (3) is a “conditional student” who has recently
been admitted; or (4) has an individualized education program (“IEP”) under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(j). See
Doe, 19 F.4th at 1175–76. Additionally, while the District prohibits religious
2
COVID-19 Status, San Diego Unified School District, available at:
https://sandiegounified.org/covid-19_status (last visited Jan. 7, 2022). Also
available at Appendix A below.
6
exemptions for unvaccinated students, it permits religious exemptions for
unvaccinated staff.
According to Jill, under the District’s system of exemptions, nearly 85% of its
student body will not be subject to the mandate. And for high school students, that
number is over 60%. In real numbers, that translates into over 83,000 San Diego
students, including 21,900 high schoolers, who will be allowed to attend in-person
classes while unvaccinated. These figures provide important context for
understanding the District’s vaccination scheme and the real risks posed by its
system of exemptions.
Under Supreme Court precedent, the question in this case is quite simple:
Does the District’s vaccine mandate treat religious exemptions less favorably than
comparable secular exemptions? If so, we must apply strict scrutiny. The answer
here is plainly “yes.”
First, the District expressly targets the religious for worse treatment in direct
violation of Supreme Court precedent. See South Bay, 141 S. Ct. at 719 (statement
of Gorsuch, J.). The District’s mandate baldly states: “San Diego Unified does not
allow religious exemptions for this particular vaccine.” 3 This statement alone should
trigger strict scrutiny. When the government calls out religion by name, that is a
clarion sign that we are not dealing with a neutral and generally applicable law. See
3
Id. (last visited Jan. 7, 2022). Also available at Appendix A below.
7
Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021) (“Government fails to
act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts
practices because of their religious nature.” (simplified)). Just like in South Bay, the
District’s singling out and rejection of a religious exemption shows that it is
“target[ing] religion for differential treatment.” South Bay, 141 S. Ct. at 717
(statement of Gorsuch, J.). And so, just as in South Bay, such discriminatory actions
cannot stand unless the government can meet its exceptionally demanding burden
under strict scrutiny.
And the District’s justification for its decision has nothing to do with the
health and safety risks involved with a religious exemption. The District admits as
much. On its website, the District explains that because “state law does not
recognize religious or personal belief exemptions,” it cannot provide “religious
exemptions for students.”4 Leaving no doubt about the District’s targeting of
religion, School Board President Richard Barrera explained to the local press that
the District did not want to “create[] kind of a loophole” by allowing a “sort of
personal belief” exemption.5 So the District’s vaccine mandate falls easily into the
4
Back to School FAQ—Vaccines, San Diego Unified School District,
https://www.sandiegounified.org/cms/One.aspx?portalId=27732478&pageId=3547
1525#Vaccines (last visited Jan. 7, 2022). Also available at Appendix B below.
5
What you need to know about San Diego Unified’s vaccine mandate, The
San Diego Union Tribune, (Sept. 29, 2021),
https://www.sandiegouniontribune.com/news/education/story/2021-09-29/what-
parents-need-to-know-about-san-diego-unifieds-new-covid-vaccine-mandate.
8
category of regulations nakedly targeting religion. And even if it were true that state
law prevents religious exemptions,6 such a rationale clearly has nothing to do with
the District’s asserted interest in health and safety and cannot save it from strict
scrutiny. And contrary to the District president’s views, religious exercise isn’t a
“loophole,” but a fundamental freedom. So to be faithful to Supreme Court
precedent and our Constitution, we must apply strict scrutiny.
Second, because the District’s secular exemptions pose nearly identical risks
as religious ones, strict scrutiny is again triggered. A few scenarios demonstrate the
irrefutable comparability of risk:
Post-November 1 Birthday Exemption: The District exempts any 16-year-
old student whose birthday falls after November 1, 2021, from the vaccine mandate.7
But this makes no sense from a risk perspective.
Imagine hypothetical students, Timmy and Tommy. Timmy and Tommy are
both classmates and soccer teammates at a San Diego high school. Like Jill Doe,
Timmy is devoutly religious and believes his faith prevents him from taking the
6
A California Superior Court has recently held that the District’s reading of
the law is incorrect. See Let Them Choose, supra note 1.
7
See Student Vaccine FAQs, San Diego Unified School District,
https://sites.google.com/sandi.net/nursingwellness/covid-19-vaccine/student-
vaccine-faqs (“Students who are 16 as of November 1, 2021 will be required to
fulfill the vaccine requirement for January 4, 2022. Newly eligible students who
turn age 16 after November 1, 2021 will be required to be vaccinated before the start
of the new school year Fall 2022.”) (last visited Jan. 7, 2022). Also available at
Appendix C below.
9
COVID-19 vaccine. Tommy isn’t so religious, but he prefers not to take the vaccine.
Timmy has the misfortune of being born on October 31. Tommy, meanwhile, was
lucky enough to be born two days later on November 2. Today, both students are
16-years old. Yet, under the District’s mandate, Timmy will be expelled from in-
person classes, forced into online learning, and kicked off the soccer team for being
unvaccinated—all because he adheres to his religious beliefs. Meanwhile, Tommy
will be exempt from the mandate for the entire school year and remain on the soccer
team despite being unvaccinated.
The District, perhaps as a matter of administrative convenience, chooses to
force Timmy into online learning while it allows Tommy to pose an identical risk to
the student body. But the District cannot force Timmy to renounce his faith and
submit to the mandate simply because he was born two days earlier than Tommy.
More fundamentally, the Constitution forbids the government from using
administrative convenience, rather than its asserted interest, to infringe on religious
exercise.
Medical Exemption: The District permits medical exemptions from its
vaccine mandate so long as the student gets a doctor’s note. But once again, the
District’s medical exemption does not further its interest in the health and safety of
the student body.
10
Let’s look at another example. Assume Betty and Bea are 16-year-old twin
sisters attending another San Diego high school. Betty has always been more
devoted to her faith. She sincerely believes that receiving the COVID-19 vaccine
would violate her religion. On the other hand, Bea once had a mild allergy to one of
the components of the vaccine and qualifies for the District’s medical exemption.8
Of course, Betty and Bea share the same home. Both spent time over the holidays
mingling with friends and family. Both are unvaccinated. But starting on January
24, Betty will be banned from campus, while Bea will continue her in-person
education. Each day after school ends, Bea goes back to the same home as Betty,
they eat the same meal, and interact with the same parents. But every morning, Betty
watches her sister go back to school, while she must remain confined at home
indefinitely.
It is abundantly clear that Betty and Bea, both unvaccinated, present the exact
same risk of infecting their fellow students. After all, even beyond their vaccination
status, they are both in constant interaction with the same group of people. But under
the District’s vaccination scheme, Bea’s medical exemption permits her to enjoy the
benefits of an in-person education, while her sister Betty is expelled from campus
8
The medical exemption applies to “[a]nyone with a history of immediate
allergic reaction of any severity to any component of the COVID-19 vaccine.” Id.
Also available at Appendix D below.
11
and condemned to online schooling—all for the crime of adhering to her religious
beliefs.
Conditional Student Exemption: The conditional student exemption allows
at least four types of new students (foster youth, homeless students, migrants, and
military families) to be conditionally admitted to school without being vaccinated
for 30 days. Say one of these newly enrolled students shows up on campus and is
unvaccinated. The moment he steps foot on campus, he presents the same health
and safety risks as an unvaccinated religious student. Even if these admissions only
last 30 days, a flow of unvaccinated conditional students will remain on campus for
the school year. And it’s unclear what the District intends to do with conditional
students who do not comply with the vaccine mandate after the grace period. The
District’s website only states “that a conditional admission is not an exemption, and
a recurring effort is made by the school nursing team to support the child and family
to access their records or receive a vaccination in a timely manner.” 9 But it’s hard
to imagine that the District will force homeless students to enroll in online schooling.
IEP Exemption: Next, the District permits unvaccinated students with an
IEP to remain on campus pending separate proceedings to bar them from attending
school in person. And there’s no telling how long that will take. But what is clear
is that COVID-19 doesn’t discriminate based on a student’s status under the IDEA.
9
San Diego Unified School District, supra note 7 (last visited Jan. 7, 2022).
12
So an unvaccinated IEP student has an equal chance of being infected and spreading
COVID-19 throughout the school as an unvaccinated religious student.
To sum up, the following factual points about the District’s policy are
uncontested:
• An unvaccinated student born on November 2 can attend in-person classes,
while an unvaccinated religious student born on October 31 cannot.
• An unvaccinated student with an allergy to the COVID-19 vaccine can attend
in-person classes, while an unvaccinated religious student cannot.
• An unvaccinated student who conditionally enrolls on campus can attend in-
person classes, while an unvaccinated religious student cannot.
• An unvaccinated student with an IEP can attend in-person classes, while an
unvaccinated religious student cannot.
Taken together, the District’s patchwork of exemptions is inconsistent with
its asserted interest in protecting the health of students from the COVID-19
pandemic. Given that the risks posed by unvaccinated students with secular
exemptions are the same as those posed by unvaccinated religious students, the
District’s failure to provide a religious exemption must be subject to strict scrutiny
under Tandon.
C.
To distract from the obvious similarity of risks created by the secular and
religious exemptions, the panel majority instead focused on the reasons why the
secular exemptions exist. Such an approach flouts the Supreme Court’s commands
in Tandon, which renders nearly irrelevant the reason why secular exemptions are
granted. 141 S. Ct. at 1296. That was a critical error.
13
As the panel majority sees it, the medical exemption makes sense because it
serves the health and safety of the individual student. Doe, 19 F.4th at 1178. But
that is not the District’s stated interest here—it is to combat the spread of COVID-
19 school-district wide. 10 To this day, the District claims that the vaccination of
students in kindergarten through high school is a “major step toward preventing the
spread of the virus in our community and nationwide.”11 So while the medical
exemption is certainly prudent, it undermines the District’s interest in mitigating
risks to the student body by stopping the transmission of COVID-19. In other words,
if the District can grant a reprieve for medical exemptions, it can also do so for the
religious.
The same goes for the IEP exemptions. The panel majority doesn’t seriously
dispute that an unvaccinated IEP student poses a risk of spreading the COVID-19
virus. But it instead justifies that exemption because federal law requires schools to
follow certain protocols to bar student admission. Id. at 1179–80. That may be so,
but I see no reason to defer to a student’s statutory right under the IDEA, while
10
See Vaccinate Roadmap at 2, San Diego Unified School District (Sept. 28,
2021), available at:
https://go.boarddocs.com/ca/sandi/Board.nsf/files/C797R4004A4C/$file/Vaccine%
20Mandate%20Plan.pdf (“Why are we recommending mandating vaccines for staff
and students? San Diego Unified is working to ensure the highest-quality instruction
in the safest environment possible for all students and employees. Strong scientific
evidence shows that vaccinations are an essential part of protecting our
communities.”) (last visited Jan. 7, 2022).
11
San Diego Unified School District, supra note 2 (last visited Jan. 7, 2022).
14
completely disregarding a student’s constitutional right to the free exercise of
religion.
As for the conditional students, the panel majority again turns to state law.
Though it acknowledges that there is no current California law requiring proof of
COVID-19 vaccination for school attendance, it speculates that such a mandate will
be the law in the future. Id. at 1179. At that point, the majority surmises, conditional
students will be subject to the vaccine mandate. Id. So no one needs to fear; the
majority assures us that these students will be vaccinated soon enough.
Finally, the majority simply has no answer to explain the inexplicable—why
the November 1, 2021, cut-off date for the vaccine mandate has any basis in the
District’s interest in the health and safety of the student body.
Simply put, the District can’t have it both ways by allowing secular
exemptions but prohibiting religious ones. If the District offers any secular vaccine
exemption with a similar risk profile to a religious exemption, it must satisfy strict
scrutiny to exclude a religious exemption. The Constitution forbids the District from
picking and choosing its preferred secular exemptions while disfavoring religious
exemptions. And this remains true in times of crisis. See Tandon, 992 F.3d at 930
(Bumatay, J., dissenting). In short, the panel majority’s attempt to transform the
constitutional inquiry from assessing the comparability of risks to asking whether
15
the District had a good reason for a secular exemption falls well short of what our
Constitution demands.
D.
As a fallback, the panel majority attempts to bolster its position by speculating
on the number of students using the secular exemptions and the length of those
exemptions to justify the exclusion of religious exemptions:
[A]lthough the record does not disclose the number of students who
have sought or are likely to seek a medical exemption, if that number is
very small and the number of students likely to seek a religious
exemption is large, then the medical exemption would not qualify as
“comparable” to the religious exemption in terms of the “risk” each
exemption poses to the government’s asserted interests.
Doe, 19 F.4th at 1178; see also id. at 1180 (noting that the “limited time period” of
secular exemptions make them incomparable to religious ones). The majority thus
concludes, so long as there won’t be as many secular exemptions as religious
exemptions and so long as secular exemptions won’t last as long as religious ones,
then the District is free to forbid religious exemptions. Id. at 1178–80. In other
words, the government can favor secular interests over religious liberty if that
preferential treatment isn’t permanent or isn’t as popular as the religious interest.
But that’s not how the Constitution works. Whether the First Amendment
right to religious liberty is protected has nothing to do with the number of religious
observers or the persistence of their religious beliefs. As Judge Ikuta noted in her
dissent, even the temporary loss of an individual’s free exercise rights constitutes an
16
unconstitutional infringement. Id. at 1186 (Ikuta, J., dissenting) (“But the majority
identifies no authority suggesting that the School District can treat secular activity
more favorably than religious activity simply because the disparate treatment is only
temporary.”) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.”)).
Even setting aside the majority’s legal errors, the majority relies on unfounded
speculation to reach its desired result. First, the majority suggests that fewer students
will use the medical exemption than the religious exemption. See Doe, 19 F.4th at
1178. But the District’s rules do not cap or otherwise limit the number of students
who are eligible to receive a medical exemption. So, the majority just speculates
that fewer students will avail themselves of the medical exemption. But this sort of
speculative reasoning cannot be used to cast aside a student’s religious liberty. Cf.
Tandon, 141 S. Ct. at 1296 (holding that the government “must do more than assert
that certain risk factors are always present in worship, or always absent from the
other secular activities the government may allow.” (simplified)).
Second, according to the panel majority, the medical exemption is also
temporary and thus distinguishable from the religious exemption. Once again, the
majority relies on wrongheaded speculation. There is no basis to suggest that a
student who has a medical allergy to the COVID-19 vaccine will overcome that
17
allergy and be medically cleared to take the vaccine during the school year. Simply
put, a medical allergy can potentially last a lifetime and so there’s no way for the
majority to know when such medical exemptions will expire. See Doe, 19 F.4th at
1186 n.7 (Ikuta, J., dissenting). Furthermore, the District requires students with
longer-term medical exemptions to reapply for an exemption once a year. Id. at
1178. So one doctor’s note is sufficient to be excused from the mandate for the
school year. In short, it is just as likely that a student with a medical exemption will
retain his condition throughout the school year as a religious student will retain her
faith throughout the school year.
Lastly, no amount of speculation can explain why 16-year-old students with
birthdays after November 1 present less risk to health and safety than religious
students. As the school year goes on, more and more students will turn 16—
increasing the number of students taking advantage of the November 1 exemption.
And once a student turns 16, they are exempt for the rest of the school year—nothing
temporary about that. So there is no conceivable link to health and safety that can
support the District’s arbitrary decision to pick a random date on the calendar while
categorically excluding religious exemptions.
18
E.
Having made clear that strict scrutiny applies, the District’s vaccination
scheme fails to meet that exceptionally high bar. Strict scrutiny requires the District
to further its asserted health and safety interests through narrowly tailored means.
See Tandon, 141 S. Ct. at 1298. The District must show that “measures less
restrictive of the First Amendment activity could not address its interest in reducing
the spread of COVID.” Id. at 1296–97. If the District chooses to allow unvaccinated
students on campus through secular exemptions, it must show how exemptions for
unvaccinated religious students are “more dangerous” to the student body. See id.
at 1297. “Otherwise, [exemptions] that suffice for [secular reasons] suffice for
religious exercise too.” Id. (simplified).
The District can’t meet its burden of showing that the ban on religious
exemptions is the least restrictive means of combatting COVID-19. The undeniable
fact is that San Diego public schools are teeming with students who are
unvaccinated, because of either their birthdays, allergies, learning disabilities, or
familial statuses. Thus, the District has shown that it can accommodate these
students but has barely even tried to prove why it could not offer the same
arrangement to the religious.
Moreover, it turns out that the District does allow some religious
exemptions—but only to unvaccinated staff. That means that unvaccinated teachers,
19
librarians, custodians, coaches, and staff may appear in person if they are religious,
while unvaccinated religious students cannot. No one can seriously deny that
unvaccinated religious staff and unvaccinated religious students pose similar health
and safety risks of spreading COVID-19 on school grounds.12 If the staff exemption
is consistent with the District’s interest in the health and safety of its campuses, it
strains credulity to believe that the District could not offer the same for its students.
For all these reasons, “the vaccine mandate is stricter than necessary to meet
the School District’s asserted goals, and therefore is not narrowly tailored.” Doe, 19
F.4th at 1187 (Ikuta, J., dissenting).
***
In short, Jill has easily proven she’s entitled to an injunction. She has shown
both “serious questions going to the merits” and that “the balance of hardships tips
sharply in [her] favor.” See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131 (9th Cir. 2011) (simplified). As discussed above, the District’s prohibition
against religious exemptions cannot be justified under the First Amendment given
the patchwork of comparable secular exemptions. And no one can question the
hardship that Jill faces—she either will be coerced to violate her religious beliefs
12
Arguably unvaccinated staff pose a greater risk of COVID-19 transmission
because they speak and lecture to classrooms of students every day.
20
and take the vaccine or be forced into inferior online classes, harming her education,
wellbeing, and future.
II.
Today, our court allows the threat of COVID-19 to force Jill Doe and other
San Diego students to violate their religious beliefs or face severe punishment.
Expulsion from school. Kicked off sports teams. Isolated from teachers and
classmates. But because our Constitution endures through times of crisis, Jill should
not have to face these life-altering consequences.
I respectfully dissent.
21
Appendix
A.
B.
22
C.
D.
23
John Doe, et al. v. San Diego Unified School District, No. 21-56259 FILED
BERZON and BENNETT, Circuit Judges, concurring in the denial of JAN 14 2022
reconsideration en banc: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The only question presented to the district court and addressed by the
motions panel was whether Doe’s request for an injunction pending appeal should
be granted. Notably, the motions panel’s majority opinion is explicit that, under
Ninth Circuit case law, its reasoning is not binding on the panel to which the
preliminary injunction appeal is assigned.1 Judge Bumatay’s dissent from the
denial of rehearing en banc loses sight of the limited issue the motions panel
decided. It also inaccurately recasts this case. 2
First, Judge Bumatay states that San Diego Unified School District
(“SDUSD”) is requiring all students over the age of 16 to become fully vaccinated
“by January 4, 2022.” Bumatay Dissent at 1–2. SDUSD has explained that,
although students were encouraged to become fully vaccinated by January 4, the
1
See Slip Op. at 10 n.4 (citing E. Bay Sanctuary Covenant v. Biden,
993 F.3d 640, 660 (9th Cir. 2021)). The opening brief on the merits for that appeal
is currently due on January 18, 2022, the answering brief is due on February 17,
2022, and the optional reply brief is due 21 days after service of the answering
brief. Oral argument has not yet been scheduled.
2
The motions panel’s majority opinion adequately responds to the dissents
from denial of rehearing en banc of Judge Bress and Judge Forrest, and to Judge
O’Scannlain’s statement respecting the denial of rehearing en banc, so we do not
address them here.
1
actual deadline for vaccination is “the start of the Spring” semester on January 24,
2022.
Second, Judge Bumatay states that the motions panel’s “crucial error was
applying the wrong legal framework to [Doe’s] claim.” Bumatay Dissent at 2. But
the motions panel’s majority opinion and Judge Bumatay’s dissent cite the same
legal rules, including the Supreme Court’s guidance in Tandon that a regulation is
subject to strict scrutiny review when it “treat[s] any comparable secular activity
more favorably than religious exercise.” Tandon v. Newsom, 141 S. Ct. 1294,
1296 (2021) (per curiam); see also, e.g., Slip Op. at 13 (Motions Panel Majority
Opinion); Bumatay Dissent at 2–3. The panel majority applied rational basis
review to the mandate because it concluded that no comparable secular activity
was treated more favorably than religious activity. See Slip Op. at 9–15 (Motions
Panel Majority Opinion). So the disagreement between the panel majority and the
en banc dissenters is fundamentally factual. It is not a dispute over the relevant
legal standards.
Third, Judge Bumatay states that “[s]eparate parties have obtained a
‘tentative’ writ of mandate preventing implementation of” the vaccination
mandate. Bumatay Dissent at 3 n.1. It is our understanding that the writ of
mandate, issued from the bench by the San Diego Superior Court on December 20,
2
2021, is not currently in effect pending appeal by operation of state law. But the
decision itself is final, not tentative. 3
Fourth, Judge Bumatay asserts that the mandate is facially discriminatory
against religion, citing language from a January 7, 2022 screenshot of an SDUSD
webpage, which, at that time, stated that SDUSD “does not allow religious
exemptions for this particular mandate.” Bumatay Dissent at 7. Judge Bumatay
argues that “[t]his statement alone should trigger strict scrutiny.” Id. at 7–8.
But, at the time of the passage of the mandate, its terms did not “make any
reference to religion or ‘a religious practice without a secular meaning discernable
from the language or context.’” Slip Op. at 10 (Motions Panel Majority Opinion)
(quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
533 (1993)). The webpage cited by Judge Bumatay is not in the record. As
presently constituted, the webpage no longer contains any statement about
religious exemptions. 4 And the statement cited by Judge Bumatay was not
included on the webpage at the time of the mandate’s passage or the initiation of
3
See, e.g., Respondents’ Letter re: State Case, Doe v. San Diego Unified
Sch. Dist., Case No. 21A217 (Dec. 26, 2021),
https://www.supremecourt.gov/DocketPDF/21/21A217/206447/202112261934321
42_Ltr%20Responding%20to%20Applicant%20Ltr%2012262021.pdf.
4
See COVID-19 Information, San Diego Unified Sch. Dist.,
https://sandiegounified.org/covid-19_status (last visited Jan. 13, 2022).
3
this litigation.5 So the statement is irrelevant for present purposes. Further, even if
the webpage statement were considered relevant, there is no meaningful distinction
between a policy that does not provide religious exemptions but makes no express
mention of that fact, and a policy that does not provide religious exemptions and
includes, for clarity, a statement to that effect. The statement—which, in this case,
may have been included on the SDUSD webpage to inform the community about
the boundaries of the mandate in light of ongoing litigation—does not evince
animus toward or discriminatory treatment of religion. 6
Fifth, Judge Bumatay contends that SDUSD intentionally treated religious
students less favorably than other students because “School Board President
Richard Barrera explained to the local press,” in response to the question whether
students could receive a personal belief exemption, that “the District did not want
5
See The Wayback Machine,
https://web.archive.org/web/20201001000000*/https://sandiegounified.org/covid-
19_status (last visited Jan. 13, 2022) (capturing snapshots of the SDUSD webpage
at different points in time in 2021 and 2022).
6
A PowerPoint presentation regarding the mandate explained that “[s]tate
law does not recognize religious or personal belief exemptions for student
immunizations.” Even if the presentation is considered part of the mandate itself,
its inclusion of a single, accurate remark about the state law applicable to other
required vaccines does not qualify as targeting religion for inferior treatment. See
Cal. Health & Safety Code § 120325 (not permitting religious or personal belief
exemptions for a list of 10 required vaccinations); see also id. § 120338
(permitting religious or personal belief exemptions for vaccinations “deemed
appropriate” by the Department of Public Health but not yet added by name to the
Health and Safety Code by the California legislature).
4
to ‘create[] kind of a loophole’” by allowing for such exemptions. Bumatay
Dissent at 8. That statement was made after the School Board adopted the
mandate, and in response to a question that focused on personal belief exemptions,
which the District treats as a distinct category of exemptions separate from
religious exemptions. The statement therefore did not undermine the neutrality of
the mandate as to religion.
Sixth, Judge Bumatay states that “nearly 85%” of SDUSD’s student body
“will not be subject to the mandate,” which “translates into over 83,000 San Diego
students, including 21,900 high schoolers, . . . attend[ing] in-person classes while
unvaccinated.” Bumatay Dissent at 7. That understanding is incorrect. The
mandate applies to students who are 16 or older, those who are 12 to 15, and those
who are 5 to 11 in three stages, “[p]ending FDA approval” of vaccines for each age
group. It cannot be that proceeding in a phased manner in light of ongoing clinical
research and staged FDA vaccine approvals—in other words, doing one’s best to
safely promote the health of students while also complying with federal and state
law—demonstrates animus toward or discriminatory treatment of religion, or that
SDUSD’s policy is not neutral. Additionally, as of September 29, 2021, “more
than 64 percent of [SDUSD] students 12 and older ha[d] received at least one dose
of the Covid-19 vaccine, and more than 57 percent [we]re fully vaccinated.” Many
more have surely been vaccinated against COVID since then, as have many
5
younger children. And, in fact, much of the material submitted by the plaintiffs in
the district court and in plaintiffs’ stay motion seemingly attacked the
constitutionality of the policy not only as applied to Doe, but also as to be applied
to younger students. Judge Bumatay’s figures therefore are not accurate, nor is his
characterization of the scope of the mandate.
Seventh, Judge Bumatay states that SDUSD “exempts any 16-year-old
student whose birthday falls after November 1, 2021, from the vaccine mandate.”
Bumatay Dissent at 9. Such students are not exempt from the mandate. Instead,
they are subject to a different vaccination deadline. And importantly, plaintiffs did
not advance any argument about this subset of students before the district court or
the motions panel. The very first time this argument surfaced before this Court
was in the plaintiffs’ request for reconsideration en banc. The District therefore
had no opportunity to submit any factual information concerning the cutoff date or
to consider whether to vary the birthday deadline for the mandate. Plaintiffs’
argument, and any allegations of fact related to it, should have been presented to
the district court, not in a motion seeking en banc review. If the argument had
been raised earlier, the District may have revised this aspect of the policy, as it did
the now defunct per se pregnancy exemption. See Slip Op. at 6–8, 20 n.1.
Eighth, Judge Bumatay states that SDUSD “permits medical exemptions
from its vaccine mandate so long as the student gets a doctor’s note.” Bumatay
6
Dissent at 10. This characterization of the medical exemption is incorrect. The
medical exemption is “limited to students with contraindications or precautions
recognized by the Centers for Disease Control and Prevention or the vaccine
manufacturer,” and must be “certified by a physician” as necessary for the health
and safety of an individual student. Slip Op. at 11 (Motions Panel Majority
Opinion). The policy also places other limitations on medical exemptions. For
example, if the certifying physician is not the primary care physician of the
student, the student must explain why he or she relied on the services of the
certifying physician. In short, the medical exemption, substantively and
procedurally, is far more stringent than Judge Bumatay’s portrayal. 7
At times, Judge Bumatay appears to view SDUSD’s asserted interest as
confined to single-mindedly suppressing COVID infections, no matter the harm to
a few medically vulnerable students. See, e.g., Bumatay Dissent at 11, 14; see also
7
The prerequisites to obtaining a medical exemption also mean that such
exemptions are likely to be either temporary or rare. Indeed, some “precautions”
to COVID-19 vaccines, such as “moderate or severe acute illness,” are inherently
limited in duration. See COVID-19 Vaccine FAQs for Healthcare Professionals,
Ctrs. for Disease Control & Prevention, https://www.cdc.gov/vaccines/covid-
19/hcp/faq.html (last updated Dec. 17, 2021) (under the question, “What are
precautions to COVID-19 vaccination?”). And “contraindications” to the vaccine
are exceedingly rare. See, e.g., id. (under the question, “What are contraindications
to COVID-19 vaccines?”); see also Allergic Reactions Including Anaphylaxis After
Receipt of the First Dose of Pfizer-BioNTech COVID-19 Vaccine—United States,
December 14–23, 2020, Ctrs. for Disease Control & Prevention (Jan. 6, 2021),
https://www.cdc.gov/mmwr/volumes/70/wr/mm7002e1.htm.
7
Bress Dissent at 1–2. But the record demonstrates that SDUSD’s core interest in
promulgating the student vaccination mandate was to promote “the health and
safety of [its] students” overall, including through medical exemptions. The
mandate is consistent with that interest, as it requires vaccination in all cases in
which vaccination will not harm the health and safety of a specific student. See
also, e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020)
(per curiam) (recognizing that the State’s interest was “public health,” not reducing
COVID cases for its own sake); Emp. Div., Dep’t of Human Res. of Or. v. Smith,
494 U.S. 872, 874, 878–82 (1990) (upholding a law criminalizing controlled
substance possession that had an incidental effect of burdening religion even
though the law contained an exemption for substances prescribed for medical
purposes); Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (stating that
“[t]he right to practice religion freely” is not “beyond regulation in the public
interest,” including regulation aimed at reducing the risk of “expos[ing] the
community or the child to communicable disease or the latter to ill health or
death”).
Ninth, Judge Bumatay characterizes the 30-day conditional enrollment
period for foster youth, students in “migrant” status, homeless students, and
military families as an “exemption.” Bumatay Dissent at 12. He also characterizes
the temporary procedural protections for students with Individualized Education
8
Progams as an “exemption.” Id. at 12–13. The motions panel’s majority opinion
explains why those aspects of the mandate do not treat secular activity more
favorably than religious activity and so do not trigger strict scrutiny. Slip
Op. at 13–15 (Motions Panel Majority Opinion). We emphasize, once more, that
these students are not exempt from the mandate. The only students exempt from
the mandate are those who receive a medical exemption. What Doe is requesting
is an exemption, not a delay in the deadline for compliance or further consultation
regarding how and when she must comply. 8
Finally, this case is not Tandon. Tandon concerned an outright ban on group
worship in private homes. 141 S. Ct. at 1296–97. SDUSD is not preventing Jill
Doe from practicing her religion, as was the case in Tandon. Doe may worship as
she pleases and may continue to abstain from vaccination for religious reasons.
The SDUSD policy prevents her only from attending school in person and from
participating in school sports—not from receiving a public education, participating
in private sports leagues, or fully practicing her religion.
8
Judge Bumatay also argues that the student vaccination mandate is not
generally applicable because the employee vaccination mandate includes a
religious accommodation procedure. Bumatay Dissent at 19–20. But the student
vaccination mandate and employee vaccination mandate are distinct policies. And,
in any event, the procedure is not a religious exemption. It is a legally required
interactive process that may ultimately result in a denial of the requested
accommodation, such as on the ground that an exemption would pose an “undue
hardship” on the employer by burdening “the conduct of the employer’s business.”
Slip Op. at 15–16 (Motions Panel Majority Opinion).
9
In sum, the COVID-19 pandemic has claimed the lives of more than 840,000
Americans. 9 As we explained, “[t]he record indicates that vaccines are safe and
effective at preventing the spread of COVID-19, and that SDUSD’s vaccination
mandate is therefore likely to promote the health and safety of SDUSD’s students
and staff, as well as the broader community.” Slip Op. at 18 (Motions Panel
Majority Opinion). Plaintiffs have not carried their burden to establish “that the
mandate was implemented with the aim of suppressing religious belief, rather than
protecting the health and safety of students, staff, and the community.” Id. at 10.
Accordingly, the motions panel properly denied plaintiffs’ motion for an injunction
pending appeal.
9
Covid Data Tracker, Ctrs. for Disease Control & Prevention,
https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Jan. 13,
2022).
10
FILED
JAN 14 2022
Doe v. San Diego Unified School District, No. 21-56259
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
O’SCANNLAIN, Circuit Judge, 1 respecting the denial of rehearing en banc:
I agree with the views expressed by Judge Bumatay in his dissent from
denial of rehearing en banc.
1
As a judge of this court in senior status, I no longer have the power to vote
on calls for rehearing cases en banc or formally to join a dissent from failure to
rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P. 35(a). Following our
court’s general orders, however, I may participate in discussions of en banc
proceedings. See Ninth Circuit General Order 5.5(a).
FILED
JAN 14 2022
Doe v. San Diego Unified School Dist., No. 21-56259
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRESS, Circuit Judge, joined by BADE, Circuit Judge, dissenting from the denial
of rehearing en banc:
I would have heard this matter en banc because the panel majority’s analysis
is inconsistent with the analytical approach for Free Exercise Clause claims that the
Supreme Court set forth in Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam).
There are understandable and important reasons why a school district would want to
impose a COVID-19 vaccine mandate for its students. It is also understandable why
a school district may want to exempt some students from that mandate, such as
students who would experience an adverse medical reaction to a vaccine or those
who have just arrived in the area due to a parent’s military transfer. But when a
school district, as here, allows secular exemptions to its vaccine mandate but
disallows exemptions for students with sincerely held religious objections, we must
examine whether the adverse treatment of “comparable” activity by religious
students is justified based on “the risks” of the activity in connection with “the
asserted government interest that justifies the regulation at issue.” Id. at 1296 (citing
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per
curiam)).
Here, there is no indication that the risks of spreading COVID-19 that the
plaintiff poses as an unvaccinated student are any different than the risks posed by
other unvaccinated students who are nonetheless allowed to attend school in person
based on an approved secular exemption to the district’s vaccine mandate. That
basic feature of this case required us to apply strict scrutiny, and there is little doubt
that the district’s policy would fail that rigorous review.
The harm here is also substantial. There is, of course, an innate constitutional
harm associated with treating persons with religious objections differently without
justification. And as many parents of schoolchildren would by now attest, the
difference between in-person and virtual learning is a significant one. Requiring the
plaintiff to experience high school through a computer screen when her unvaccinated
classmates can attend school in person based on secular exemptions is not the
situation Tandon envisioned.
Like other of my colleagues who have dissented at both the panel and en banc
stages, I respectfully dissent from the denial of rehearing en banc.
2
FILED
JAN 14 2022
John Doe, et al., v. San Diego Unified School District, No. 21-56259 MOLLY C. DWYER, CLERK
FORREST, Circuit Judge, dissenting from the denial of rehearing en banc:U.S. COURT OF APPEALS
I agree that strict scrutiny applies to the plaintiffs’ First Amendment challenge
where the San Diego Unified School District’s COVID-19 vaccine mandate allows
unvaccinated students who are otherwise subject to the mandate to continue
attending school and school activities in-person for secular reasons but requires
students who are unvaccinated for religious reasons to attend online classes and
forgo school activities that cannot be performed remotely. See Tandon v. Newsom,
141 S. Ct. 1294, 1296 (2021) (“[G]overnment regulations are not neutral and
generally applicable, and therefore trigger strict scrutiny under the Free Exercise
Clause, whenever they treat any comparable secular activity more favorably than
religious exercise.”); Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67
(2020). I also agree that plaintiffs have raised “serious questions going to the merits”
of whether the San Diego Unified School District can satisfy strict scrutiny and, as
such, they have shown that they are likely to suffer irreparable harm without a stay
and that the “balance of hardships” weighs in their favor. Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); see also Roman Cath.
Dioceses, 141 S. Ct. at 67 (“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.”). We should
rehear en banc the motion for a stay pending appeal.
I respectfully dissent from the denial of rehearing en banc.