Lawsuit Filed Against the Unconstitutional SB 277
A lawsuit was filed to stop SB277 in it’s tracks. The plaintiffs include parents of healthy children that are being denied access to school, and also parents of vaccine damaged children.
Where there is risk, there must be a choice! Please help circulate this information.
Plaintiffs’ claims in their First Amended Complaint:
First Claim for Relief Against All Defendants (Violation of Freedom of Religion, Assembly, Parental Rights, 42 U.S.C. § 1983)
136. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
137. Defendants deprived and continue to deprive Plaintiffs of their right to Free Exercise of religion, as secured by the First Amendment and made applicable to the states by the Fourteenth Amendment, by discriminating against Plaintiffs and their children because of the Plaintiffs’ religiously-motivated conduct in making exemption claims, including declining certain vaccines derived from or containing ingredients to which Plaintiffs object, including aborted fetal cells.
138. Defendants are also depriving Plaintiffs and their children of the right to freedom of assembly by depriving children of the right to attend secular or religious private schools of their choosing and by requiring that both public and private schools deny admission and education to children with PBEs.
139. Additionally, Defendants are infringing Plaintiffs’ rights to control the upbringing and education of their minor children according to the religion, system of values, and moral norms they deem appropriate and their rights to the care, custody, education of and association with their children.
140. Defendants are enforcing SB 277 under color of State law and are depriving and will continue to deprive Plaintiffs of numerous hybrid rights secured by the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. § 1983.
Second Claim for Relief Against All Defendants (Violation of Equal Protection, Fourteenth Amendment)
141. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
142. The Fourteenth Amendment to the United States Constitution prohibits state actors from singling out persons for unequal treatment as compared to others similarly situated.
143. SB 277 violates Plaintiffs’ rights to equal protection, both on its face and as applied to Plaintiffs in a myriad ways, including, without limitation: (a) depriving children with PBEs of their fundamental right to an equal education, while allowing other children to attend school; (b) depriving children with religious objections to vaccination of their right to an equal education; (c) excluding children with disabilities from school; (d) allowing children with IEPs in some school districts to attend school, while denying children with IEPs in other schools districts that same right; (e) allowing children who are currently entering grades one through sixth and grades eight through twelve to remain in school and obtain an education, while barring children who are entering kindergarten or the seventh grade; and (f) barring from school children who have not had every dose of the ten enumerated vaccines, while allowing into schools children who have had vaccines but did not develop immunity, rendering them “unimmunized.”
144. The disadvantage SB 277 imposes upon children with PBEs is the result of disapproval or animus against a politically unpopular group. The history of the enactment of SB 277 demonstrates that it was a backlash against parents who question vaccines or the vaccine schedule that stripped children with PBEs of the rights guaranteed to them by the California Constitution and numerous State and federal laws. As such, SB 277 withdrew from children who are not fully vaccinated, but from no others, specific legal protections afforded by the California Supreme Court and the California Constitution and by numerous State and federal disability protection laws, and imposed a special disability upon those persons alone. Accordingly, SB 277 violates the Equal Protection Clause of the Fourteenth Amendment because it singles out children with PBEs for a disfavored legal status, thereby creating a category of “second-class citizens.”
Third Claim for Relief Against All Defendants (Violation of Due Process, Fifth and Fourteenth Amendments)
145. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
146. SB 277 violates fundamental liberties that are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, both on its face and as applied to Plaintiffs.
147. SB 277 impinges on fundamental liberties by denying children with PBEs the opportunity to attend school and participate in the same activities as other children. By barring children with PBEs from school and isolating them in their homes, the State is stigmatizing children with PBEs, as well as their families, by treating them like vectors of disease who deserve to be shunned, marginalized and ostracized from school and society. The State is thus stigmatizing children with PBEs and denying them the same dignity, respect, and access to schools and, therefore, society that all other children receive. This indignity and stigmatization is being felt especially by children who are currently barred from entering kindergarten and advancing to the seventh grade, as they will be deprived of the opportunity to continue in school with the children with whom they attended school in previous years.
148. SB 277 violates Plaintiffs’ rights to bodily integrity by coercing medical procedures under threat of both truancy and child neglect. SB 277 violates the Plaintiffs’ rights of informed consent.
Fourth Claim for Relief Against All Defendants (Violation of the Individuals with Disabilities Education Act)
149. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
150. Defendants have violated and continue to violate plaintiffs’ rights under the IDEA by, inter alia: (a) excluding children with IEPs from school and denying them a free and appropriate public education, in violation of 20 U.S.C. § 1400 et seq.; (b) removing children with IEPs from school for more than ten days; (c) failing to ensure that school and district administrators and teachers adhere to the requisite procedural safeguards for disabled children and their parents and guardians, including prior written notice of proposed charges, the right to disagree in adequate administrative proceedings and the right to pendency during those proceedings.
151. As a result of Defendants’ conduct, plaintiffs have been injured and continue to suffer injury.
Fifth Claim for Relief Against All Defendants (Violation of Section 504 of the Rehabilitation Act of 1973)
152. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
153. Defendants receive federal financial assistance for their educational programs.
154. Plaintiffs are qualified individuals with disabilities under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
155. Defendants have violated and are continuing to violate Plaintiffs’ rights, including their rights to FAPE, under the Section 504 of the Rehabilitation Act of 1973 and the regulations promulgated thereunder.
Sixth Claim for Relief Against All Defendants (Violation of the Americans with Disabilities Act)
156. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
157. Plaintiffs’ children have impairments that substantially limit one or more major life activities, including talking, walking, communicating, learning, and interacting with others.
158. Plaintiffs’ children are qualified to receive a free appropriate public education in Defendants’ schools.
159. Under SB 277, Defendants have failed and will continue to fail to reasonably accommodate the disabilities of Plaintiffs’ children, to provide them with an appropriate education, and have therefore discriminated against them on the basis of their disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, et seq.
160. As a direct and proximate result of the Defendants’ misconduct, Plaintiffs and their minor children with disabilities have suffered and continue to suffer psychological pain, suffering and mental anguish, and the deprivation of their right to a free appropriate public education, which will continue unless Defendants are enjoined from their unlawful conduct.
Seventh Claim for Relief Against All Defendants (Violation of Title VI of the Civil Rights Act of 1964)
161. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
162. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
163. The federal regulations implementing Title VI prohibit a recipient of federal financial assistance from utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin. 34 C.F.R. § 100.3(b)(2) (1999).
164. Defendants are maintaining a public school system in a manner that has a discriminatory impact on the basis of race, color, or national origin in violation of Title VI and its implementing regulations. Defendants’ conduct has the effect of depriving students of color or students whose parents are not native English speakers of basic educational necessities at disproportionately higher rates than white students without sufficient justification and in the face of viable, less discriminatory alternatives.
Eighth Claim for Relief Against All Defendants (Violation of Article IX, Sections 1 and 5 of the California Constitution)
165. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
166. Defendants have violated and continue to violate Plaintiffs’ right, pursuant to article IX, sections 1 and 5 of the California Constitution, to learn in a “system of common schools” that are “kept up and supported” such that children may learn and receive the “diffusion of knowledge and intelligence essential to the preservation of the[ir] rights and liberties.” These constitutional provisions impose on the Defendants, and each of them, the non-delegable duty to provide to each Plaintiff the opportunity to obtain a basic education. Defendants have denied to each Plaintiff the opportunity to obtain a basic education in the schools to which the Plaintiffs are consigned in that the schools to which these children are consigned lack one or a combination of the bare essentials of an education.
Ninth Claim for Relief Against All Defendants (Violation of the Equal Protection Clauses of the California Constitution, Article I, Section 7(a) & Article IV, Section 16(a))
167. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
168. Defendants have violated and continue to violate Plaintiffs’ right to receive equal protection of the laws, pursuant to article I, § 7(a) and article IV, § 16(a) of the California Constitution, by failing to provide Plaintiffs with basic educational opportunities equal to those that children in other schools receive.
Tenth Claim for Relief Against All Defendants (Violation of the Due Process Clauses of the California Constitution, Article I, Sections 7(a) & 15)
169. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
170. Defendants, through their compulsory education laws, require Plaintiffs to attend school full-time between the ages of six and 18 years and have, thereby, imposed restraints on Plaintiffs’ liberty.
171. Defendants have violated Plaintiffs’ right to due process, pursuant to article I, § 7(a) and 15 of the California Constitution, by depriving Plaintiffs of the right to attend public schools that they are, at the same time, required to attend. Defendants thus impede basic educational success.
172. Plaintiffs have a protected property interest in obtaining a public education and in graduating from high school and receiving a California high school diploma.
173. Fulfillment of the property interest in obtaining a California high school diploma is now hindered by Defendants’ deprivation of Plaintiffs’ right to attend school.
174. Defendants have violated and continue to violate Plaintiffs’ right to due process by depriving Plaintiffs of basic educational opportunities sufficient to enable them to learn, to achieve to State standards, and to complete all requirements for graduation, diploma conferral, and the ability to pursue a common occupation and by arbitrarily denying Plaintiffs the benefits of their schooling.
Eleventh Claim for Relief Against All Defendants (Violation of Education Code section 51004)
175. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
176. California Education Code § 51004 provides: The Legislature hereby recognizes that it is the policy of the people of the State of California to provide an educational opportunity to the end that every student leaving school shall have the opportunity to be prepared to enter the world of work; that every student who graduates from any state-supported educational institution should have sufficient marketable skills for legitimate remunerative employment; that every qualified and eligible adult citizen shall be afforded an educational opportunity to become suitably employed in some remunerative field of employment; and that such opportunities are a right to be enjoyed without regard to race, creed, color, national origin, sex, or economic status.
177. Defendants have violated and continue to violate Plaintiffs’ right to receive educational opportunity regardless of race, color, national origin, or economic status, pursuant to California Education Code § 51004, by failing to provide Plaintiffs the basic educational necessities described above Twelfth Claim for Relief Against All Defendants (Violation of California Confidentiality of Medical Information Act)
178. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
179. California Confidentiality of Medical Information Act (CMIA), Cal. Civil Code §56.11 prohibits schools and agencies from gathering medical exemption information to substantively review those exemptions.
180. Defendants’ conduct, including gathering medical exemption information to substantively review those exemptions, violates the CMIA.
181. Defendants’ conduct harmed Plaintiffs as alleged throughout this Complaint.
Thirteenth Claim for Relief Against All Defendants (Violation of California Information Practices Act (IPA))
182. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
183. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
184. The California Information Practices Act (IPA) (Cal. Civ. Code. §§ 1798-1798.78) limits the collection, maintenance, and distribution of personal information by state agencies.
185. Defendants’ conduct, including collecting, maintaining, and distributing the students’ personal information, violates the IPA.
186. Defendants’ conduct harmed Plaintiffs as alleged throughout this Complaint.
Fourteenth Claim for Relief Against All Defendants (Violation of Health And Safety Code § 120440)
187. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
188. California Health & Safety Code §120440 (e) allows a parent to refuse to permit record sharing. That Section provides: (e)A patient or a patient’s parent or guardian may refuse to permit record sharing… (4) The patient or client, or the parent or guardian of the patient or client, may refuse to allow this information to be shared in the manner described, or to receive immunization reminder notifications at any time, or both. After refusal, the patient’s or client’s physician may maintain access to this information for the purposes of patient care or protecting the public health. (Emphasis added.)
189. Defendants’ conduct, including requiring or coercing Plaintiffs to permit sharing of records relating to the exemptions, violates §120440.
190. Defendants’ conduct harmed Plaintiffs as alleged throughout this Complaint.
Fifteenth Claim for Relief Against All Defendants (Violation of Federal Family Educational Rights and Privacy Act (FERPA))
191. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
192. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
193. The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g, allows schools to share students’ medical records to serve “legitimate educational interests,” which must be the subject of annual notice to students of criteria under 34 CFR § 99.7 (a) (3) (iii).
194. Under §1232g (b) (1) and 34 C.F.R. § 99.31 (a) (1) (I) (A), schools may not share medical records of exemptions without parents’ prior consent.
195. Defendants’ conduct, including collecting medical records relating to the exemption, violates FERPA and applicable regulations.
196. Defendants’ conduct harmed Plaintiffs as alleged throughout this Complaint.
Sixteenth Claim for Relief Against All Defendants (Violation of California Code of Civil Procedure section 526a)
197. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 198. In carrying out the practices and policies complained of herein, Defendants expend public funds and therefore violate California Code of Civil Procedure § 526a.
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully requests that the Court grant judgment for Plaintiffs as follows:
1. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C. §2201 and 42 U.S.C. §1983, enter a declaratory judgment stating that SB 277 and any other California law that permanently bars children with personal belief exemptions from school violates the Constitutions of the United States and the State of California.
2. Plaintiffs respectfully request that this Court enter a preliminary and permanent injunction enjoining enforcement of application of SB 277 and any other California law that bars Plaintiffs’ children and all others similarly situated from school, restoring Plaintiffs’ rights under AB 2109.
3. Plaintiffs respectfully request that this Court enter a preliminary and permanent injunction enjoining the collection and scrutiny of medical exemptions for the purpose of identifying or tracking physicians who write medical exemptions from vaccination.
4. Plaintiffs respectfully request costs of suit, including reasonable attorney’s fees, and all further relief to which they may justly be entitled.
