Olivia Hudok, the Pickens High School senior who has been barred from the classroom over her refusal to get mandatory immunizations, will get her day in court Friday.
Hudok and father Phil, a retired teacher, filed a court complaint against the Randolph County Board of Education and Superintendent James Phares earlier this month, demanding they grant a religious exemption allowing her to return to school.
In the meantime, Olivia is being home-schooled by her dad.
The complaint is scheduled to be heard at 10 a.m. Friday before Judge Jaymie Godwin Wilfong in Randolph County Circuit Court in Elkins.
Phares said this week that the school board has filed a motion to dismiss the complaint, arguing the state Department of Health and Human Resources should have been a defendant, and lawsuits against state agencies must be filed in Kanawha County.
The state attorney general's office has filed two motions as well, school board attorney Greg Bailey said.
One seeks to intervene in the case, while the other asks the judge to dismiss because it was filed in the wrong county.
Olivia refused to get Tdap and MCV4 boosters for religious reasons and because of concerns about toxic ingredients. The immunizations are designed to protect against tetanus, diphtheria, pertussis and meningitis.
Under a new state mandate, all seventh- through 12th-graders must have been vaccinated by Sept. 4.
The Hudoks contend that Olivia received the Tdap and MCV4 immunizations as a child as required by state law. Although she has not received the Tdap and MCV4 booster vaccinations, the Hudoks believe that her earlier immunizations fulfill the requirements of West Virginia Code 16-3-4.
Bailey said this week that three similar lawsuits have been filed around West Virginia - one each in Kanawha, Ohio and Mercer counties. All, he said, should be argued in Kanawha County.
Olivia Hudok was warned Sept. 7 and Sept. 10 that she would be denied admission to the school, where she is one of only three seniors, if she failed to get proof of immunization.
The complaint her father filed says she'll "suffer irreparable harm by being denied her fundamental right to an education" and requests an injunction barring the school district from enforcing its plan.
West Virginia and Mississippi, it notes, are the only states that currently don't recognize religious exemptions regarding vaccinations.
If the county prevails in court, Phares said, it could have potentially negative implications for the school.
Should Olivia Hudok refuse to get vaccinated, the school system would consider her a dropout, Phares said. That would compromise the school's "adequate yearly progress" figures by slashing the graduation rate from the typical 100 percent to 67 percent.
"It only takes one who drops out to bushwhack all those ratings," he said.