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Student can continue studies

Board of Education to provide homebound educator

September 29, 2012
By Beth Christian Broschart and Anthony Gaynor - Staff Writers , The Inter-Mountain

(Editor's note: Although The Inter-Mountain previously identified the plaintiffs in this vaccination case prior to the complaint being filed, after the student's family spoke publicly about the issue, Judge Jaymie Godwin Wilfong ordered Friday in court that the media only identify the juvenile and her father by their initials. The judge also mandated that no photos be taken of the juvenile during the proceedings.)

Circuit Judge Jaymie Godwin Wilfong ordered on Friday that the Randolph County School System provide homebound educational services to a Pickens High School senior who had been barred from attending classes.

The student, a juvenile identified in court as O.H., was told by officials earlier this month not to return to school because of her refusal to get mandatory immunizations.

She and her father, identified in court as P.H., filed a complaint against the Randolph County Board of Education and Superintendent James Phares on Sept. 11, demanding they grant a religious exemption allowing her to return to school.

In her ruling Friday, Wilfong ordered the school system to provide educational services for O.H. until there is a final resolution in Kanawha County Circuit Court, where the state's Department of Health and Human Resources' rule that all seventh- and 12-graders receive Tdap and MCV4 booster vaccinations is being challenged.

"Based on what I have heard, a stay will be granted based on the decision in Kanawha County," Wilfong said. "My concern is that in the meantime, the juvenile has a constitutional right to education."

Wilfong said the family could choose to homeschool the girl, but otherwise the school system is obligated to provide for her education.

Attorney Patrick Lane, representing the juvenile and her father, said the father would prefer the county to provide a homebound instructor for his daughter.

O.H. has not attended classes since Sept. 10, when a letter from the county Board of Education warned her not to come back to school until she received the necessary vaccinations. Although the board is not counting her absent, O.H. has received no formal education since that date.

"The child is out of school," Lane told the court. "She is trying to keep up. She is being denied a constitutional benefit."

Lane said teachers at Pickens have been providing students with materials to take to O.H. in an effort to keep her up to date on her studies. Wilfong commended the teachers for doing their best to help the situation.

During the hearing, Charlene A. Vaughan, the state deputy attorney general, representing the state Department of Health and Human Resources, filed a motion to intervene in the case. Vaughan said the DHHR rule is at the heart of the complaint.

"We need to be involved," she said.

Wilfong granted the intervention to allow the DHHR to be added to the suit.

Greg Bailey, representing the Randolph County School System, asked the court to dismiss the injunction because did not create the rule, but only was enforcing policy set by the DHHR.

Bailey argued that O.H. was not being denied her right to an education because she has not submitted to the required immunizations, noting that she was not being counted absent.

Bailey also argued that since the DHHR was admitted as a party in the case, it could no longer be heard in Randolph County because of jurisdictional issues. He said any time a state agency is named in a lawsuit, it must be filed in Kanawha County Circuit Court.

Wilfong denied the motion to dismiss the injunction.

After the hearing, Dr. James Phares, superintendent of Randolph County Schools, said Wilfong's ruling was what he'd anticipated.

"It is a fair decision," Phares said. "I do, however, disagree with the motion not to dismiss, because the whole issue is with the DHHR."

West Virginia and Mississippi are the only states that do not allow a religious exemption for the booster vaccinations.



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