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Appeals court upholds Boone County judge's ruling in chickenpox outbreak case

Posted at 11:07 AM, Jul 01, 2019
and last updated 2019-07-01 11:07:44-04

WALTON, Ky. — The Kentucky Court of Appeals has sided with the Northern Kentucky Health Department in the case of an unvaccinated student who was banned from attending school.

Last week, the court upheld the Boone County Circuit Court’s findings that NKY Health acted appropriately in response to a chickenpox outbreak at Assumption Academy earlier this year.

Jerome Kunkel, 18, refused to get the vaccine because of his conservative Catholic faith.

“The 2005 Vatican statement says the use of these vaccines with aborted fetal cells in them is morally wrong,” Kunkel, a star on the basketball team, said in April. “It’s always going to pose a moral issue.”

Chickenpox began to circulate at Kunkel’s school, Assumption Academy, and the nearby Our Lady of the Sacred Heart in early February. By Feb. 21, 18 students were sick and the health department contacted school administrators to implement containment and awareness strategies.

The initial plan was to bar all unvaccinated students from attending extracurricular competitions with other schools, but principal Father Daniel Muscha objected: That would ban the entire basketball team. Only 18 percent of the student body was fully vaccinated.

Muscha and the health department subsequently agreed to allow basketball players to compete as long as they passed an immunity test. Two failed — and one of them was Kunkel. 

By March 14, the Assumption outbreak had grown to 32 suspected cases in a student body of 240. The health department began restricting students from attending class unless they could prove they were vaccinated or otherwise immune from chickenpox.

In a news release Monday, NKY Health officials said the department “strives every day to prevent disease, promote wellness and protect against health threats in the Northern Kentucky community.”

Kunkel’s attorney, Chris Wiest, told WCPO that he and his client are “disappointed” by the Court of Appeals’ order. They are working to determine if they will appeal to the Supreme Court of Kentucky. Wiest said he’d like the case tried before a Boone County jury next year.