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Judge rules NKY Health has right to keep unvaccinated kids out of school amid chickenpox outbreak

Posted at 8:34 PM, Apr 02, 2019
and last updated 2019-04-02 20:39:24-04

WALTON, Ky. — A Boone County Circuit Court judge on Tuesday ruled against a Catholic school student who argued the Northern Kentucky Health Department’s effort to restrict unvaccinated students from attending class amid an active chickenpox outbreak was a form of religious discrimination.

The health department was pleased, spokesman Steve Divine wrote in a news release: “The Court’s ruling … underscores the critical need for Public Health Departments to preserve the safety of the entire community, and in particular the safety of those members of our community who are most susceptible to the dire consequences when a serious, infectious disease such as varicella, is left unabated and uncontrolled."

Eighteen-year-old Jerome Kunkel was not, and lawyer Chris Wiest said his team could appeal the decision.

Kunkel has never received a chickenpox vaccine because of his family's religious objections to its history — although the modern vaccine contains no fetal tissue, it was first derived from a cell line obtained from a pair of aborted fetuses in the 1960s.

Chickenpox began to circulate at his school, Assumption Academy, and the nearby Our Lady of the Secret Heart in early February. By Feb. 21, with 18 students sick, health department officials 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. He and his parents met with health department officials in an unsuccessful attempt to contest the ban.

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.

Kunkel sued. In the initial filing, he alleges the restrictions were motivated by a specific religious prejudice against him and that health department representatives made derogatory comments about his faith. He also claimed both sets of bans infringed on his right to freedom of religion, and keeping him out of class — he still takes tests and completes homework — prevents him from learning effectively.

Judge James Schrand’s Tuesday ruling dealt a blow to the teenager’s legal effort but might not end it. Lawyer Wiest said he planned to meet with the Kunkel family and other interested parties Wednesday to decide whether to appeal.

Wiest argued the ban was not only discriminatory but ultimately ineffective because of the close-knit nature of the Assumption community, whose largely unvaccinated members socialize and share food and drink each week during Communion.

Dr. Lynne Saddler of the Northern Kentucky Health Department argued her agency had a responsibility to do what it could to protect the public.