Legislators make laws. Simple enough, right? Not in West Virginia. A lawsuit filed in August by the grassroots movement "We the Parents" against West Virginia Department of Health and Human Resources (DHHR) and The Bureau for Public Health was dismissed in October by Kanawha County Circuit Court Judge Tod Kaufman. On the surface, it may seem that the lawsuit was about vaccines.
In actuality, the lawsuit was about DHHR overstepping their authority. The rule they made just happened to be about vaccines. Yes, "We the Parents" does advocate for the same exemptions to compulsory vaccination already permitted in 48 other states, but this case is about much more than vaccines. It's about unelected bureaucrats making laws.
The back story to this suit is that annually from 2004-2008 the Bureau for Public Health tried to have vaccines for school entry added through bills in the West Virginia Legislature. Their bills never passed. And in 2008, the Bureau for Public Health published an "Interpretive Rule" that mandated students entering school for the first time in West Virginia have more vaccines than required by West Virginia Code 16-3-4. The additions were vaccination against hepatitis B, chicken pox and mumps. Again in 2011, an "Interpretive Rule" was used, adding vaccine requirements for 7th and 12th graders against meningitis, tetanus, diphtheria and pertussis. Among other changes, this rule gave county health officers the power to decline a medical exemption written by a child's licensed medical doctor. An Interpretive Rule does not require legislative approval.
West Virginia Code 16-3-4 requires that students be vaccinated against measles, rubella, polio, tetanus, diphtheria and pertussis (whooping cough). The argument by "We the Parents" is that students who are in compliance with the law are unfairly being kept out of school. In fact, parents whose children were removed from school for non-compliance with the rule were receiving notices threatening jail time for truancy and threats of Child Protective Services involvement even though they tried to send their children to school. That's right! These children were in full compliance with the laws made by the West Virginia Legislature, yet faced civil and criminal penalties.
After Judge Kaufman denied an injunction which would have allowed the hundreds (if not thousands) of students across the state back in school, three families took the fight to their local courts in Mercer, Randolph and Ohio counties. In all of those cases, the judges granted injunctions and ruled that the children, in full compliance with the law, had a fundamental right to an education, and as such, the local boards of education were required to provide those students with said education. They each decided to provide that education via homebound instruction rather than permitting the students back into school. Those three cases were put on hold pending a ruling in the primary case in Kanawha County.
Media outlets across the state reported on the 7th and 12th grade boosters. Many counties reported dozens, even hundreds of children being denied school entry while some counties were reporting 100 percent compliance with the rules, but failed to report those students who dropped out, who changed to home schooling and those who, under the threats of jail time, were coerced into compliance.
In August, just hours after the injunction was denied in Kanawha County, the West Virginia Board of Education adopted a policy supporting the rules made by DHHR. It was that move which gave DHHR the authority to make rules which impose criminal and civil sanctions on the people of West Virginia. In the dismissal of the Kanawha County Case, Judge Kaufman stated, "The Board of Education has, by adoption through C.S.R. 126-51-5.2, given the (Bureau for Public Health) Commissioner's rule 'the force and effect of law.'" Because the state Board of Education is not required to have legislative approval for their rules, and because they adopted the rules established by The Bureau for Public Health, a law has been made by an administrative agency when attempts to add the requirements the "right" way failed.
The cases in Ohio County, Randolph County and Mercer County will move forward regarding the rights of the children to attend school when they are in compliance with State Code, but not the Interpretive Rule. "We the Parents" will appeal to the West Virginia Supreme Court. All West Virginians should stand behind them, speak out, and demand that only our elected officials be given the authority to make laws. As citizens, we must look beyond the topic of the rule and into the process which was used to bypass our elected law-making body.
Guest columnist Raymer is a resident of Moundsville.