Northern Kentucky judge rules in favor of health department, denies unvaccinated student’s request to return to school

A judge has ruled against a Catholic high school student in his lawsuit against the Northern Kentucky Health Department, which barred him from school and all extracurricular activities during a chickenpox outbreak because he hadn’t been vaccinated against the disease, Anne Saker and Max Londberg report for the Cincinnati Enquirer.

WLWT-5 reports that Boone County Circuit Judge J.R. Schrand denied the student’s request to return to school, writing that Kentucky law requires the health department to “enforce such rules and regulations as it deems efficient in preventing the introduction or spread of the varicella and to accomplish this, it is required to establish and strictly maintain quarantine and isolation at such places as it deems proper.”

Assumption Academy senior Jerome Kunkel, 18, sued the department after he wasn’t allowed to play basketball during the statewide league playoffs because he hadn’t been vaccinated and didn’t show immunity from the disease.

The case prompted Gov. Matt Bevin to say in a radio interview that the government “should not be forcing this upon people,” after explaining that he had exposed his nine children to chickenpox instead of vaccinating them, a practice that is strongly opposed by health officials as risky.

Kunkel told the Enquirer earlier that he is not against all vaccines, but only the ones that used aborted fetal cells in their making, including the chickenpox vaccine, Saker and Londberg report.

The chickenpox vaccine was first developed using tissue from a pair of aborted fetuses in the 1960s, but the modern vaccine contains no fetal cells. It became available in the U.S. in 1995. The National Catholic Bioethics Center approves the use of the vaccine, and even encourages it.

The health department’s ban called for all students without proof of immunity from chickenpox to not come to school or participate in any extracurricular activities until 21 days after the last case of chickenpox appeared. The health department called for the ban after 32 students, or about 13 percent of the student body, got the disease.

Kunkel’s lawyer, Christopher Wiest of Covington, said about 30 other students were out of school under the ban and had joined Kunkel in his lawsuit, the Enquirer reports. The students either attend Assumption or Our Lady of the Sacred Heart, an elementary school on the same property.

Parents were sent a warning in mid-February, after the number of suspected chickenpox cases jumped from six to 18.

Evidence at the court hearing showed that only about 18 percent of the students at the two schools had been vaccinated against childhood illnesses, like the chickenpox. The state’s vaccination rate for chickenpox is about 90 percent, the Enquirer reports.

Kunkel asked the judge to let him go back to school, saying the ban was imposed on him because of religious retaliation, which the health department denied.

“This is not a case of religious discrimination,” Jeff Mando of Covington, who represented the health department, said. “Instead, it presents this question: Do unvaccinated students at Assumption have the right to attend school, play basketball and attend other extracurricular activities in the face of an outbreak of a very serious and infectious disease at the school?”

Mando pointed out that the state-issued religious exemption form that the Kunkels signed to get Jerome exempted from vaccines contains this warning: “This person may be subject to exclusion from school, group facilities or other programs if the local and/or state public-health authority advises exclusion as a disease-control measure.”

Mando said the ruling “upheld the health department’s mission to protect public health and the welfare of folks in Northern Kentucky.”

The department said in a statement that the ruling “follows on the heels of the Northern Kentucky Health Department receiving national recognition through re-accreditation by the Public Health Accreditation Board, 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.”