Boone Co. Judge Rules In Favor Of Health Dept. In Chickenpox Lawsuit

Wednesday, April 3, 2019 at 10:53 AM

By Mike Perleberg @mikedup84

An Assumption Academy student sued after being told to stay away from school because he did not have the chickenpox vaccine.

Chickepox blister. Photo by Rozmiar pierwotny, Wikimedia Commons.

(Boone County, Ky.) - A northern Kentucky teenager who is not vaccinated against chickenpox will not be allowed to return to school.

Boone County Judge James Schrand denied 18-year-old Jerome Kunkel's request to go back to Assumption Academy in Walton on Tuesday, ruling that Northern Kentucky Health Department officials are required by law to enforce a ban on unvaccinated students during illness outbreaks.

As the small Catholic school faced a chickenpox outbreak affecting about a third of its roughly 100 students in March, the health department ordered students without the vaccine to not attend school or participate in extracurricular activities.

Kunkel and his parents objected to the chickenpox vaccine on religious grounds. The school basketball player argued that the vaccine is “derived from aborted fetal cells.”

They filed the lawsuit in Boone County Circuit Court in mid-March.

In his order, Judge Schrand determined that the health department is required by state law 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.”

The Northern Kentucky Health Department issued a statement indicating it was pleased with the local judge’s ruling.

“The Court’s ruling, which 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,” the health department’s statement read.

Kunkle’s attorney said Wednesday that he will appeal the decision. Chris Wiest insists the health department did not follow the 2013 Kentucky Religious Freedom Restoration Act in using the least restrictive means to meet a compelling government interest.

“The Court impermissibly shifted the burden to us, and ignored the statutory requirements of Kentucky RFRA. The Court made no findings that they met that burden. In fact, there was no evidence in the record that the department used the least restrictive means as Kentucky law required. Rather, their evidence was that they used “reasonable means,” but that is not what the law requires of them,” said Weist.