UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 09-2352
JENNIFER WORKMAN, individually and as guardian of M.W., a minor; M.W., a minor,
Plaintiffs - Appellants,
v.
MINGO COUNTY BOARD OF EDUCATION; DR. STEVEN L. PAINE, State Superintendent of Schools; DWIGHT DIALS, Superintendent Mingo County Schools; WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Defendants – Appellees,
and
MINGO COUNTY SCHOOLS; STATE OF WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Defendants,
MARTHA YEAGER WALKER, in her capacity as Secretary of the West Virginia Department of Health and Human Resources; DR. CATHERINE C. SLEMP, in her capacity as State Health Director for the West Virginia Department of Health and Human Resources,
Third Party Defendants – Appellees.
-------------------------------------
CHILDREN’S HEALTHCARE IS A LEGAL DUTY, INCORPORATED; AMERICAN ACADEMY OF PEDIATRICS, INCORPORATED, West Virginia Chapter; CENTER FOR RURAL HEALTH DEVELOPMENT, INCORPORATED; WEST VIRGINIA ASSOCIATION OF LOCAL HEALTH DEPARTMENTS; IMMUNIZATION ACTION COALITION, INCORPORATED,
Amici Supporting Appellees.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:09-cv-00325)
Argued: December 9, 2010 Decided: March 22, 2011
Before AGEE and WYNN, Circuit Judges, and Patrick Michael DUFFY, Senior United States District Judge for the District of South Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Agee and Senior Judge Duffy concurred.
ARGUED: Patricia Ann Finn, PATRICIA FINN, ATTORNEY, PC, Piermont, New York, for Appellants. Charlene Ann Vaughan, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia; Joanna Irene Tabit, STEPTOE & JOHNSON, LLP, Charleston, West Virginia, for Appellees. ON BRIEF: Michelle E. Piziak, J. A. Curia III, STEPTOE & JOHNSON, LLP, Charleston, West Virginia, for Appellees Mingo County Board of Education and Dr. Steven L. Paine; Silas B. Taylor, Managing Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee Dwight Dials. Braun A. Hamstead, HAMSTEAD & ASSOCIATES, LC, Martinsburg, West Virginia; James G. Dwyer, Professor of Law, MARSHALL WYTHE SCHOOL OF LAW, College of William & Mary, Williamsburg, Virginia, for Amici Supporting Appellees.
Unpublished opinions are not binding precedent in this circuit.
2 WYNN, Circuit Judge:
Plaintiff Jennifer Workman filed this 42 U.S.C. § 1983
action against various West Virginia state and county officials,
alleging that Defendants violated her constitutional rights in
refusing to admit her daughter to public school without the
immunizations required by state law. The district court granted
summary judgment to Defendants. We now affirm.
I.
Workman is the mother of two school-aged children: M.W. and
S.W. S.W. suffers from health problems that appeared around the
time she began receiving vaccinations. In light of S.W.’s
health problems, Workman chose not to vaccinate M.W.
Workman’s decision not to allow vaccination of M.W. ran
afoul of West Virginia law, which provides that no child shall
be admitted to any of the schools of the state until the child
has been immunized for diphtheria, polio, rubeola, rubella,
tetanus, and whooping cough. W. Va. Code § 16-3-4. However,
Workman sought to take advantage of an exception under the
statute, which exempts a person who presents a certificate from
a reputable physician showing that immunization for these
diseases “is impossible or improper or other sufficient reason
why such immunizations have not been done.” Id. Thus, in an
effort to enroll M.W. in the Mingo County, West Virginia, school
3 system without the required immunizations, Workman obtained a
Permanent Medical Exemption (“the certificate”) from Dr. John
MacCallum, a child psychiatrist.
Dr. MacCallum recommended against vaccinating M.W. due to
S.W.’s condition. Mingo County Health Officer, Dr. Manolo
Tampoya approved the certificate and indicated that it satisfied
the requirements for M.W. to attend school in Mingo County.
M.W. attended the pre-kindergarten program at Lenore Grade
School in Lenore, West Virginia for approximately one month in
September 2007.
On September 21, 2007, the Superintendant of Mingo County
Schools, Defendant Dwight Dials, sent a letter to Dr. Cathy
Slemp, the acting head of the West Virginia Department of Health
and Human Resources, stating that a school nurse had challenged
Workman’s certificate. Dr. Slemp responded by letter dated
October 3, 2007, recommending Workman’s request for medical
exemption be denied. On October 12, 2007, Rita Ward, the Mingo
County Pre-K Contact, sent Workman a letter notifying her that
“as of October 12, 2007 [M.W.] will no longer be attending the
Preschool Head Start Program at Lenore Pre-k-8 School in Mingo
County.”
M.W. did not attend school again until 2008, when she was
admitted into a Head Start Program that accepted Dr. MacCallum’s
certificate. However, when M.W. aged out of that program, Mingo
4 County Schools would not admit her; accordingly, Workman home-
schooled M.W.
Workman brought suit individually and as parent and
guardian of her minor child, M.W. She filed an amended
complaint on May 11, 2009 against the Mingo County Board of
Education; Dr. Steven L. Paine, State Superintendant of Schools;
Dwight Dials, Superintendant of Mingo County Schools; and the
West Virginia Department of Health and Human Resources
(“Defendants”).
In her complaint, Workman raised constitutional and
statutory claims, and sought a declaratory judgment, injunctive
relief, and damages. Specifically, she alleged that Defendants’
denial of her application for a medical exemption violated her
First Amendment rights. She further alleged that Defendants’
denial of her application for a medical exemption constituted a
denial of Equal Protection and Due Process. In addition,
Workman alleged that Defendants violated West Virginia Code
Section 16-3-4 by refusing to accept Dr. MacCallum’s
certificate.
In a memorandum opinion and order of November 3, 2009, the
district court determined that the Mingo County Board of
Education and the West Virginia Department of Health and Human
Services were entitled to Eleventh Amendment immunity from
Workman’s claims. The district court further concluded that
5 Workman’s constitutional claims lacked merit. Finally, the
district court ruled that, after dismissing all federal claims,
it lacked jurisdiction to hear Workman’s remaining state law
claim for injunctive relief and it could discern no statutory
basis for a damage claim. The district court therefore granted
Defendants summary judgment. Workman appeals.
II.
We first address Workman’s argument that this case presents
issues of material fact precluding summary judgment. Summary
judgment is appropriate only where there are no genuine issues
of material fact and a party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). Workman argues that this case
presents two material issues of fact: (1) whether Defendants
acted “properly” in overturning Workman’s medical exemption
pursuant to state law; and (2) whether Workman’s religious
beliefs are sincere and genuine.
Workman frames the first issue as “whether or not the Mingo
County Board of Education, Superintendent Dials, and State
Superintendent Dr. Paine’s rejection of the medical exemption
was legal.” Brief of Appellant at 14 (emphasis added). The
district court ruled that it lacked jurisdiction to hear
Workman’s state law claim for injunctive relief and saw no
indication that state law provided a cause of action for
6 damages. Workman does not explain how such purely legal
determinations raised any triable issue of fact. Accordingly,
we hold that the district court did not err in ruling that this
issue did not preclude summary judgment. See United States v.
West Virginia, 339 F.3d 212, 214 (4th Cir. 2003) (“Because this
dispute ultimately turns entirely on a question of statutory
interpretation, the district court properly proceeded to resolve
the case on summary judgment.”).
Regarding the second issue, the district court stated:
“Since it is not necessary for me to resolve this issue, I
decline the opportunity to evaluate the nature of Ms. Workman’s
beliefs.” Indeed, the district court appears to have assumed
the sincerity of Workman’s religious beliefs but ruled that
those “beliefs do not exempt her from complying with West
Virginia’s mandatory immunization program.” Because a different
resolution of this issue would not change the outcome of the
case, it, too, did not preclude summary judgment. See JKC
Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d
459, 465 (4th Cir. 2001) (“The existence of an alleged factual
dispute between the parties will not defeat a properly supported
motion for summary judgment, unless the disputed fact is one
that might affect the outcome of the litigation.”).
In sum, the district court did not err in finding that no
genuine issues of material fact precluded summary judgment.
7 III.
Workman next argues that West Virginia’s mandatory
immunization program violates her right to the free exercise of
her religion. The First Amendment provides that “Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . .” U.S. Const.
amend. I. The First Amendment has been made applicable to the
states by incorporation into the Fourteenth Amendment. Cantwell
v. Connecticut, 310 U.S. 296, 303 (1940).
Preliminarily, we note that the parties disagree about the
applicable level of scrutiny. Workman argues that the laws
requiring vaccination substantially burden the free exercise of
her religion and therefore merit strict scrutiny. Defendants
reply that the Supreme Court in Employment Div., Dep’t of Human
Res. of Or. v. Smith, 494 U.S. 872 (1990), abandoned the
compelling interest test, and that the statute should be upheld
under rational basis review. Workman counters that Smith
preserved an exception for education-related laws that burden
religion. We observe that there is a circuit split over the
validity of this “hybrid-rights” exception. See Combs v. Homer-
Center School Dist., 540 F.3d 231, 244-47 (3rd Cir. 2008)
(discussing circuit split and concluding exception was dicta).
However, we do not need to decide this issue here because, even
assuming for the sake of argument that strict scrutiny applies,
8 prior decisions from the Supreme Court guide us to conclude that
West Virginia’s vaccination laws withstand such scrutiny.
Over a century ago, in Jacobson v. Massachusetts, 197 U.S.
11 (1905), the Supreme Court considered the constitutionality of
a statute that authorized a municipal board of health to require
and enforce vaccination. Id. at 12. Proceeding under the
statute, the board of health of Cambridge, Massachusetts, in
response to an epidemic, adopted a regulation requiring its
inhabitants to be vaccinated against smallpox. Id. Upon
review, the Supreme Court held that the legislation represented
a valid exercise of the state’s police power, concluding “we do
not perceive that this legislation has invaded any right secured
by the Federal Constitution.” Id. at 38 (emphasis added).
In Prince v. Massachusetts, 321 U.S. 158 (1944), the
Supreme Court considered a parent’s challenge to a child labor
regulation on the basis of the Free Exercise Clause. Id. at
164. The Court explained that the state’s “authority is not
nullified merely because the parent grounds his claim to control
the child’s course of conduct on religion or conscience. Thus,
he cannot claim freedom from compulsory vaccination for the
child more than for himself on religious grounds.” Id. at 166
(footnote omitted). The Court concluded that “[t]he right to
practice religion freely does not include liberty to expose the
9 community or the child to communicable disease or the latter to
ill health or death.” Id. at 166-67.
In this appeal, Workman argues that Jacobson dealt only
with the outbreak of an epidemic, and in any event should be
overruled as it “set forth an unconstitutional holding.” Brief
of Appellant at 11. Workman’s attempt to confine Jacobson to
its facts is unavailing. As noted by one district court, “[t]he
Supreme Court did not limit its holding in Jacobson to diseases
presenting a clear and present danger.” Boone v. Boozman, 217
F. Supp. 2d 938, 954 (E.D. Ark. 2002) (footnote omitted).
Additionally, we reject Workman’s request that we overrule
Jacobson because we are bound by the precedents of our Supreme
Court. Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam)
(“[A] precedent of this Court must be followed by the lower
federal courts no matter how misguided the judges of those
courts may think it to be.”)
Workman also argues that because West Virginia law requires
vaccination against diseases that are not very prevalent, no
compelling state interest can exist. On the contrary, the
state’s wish to prevent the spread of communicable diseases
clearly constitutes a compelling interest.
In sum, following the reasoning of Jacobson and Prince, we
conclude that the West Virginia statute requiring vaccinations
as a condition of admission to school does not
10 unconstitutionally infringe Workman’s right to free exercise.
This conclusion is buttressed by the opinions of numerous
federal and state courts that have reached similar conclusions
in comparable cases. See, e.g., McCarthy v. Boozman, 212 F.
Supp. 2d 945, 948 (W.D. Ark. 2002) (“The constitutional right to
freely practice one’s religion does not provide an exemption for
parents seeking to avoid compulsory immunization for their
school-aged children.”); Sherr v. Northport-East Northport Union
Free Sch. Dist., 672 F. Supp. 81, 88 (E.D.N.Y. 1987) (“[I]t has
been settled law for many years that claims of religious freedom
must give way in the face of the compelling interest of society
in fighting the spread of contagious diseases through mandatory
inoculation programs.”); Davis v. State, 294 Md. 370, 379 n.8,
451 A.2d 107, 112 n.8 (Md. 1982) (“Maryland’s compulsory
immunization program clearly furthers the important governmental
objective of eliminating and preventing certain communicable
diseases.”); Cude v. State, 237 Ark. 927, 932, 377 S.W.2d 816,
819 (Ark. 1964) (“According to the great weight of authority, it
is within the police power of the State to require that school
children be vaccinated against smallpox, and that such
requirement does not violate the constitutional rights of
anyone, on religious grounds or otherwise.”).
11 IV.
Workman next argues that West Virginia’s immunization
requirement violates her right to equal protection. The Equal
Protection Clause of the Fourteenth Amendment provides that
“[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. “To succeed on an equal protection claim, a
plaintiff must first demonstrate that he has been treated
differently from others with whom he is similarly situated and
that the unequal treatment was the result of intentional or
purposeful discrimination.” Morrison v. Garraghty, 239 F.3d
648, 654 (4th Cir. 2001). Here, Workman’s equal protection
claim challenges the West Virginia statute as-applied and
facially.
Regarding her as-applied challenge, Workman argues that the
school system discriminated against her when Defendant Dials
inquired into the validity of her exemption. The district court
found, however, that Workman presented “no evidence of unequal
treatment resulting from intentional or purposeful
discrimination to support her claim.” Indeed, Dials submitted
an affidavit in which he stated that “we had never dealt with a
request for a medical exemption during my tenure as
Superintendant . . . .” Although Workman asserts that Dials and
Paine used the statute and accompanying regulations improperly,
12 she points to no evidence of unequal treatment, and we see none.
Consequently, the district court did not err in ruling Workman’s
as-applied challenge was without merit. See Hanton v. Gilbert,
36 F.3d 4, 8 (4th Cir. 1994) (rejecting equal protection
challenge when record revealed no evidence of discrimination).
Regarding her facial challenge, Workman notes that the
statute does not provide an exemption for those with sincere
religious beliefs contrary to vaccination. She argues that the
statute therefore discriminates on the basis of religion. The
district court ruled that, although a state may provide a
religious exemption to mandatory vaccination, it need not do so.
The Supreme Court held as much in Zucht v. King, 260 U.S.
174 (1922), where it considered an equal protection and due
process challenge to ordinances in San Antonio, Texas, that
prohibited a child from attending school without a certificate
of vaccination. Id. at 175. The Court stated that Jacobson
“settled that it is within the police power of a State to
provide for compulsory vaccination.” Id. at 176. “A long line
of decisions by this court . . . also settled that in the
exercise of the police power reasonable classification may be
freely applied, and that regulation is not violative of the
equal protection clause merely because it is not all-embracing.”
Id. at 176-77.
13 Further, in Prince, a mother argued that her religion made
the street her church and that denying her child access to the
street to sell religious magazines violated her right to equal
protection. 321 U.S. at 170. The Supreme Court explained that
the public highways do not become religious property merely by
the assertion of a religious person. Id. at 170-71. “And there
is no denial of equal protection in excluding [Jehovah’s
Witnesses’] children from doing [on the streets] what no other
children may do.” Id. at 171.
Here, Workman does not explain how the statute at issue is
facially discriminatory; indeed, her complaint is not that it
targets a particular religious belief but that it provides no
exception from general coverage for hers. 1 Following the Supreme
Court’s decisions in Zucht and Prince, we reject Workman’s
contention that the statute is facially invalid under the Equal
Protection Clause.
1 Several courts have declared unconstitutional religious exemptions from mandatory vaccination statutes. See, e.g., McCarthy, 212 F. Supp. 2d at 948-49 (invalidating religious exemption from Arkansas compulsory immunization statute); Brown v. Stone, 378 So. 2d 218, 223 (Miss. 1979) (invalidating religious exemption from Mississippi compulsory immunization statute).
14 V.
Workman next argues that denying her a religious exemption
from the mandatory vaccination statute violates her substantive
due process right to do what she reasonably believes is best for
her child. Workman asserts that, because the statute infringes
upon a fundamental right it must withstand strict scrutiny. She
contends that the statute fails strict scrutiny because West
Virginia has no compelling interest to justify vaccinating M.W.
The Due Process Clause “provides heightened protection
against government interference with certain fundamental rights
and liberty interests.” Washington v. Glucksburg, 521 U.S. 702,
720 (1997). To determine whether an asserted right is a
fundamental right subject to strict scrutiny under the Due
Process Clause, a court must (1) consider whether the asserted
right is deeply rooted in the Nation’s history and tradition;
and (2) require a careful description of the asserted liberty
interest. Id. at 720-21. Where a fundamental right is not
implicated, the state law need only be rationally related to a
legitimate government interest. Id. at 728.
As in Boone, “the question presented by the facts of this
case is whether the special protection of the Due Process Clause
includes a parent’s right to refuse to have her child immunized
before attending public or private school where immunization is
a precondition to attending school.” Boone, 217 F. Supp. 2d at
15 956 (footnote omitted). We agree with other courts that have
considered this question in holding that Workman has no such
fundamental right. See Zucht, 260 U.S. at 176-77; Boone, 217 F.
Supp. 2d at 956; Bd. of Educ. of Mountain Lakes v. Maas, 56 N.J.
Super. 245, 264, 152 A. 2d 394, 404 (N.J. Super. Ct. App. Div.
1959).
Indeed, the Supreme Court has consistently recognized that
a state may constitutionally require school children to be
immunized. See Prince, 321 U.S. at 166-67; Zucht, 260 U.S. at
176; cf. Jacobson, 197 U.S. at 31-32 (noting that “the principle
of vaccination as a means to prevent the spread of [disease] has
been enforced in many States by statutes making the vaccination
of children a condition to their right to enter or remain in
public schools.”). This is not surprising given “the compelling
interest of society in fighting the spread of contagious
diseases through mandatory inoculation programs.” Sherr, 672 F.
Supp. at 88. Accordingly, we conclude that Workman has failed
to demonstrate that the statute violates her Due Process rights.
VI.
Workman also argues that the district court erred in ruling
that certain Defendants were protected by the Eleventh
Amendment. The District court ruled that only Defendants Mingo
County Board of Education and the West Virginia Department of
16 Health and Human Resources were entitled to Eleventh Amendment
immunity. “While we ordinarily would decide an immunity claim
before reaching the merits of the underlying claim, when the
complaint alleges no claim against which immunity would attach,
we need not decide the immunity issue.” Jackson v. Long, 102
F.3d 722, 731 (4th Cir. 1996) (citation omitted). Because
Workman’s constitutional claims against all Defendants fail, we
need not determine whether the district court erred in applying
Eleventh Amendment immunity to some of them.
VII.
Finally, Workman argues that subject matter jurisdiction
exists over her state law claims. The district court ruled
that, after dismissing all of Workman’s federal claims, it
lacked jurisdiction to hear her state law claim for injunctive
relief. The district court also saw no indication that West
Virginia law permits a private cause of action for damages
against Defendants Paine and Dials.
Workman contends that the district court “can retain
jurisdiction over [state law claims] even if it dismisses the
federal claims.” Brief of Appellant at 35. In general, this is
a correct statement of supplemental jurisdiction. See 28 U.S.C.
§ 1367; but see Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 106 (1984) (holding Eleventh Amendment prohibits
17 federal courts from instructing state officials on how to
conform their conduct to state law). Yet “district courts may
decline to exercise supplemental jurisdiction over a claim . . .
if . . . the district court has dismissed all claims over which
it has original jurisdiction.” 28 U.S.C. § 1367(c)(3) And
“trial courts enjoy wide latitude in determining whether or not
to retain jurisdiction over state claims when all federal claims
have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110
(4th Cir. 1995). There is no indication that the district court
abused its discretion in dismissing Workman’s state law claims. 2
VIII.
In sum, we hold that the district court did not err in
awarding summary judgment where there were no genuine issues of
material fact. Workman’s constitutional challenges to the West
Virginia statute requiring mandatory vaccination as a condition
of attending school are without merit. Finally, the district
2 In her reply brief, Workman makes additional arguments regarding the district court’s ruling on her state law claims. Because Workman failed to raise those arguments in her opening brief, we consider the arguments waived. Fed. R. App. P. 28(a)(9)(A); Yousefi v. U.S. I.N.S., 260 F.3d 318, 326 (4th Cir. 2001) (per curiam).
18 court did not abuse its discretion in declining to exercise
jurisdiction over Workman’s remaining state law claims.
AFFIRMED