Virginia Lawyers Weekly VA Lawyers Weekly
All claims filed by parents challenging a now defunct Fairfax County Public School’s COVID quarantine policy have been dismissed by a Virginia federal court.
The parents’ primary argument was that the policy violated equal protection because it treated their unvaccinated children differently from their vaccinated classmates.
But Judge Leonie M. Brinkema of the Eastern District of Virginia said the parents’ concerns that the county “was irrational to ‘blindly adopt’ CDC guidance” were baseless.
“[T]he CDC provided defendants a rational basis for requiring unvaccinated students who purportedly had natural immunity as a result of having recently recovered from a COVID-19 infection to quarantine after being exposed to a COVID-positive individual, but not requiring the same of vaccinated students,” the judge said.
The July 7 opinion is McArthur v. Brabrand (VLW 022-3-293).
Quarantine rules
Eric and Jenny McArthur have four children who attended Fairfax County Public Schools, or FCPS. None of them were vaccinated against COVID-19. Two of the younger children attended elementary school together.
After the father and one of the younger children tested positive for COVID in late October 2021, the school said the other child had to quarantine for two weeks. Within days, that child showed COVID symptoms. Both children returned to school by mid-November 2021.
In early December 2021, one of the younger children had to quarantine because of potential COVID exposure. FCPS’s policy was that exposed students could return if they were vaccinated and asymptomatic, but unvaccinated students had to quarantine for 10 days.
FCPS subsequently updated its policy to require only a seven-day quarantine if the child remained asymptomatic and COVID negative after the fifth day.
In late January 2022, FCPS notified the McArthurs that both of their younger children must quarantine after another exposure.
FCPS had implemented a new exemption that allowed unvaccinated students to return if they had COVID within the last 90 days; the McArthurs’ infections were too long ago.
By March 2022, FCPS had changed the policy to allow unvaccinated students to attend school after COVID exposure if they wore a mask and tested negative for five days, but by then the McArthurs had already sued two FCPS officials and the county health director. They alleged violations of equal protection, substantive and procedural due process, their right to direct their children’s education under the Virginia constitution, and the Emergency Use Authorization statute.
The defendants moved to dismiss all claims.
The plaintiffs weren’t “deprived of their so-calledright under the EUA to decline the vaccine, as all of [their] children remain unvaccinated, and the quarantine policy has not caused such a loss of education to rise to the level of deprivation.”
– Judge Leonie M. Brinkema
Right to parent
The McArthurs argued that parents have a fundamental right to make decisions concerning the education and care of their children and that the defendants had deprived them of that right “by predicating their children’s ability to obtain an uninterrupted education … upon their receiving … a vaccine.”
But the judge rejected that argument.
Saying the claim “fails for multiple reasons,” Brinkema cited governmental authority to mandate vaccination and found no infringement of rights because the children remained unvaccinated, “making all of plaintiff’s arguments about the ‘injection of chemicals into their bodies’ inapposite.”
Further, the judge referenced “the overwhelming case authority [showing that] defendants have acted within their constitutional authority … in crafting the … policy, which rationally relied on CDC guidance to encourage vaccination to reduce the spread of COVID-19 during a global pandemic which has now lasted over two-and-a-half years.”
Emergency use
The McArthurs also claimed FCPS’ policy conflicted with and was preempted by the federal Emergency Use Authorization, or EUA, statute, which provides that recipients of products approved for use under it must be informed of the option to refuse or accept administration.
They alleged the policy in effect required them to either give their children “an unnecessary, possibly harmful, EUA vaccine” or have them miss school and thereby be deprived of the education their vaccinated peers were receiving.
But Brinkema disagreed, holding that the McArthurs weren’t “deprived of their so-called-right under the EUA to decline the vaccine, as all of [their] children remain unvaccinated, and the quarantine policy has not caused such a loss of education to rise to the level of deprivation.”
Remaining claims
The judge agreed with FCPS that “education is not a ‘fundamental’ right” and dismissed the McArthurs’ equal protection and due process claims.
Because vaccination status isn’t a suspect classification, the judge found no violation of the right to decline treatment. She also held that the CDC guidance wasn’t irrational, even if it disfavored natural immunity.
Finally, Brinkema dismissed the claim that remote learning is inferior, saying “there is no ‘requirement for substantial equity’” under Virginia law.
