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LA School Officials Say 'Optional' Vax Policy Can't Be Challenged

By Alexis Shanes · July 20, 2021, 5:42 PM EDT

Two Los Angeles school officials have urged a California federal judge to toss a suit by a group of teachers and staff who challenged a purported COVID-19 vaccine mandate, saying no such requirement ever existed.

In a Monday brief supporting their June motion to dismiss the case, Los Angeles Unified School District Superintendent Austin Beutner and Human Resources Director Linda Del Cueto said the plaintiffs in their court filings had ignored a March memo written by Del Cueto saying the vaccine was optional.

"Plaintiffs' opposition relies on an erroneous assumption — that defendants have enacted a mandatory COVID-19 vaccination policy," the officials said in their brief. "Not only do plaintiffs fail to support their assertion that defendants implemented a mandatory COVID-19 policy, they acknowledge just the opposite."

The California Educators for Medical Freedom and seven individual plaintiffs "conveniently omitted" the March memo despite attaching more than 100 other documents to their complaint, which was filed the same month, according to the brief.

That memo, which clarified a related note sent out a few weeks earlier, was not issued in response to the lawsuit, nor did it change the defendants' policies, the officials said.

The officials also noted that no school district employees have claimed they were disciplined for their vaccine status or views.

The plaintiffs had pushed back against the motion to dismiss in a June 28 opposition brief, arguing that the school district officials never pledged to steer clear of enforcing a vaccine mandate while the shots still have emergency use status.

But no such mandate exists and the potential harm to the plaintiffs is "too speculative" to justify their suit remaining alive, the defendants said.

"There is no actual controversy," the brief said. "Plaintiffs' concern that the district may mandate the vaccine in the future and that they may be disciplined is as uncertain as the progression of the COVID-19 pandemic itself."

Even if the school district did have a vaccine policy, federal law wouldn't preempt it, the officials argued.

The court can't issue a declaration under the Federal Food Drug and Cosmetic Act's emergency use authorization provision because the law doesn't afford a cause of action to private parties, according to Monday's brief.

Emergency use conditions that allow people to accept or reject a medical product, such as a vaccine, also don't grant individuals the right to sue, the officials added.

The defendants also distinguished the school's policy from that of a private Houston hospital that required all of its staff to get vaccinated, noting that district employees were not asked to choose between their jobs and the vaccine.

Houston Methodist Hospital made headlines after it required staff to get the shot by June 7. A group of workers challenged the mandate unsuccessfully, and 153 members of the hospital system's roughly 26,000-person staff were fired or resigned in protest.

A June 13 ruling upholding the mandate did not distinguish between public and private employers, as the plaintiffs tried to suggest, the school officials noted. And similar to the officials' argument, that ruling dispelled the notion that vaccine requirements make individuals "human guinea pigs" for the shot.

"Plaintiffs are not participants in a human trial," the officials said. "They are teachers and staff members. Plaintiffs' desire to be free from coerced administration of an experimental medicine is, therefore, irrelevant to this analysis and inapplicable under these circumstances."

The plaintiffs dismissed the school district itself from the complaint in late May. A trial is scheduled for June 2022.

Attorneys for the parties did not immediately respond Tuesday to requests for comment.

The plaintiffs are represented by Alyssa Malchiodi, Andrew Nagurney, Michelle Volk and John Howard of JW Howard Attorneys Ltd., and by Brant Hadaway of Hadaway PLLC.

The defendants are represented by Connie Michaels, Donna Leung and Robert Conti of Littler Mendelson PC.

The case is California Educators for Medical Freedom et al. v. The Los Angeles Unified School District et al., case number 2:21-cv-02388, in the U.S. District Court for the Central District of California.

--Additional reporting by Vin Gurrieri and Clark Mindock. Editing by Leah Bennett.

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