Chickenpox vaccine fight: Judge won’t let NKY students back in school

A Boone Count high school student lost his lawsuit challenging an order that barred him from school because he refuses to obtain the chickenpox vaccine.

The Assumption Academy senior sued the Northern Kentucky Independent District Board of Health after it banned students without chickenpox immunity from attending school and extracurricular activities during an outbreak.

Jerome Kunkel, 18, was “devastated” by the ruling, said his lawyer, Christopher Wiest of Covington.

Kunkel is not against all vaccines, he earlier told The Enquirer, but he is opposed to those that used aborted fetal cells in their manufacture, including the chickenpox vaccine.

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

Wiest said he argued in court that the ban would not be effective in halting the spread of chickenpox, which was found in 32 students, about 13 percent of the student body. 

“The chickenpox order makes no sense,” Wiest said. “They all go to daily and weekly mass. The parish receives communion on the tongue. Communion-age kids are going to spread chickenpox. That testimony was unequivocal.”

Wiest said about 30 other students are out of school under the health department’s ban, and they have joined Kunkel’s legal cause. They attend Assumption or Our Lady of the Sacred Heart, an elementary school on the same property as Kunkel’s school.

uesday’s ruling upheld the health department’s authority in Kentucky to implement rules to prevent the spread of contagious diseases.

Mando said early correspondence sent by the health department encouraged students without immunity to avoid interacting in the community to help prevent the disease’s spread.

On Monday during a court hearing, Kunkel asked a judge to let him go back to school and lift a ban that he says the health department imposed in an act of religious retaliation amid an outbreak of chickenpox.

But the lawyer for the health department disputed Kunkel’s claim.

“This is not a case of religious discrimination,” Mando 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?”

During a nearly five-hour hearing, Boone County Circuit Judge James R. Schrand heard from medical experts about chickenpox and the vaccine, which came on the U.S. market in 1995. The issue before Schrand, though, was more narrowly focused on the authority that health officials can apply to citizens when trying to contain a disease.

The lead plaintiff in the case is Kunkel, a senior at the small, private academy, which his extended family raised money to build along with their church, Our Lady of the Sacred Heart. The religious community practices a conservative Roman Catholicism that venerates the Latin Mass and rejects church reforms of Vatican II.

Monday, Wiest argued to Schrand that the school-attendance ban was imposed in retaliation for the Kunkels threatening last month to go to court against the health department.

“We don’t know when it’s going to end unless we do something about it,” Wiest said. “What they did was an overreach, an abuse of office.”

The case arose after chickenpox apparently started sweeping through Assumption Academy and its elementary-level Our Lady of the Sacred Heart School in early February. The health department sent out a warning to parents.

Evidence at Monday’s hearing in Circuit Court showed that only about 18 percent of students at the school have been vaccinated against childhood illnesses such as chickenpox. Kentucky’s statewide vaccination rate for chickenpox is about 90 percent.

In court, Mando pointed out that the state form that the Kunkels signed to get Jerome exempted from vaccines on religious grounds contains the 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.”

In mid-February, the number of suspected chickenpox cases jumped from six to 18. The Assumption Academy boys basketball team was preparing for statewide league playoffs. Local health officials, consulting with state authorities, then banned extracurricular activities to prevent the disease from spreading to other parts of the state.

The ban forbade outside-school activities for 21 days after the last case of chickenpox appeared. Kunkel, the center for the basketball team, and his parents appealed to local and state health authorities that while Jerome had a religious exemption to vaccinations, he was healthy and not contagious.

The health officials said that given the outbreak, there was no telling when Jerome Kunkel might get sick.

The health department issued a statement after the ruling that read, in part:

“We are pleased with the Court’s careful and thorough review of the evidence and legal issues posed in this case. The Court’s ruling … 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.”

Anne Saker and Max Londberg
The Kentucky Enquirer