FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 14 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN DOE, an individual; JANE DOE, No. 21-56259 individually and as parent and next friend of Jill Doe, a minor child; JILL DOE, a minor D.C. No. child, by and through her next friend, Jane 3:21-cv-01809-CAB-LL Doe, Southern District of California, San Diego Plaintiffs-Appellants,

ORDER

v.

SAN DIEGO UNIFIED SCHOOL

DISTRICT; RICHARD BARRERA, in his official capacity as Board President; SHARON WHITEHURST-PAYNE, in her official capacity as Board Vice President; MICHAEL MCQUARY, in his official capacity as Board member; KEVIN BEISER, in his official capacity as Board member; SABRINA BAZZO, in her official capacity as Board member; LAMONT JACKSON, in his official capacity as Interim Superintendent,

Defendants-Appellees.

Before: BERZON, IKUTA, and BENNETT, Circuit Judges.

The majority of the panel has voted to deny appellants’ motion for

reconsideration en banc. Judge Berzon and Judge Bennett have voted to deny the motion for reconsideration en banc. Judge Ikuta has voted to grant the motion for

reconsideration en banc.

The full court has been advised of the motion for reconsideration en banc. A

judge of the court requested a vote on en banc rehearing. The majority of the

active judges have voted to deny rehearing the matter en banc. Fed. R. App.

P. 35(f).

The motion for reconsideration en banc is DENIED. Judge Bumatay’s

dissent from the denial of rehearing en banc, Judge Berzon and Judge Bennett’s

concurrence in the denial of reconsideration en banc, Judge O’Scannlain’s

statement respecting the denial of rehearing en banc, Judge Bress’s dissent from

the denial of rehearing en banc, and Judge Forrest’s dissent from the denial of

rehearing en banc are filed concurrently herewith.

Judge Owens did not participate in the deliberations or vote in this case.

2

FILED

JAN 14 2022

John Doe, et al. v. San Diego Unified School District, No. 21-56259 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BUMATAY, J., Circuit Judge, with whom CALLAHAN, IKUTA, R. NELSON, COLLINS, LEE, and VANDYKE, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Here we go again. When it comes to dealing with the COVID-19 crisis, the

“Supreme Court’s instructions have been clear, repeated, and insistent: no COVID-

19 restriction can disfavor religious practice.” Tandon v. Newsom, 992 F.3d 916,

939 (9th Cir. 2021) (Bumatay, J., dissenting in part and concurring in part). The

Supreme Court has again and again admonished this court for failing to follow its

guidance. Indeed, almost a year ago, the Court expressed frustration that, for the

“fifth time,” it had to “summarily reject[] the Ninth Circuit’s analysis of California’s

COVID restrictions on religious exercise.” Tandon v. Newsom, 141 S. Ct. 1294,

1297 (2021) (per curiam) (emphasis added). With this case, our court is gunning for

a sixth.

Jill Doe is a 16-year-old student-athlete at a public high school in San Diego,

California. She plays multiple sports and hopes to earn a college sports scholarship

by excelling at those sports during the upcoming semester. In addition to being an

avid athlete, Jill is devoted to her Christian beliefs. While Doe has developed natural

immunity to COVID-19 from a prior infection, her religious beliefs forbid her from

receiving any of the COVID-19 vaccines. But the San Diego Unified School District

has implemented a COVID-19 vaccine mandate for its students. That mandate

requires all students over the age of 16 to be vaccinated by January 4, 2022, or be 1 banned from attending school in-person starting January 24. While the mandate has

plenty of secular exemptions, it expressly prohibits religious exemptions.

Jill appeals to this court to protect her religious convictions. She requests that

we enjoin enforcement of the District’s vaccine mandate against her before January

24; otherwise, she will be forced into an online, independent study program and

isolated from her teachers and classmates. If she does not succumb to the mandate

and violate her religious beliefs, she will be barred from campus and from playing

on any school sports teams. All this while thousands of other unvaccinated students

will continue to attend San Diego public schools under secular exemptions.

We should not have turned our back on Jill. Our duty is always to safeguard

the people’s rights no matter the challenges facing our communities. And the right

to the free exercise of religion is foremost among our freedoms. It should go without

saying—the Constitution protects Jill Doe’s religious liberty even in times of crisis.

Because the government should never force a student to choose between her

religious beliefs and her education unless such a restriction is the least restrictive

means of achieving a compelling government interest, we should have enjoined the

application of the District’s vaccine mandate in this case.

Today, our court failed Jill Doe on several grounds. But our crucial error was

applying the wrong legal framework to her claim. Tandon teaches us that COVID-

19 regulations trigger strict scrutiny “whenever they treat any comparable secular

2 activity more favorably than religious exercise.” 141 S. Ct. at 1296. Yet the

District’s vaccine mandate not only has numerous comparable secular exemptions,

but expressly prohibits exemptions for the religious. That alone should trigger strict

scrutiny.

Instead, our court rubberstamps the District’s mandate—opting for the anemic

rational basis review. Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1177 (9th

Cir. 2021). We get there by blindly accepting the District’s characterizations of its

secular exemptions, denying the comparability of the religious exemptions, and

speculating about the risks of allowing those with religious exemptions to continue

to attend class on campus. Id. at 1177–80. But these reasons cannot support the

infringement of a fundamental freedom.

Our court’s decision once again disregards Supreme Court precedent and

threatens the religious liberty of tens of thousands of students in one of the largest

counties in the United States. We should have granted en banc review to correct this

grievous mistake before being told to do so yet again.1

1 Separate parties have obtained a “tentative” writ of mandate preventing implementation of the District’s vaccine mandate under state law. Let Them Choose v. San Diego Unified Sch. Dist., No. 37-2021-43172-CU-WM-CTL (Cal. Super. Ct. Dec. 20, 2021) (“SDUSD’s attempt to impose an additional vaccine mandate and force students . . . who defy it into non-classroom-based independent study directly conflicts with state law.”). Yet, as the Supreme Court of California has not definitively resolved this issue, it remained our duty to fix our erroneous decision. 3 I.

A.

The First Amendment commands that government “shall make no law . . .

prohibiting the free exercise [of religion].” U.S. Const. amend. I. In responding to

COVID-19, that means governments may not “single[] out religion for worse

treatment than . . . secular activities.” South Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716, 719 (2021) (statement of Gorsuch, J.) (joined in relevant

part by four other Justices). “When a State so obviously targets religion for

differential treatment,” courts must apply the most exacting scrutiny. Id. at 717.

Last year, California enacted a set of COVID-19 restrictions that “openly imposed

more stringent regulations on religious institutions than on many businesses.” Id.

Five justices of the Court found that this type of naked targeting of religion required

strict scrutiny. Id. at 717–18.

In Tandon, the Court provided a framework for evaluating COVID-19-related

restrictions:

First, “government regulations are not neutral and generally applicable . . .

whenever they treat any comparable secular activity more favorably than religious

exercise.” 141 S. Ct. at 1296 (emphasis in original). And it is “no answer” that the

government treats some secular activity “as poorly as or even less favorably than the

religious exercise at issue.” Id.

4 Second, “whether two activities are comparable for purposes of the Free

Exercise Clause must be judged against the asserted government interest that

justifies the regulation at issue.” Id. (simplified). In judging comparability, we must

look at the “risks various activities pose,” not the purported reasons for the

distinctions. Id. Thus, government regulations cannot treat secular activities more

favorably when they “‘contribute[] to the spread of COVID–19’ or . . . present[]

similar risks” as religious activities. Id. (quoting Roman Catholic Diocese of

Brooklyn v. Cuomo, 141 S. Ct. 63, 67–68 (2020) (per curiam)).

Third, if a regulation is not neutral and generally applicable, “the government

has the burden to establish that the challenged [regulation] satisfies strict scrutiny.”

Id. To do so, the government “must do more than assert that certain risk factors ‘are

always present in worship, or always absent from the other secular activities’ the

government may allow.” Id. (quoting South Bay, 141 S. Ct. at 718 (statement of

Gorsuch, J.)). Instead, strict scrutiny requires “narrow tailoring” and proof that “less

restrictive” measures could not achieve the interest in reducing the spread of

COVID-19. Id. at 1296–97. “Where the government permits other activities to

proceed with precautions, it must show that the religious exercise at issue is more

dangerous than those activities even when the same precautions are applied.

Otherwise, precautions that suffice for other activities suffice for religious exercise

too.” Id. at 1297.

5 Fourth, even if the “government withdraws or modifies a COVID restriction

in the course of litigation, that does not necessarily moot the case.” Id.

B.

The District’s vaccine mandate expressly forbids exemptions for religious

students:

Under San Diego Unified’s vaccine mandate for students who are 16 and older as of November 1, 2021, students who are not fully vaccinated by December 20, 2021 will transition from in-person learning to an independent study program at the start of the new semester and quarter on January 24, 2022. . . .

All students 16 and older who are eligible for the COVID-19 vaccine under the district mandate are required to be vaccinated, excluding those with qualified exemptions or conditional admissions. San Diego Unified does not allow religious exemptions for this particular vaccine. 2

But the District provides at least four secular exemptions to its vaccine

mandate: it allows a student to avoid vaccination if she (1) turns 16 after November

1, 2021; (2) has a medical exemption; (3) is a “conditional student” who has recently

been admitted; or (4) has an individualized education program (“IEP”) under the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(j). See

Doe, 19 F.4th at 1175–76. Additionally, while the District prohibits religious

2 COVID-19 Status, San Diego Unified School District, available at: https://sandiegounified.org/covid-19_status (last visited Jan. 7, 2022). Also available at Appendix A below. 6 exemptions for unvaccinated students, it permits religious exemptions for

unvaccinated staff.

According to Jill, under the District’s system of exemptions, nearly 85% of its

student body will not be subject to the mandate. And for high school students, that

number is over 60%. In real numbers, that translates into over 83,000 San Diego

students, including 21,900 high schoolers, who will be allowed to attend in-person

classes while unvaccinated. These figures provide important context for

understanding the District’s vaccination scheme and the real risks posed by its

system of exemptions.

Under Supreme Court precedent, the question in this case is quite simple:

Does the District’s vaccine mandate treat religious exemptions less favorably than

comparable secular exemptions? If so, we must apply strict scrutiny. The answer

here is plainly “yes.”

First, the District expressly targets the religious for worse treatment in direct

violation of Supreme Court precedent. See South Bay, 141 S. Ct. at 719 (statement

of Gorsuch, J.). The District’s mandate baldly states: “San Diego Unified does not

allow religious exemptions for this particular vaccine.” 3 This statement alone should

trigger strict scrutiny. When the government calls out religion by name, that is a

clarion sign that we are not dealing with a neutral and generally applicable law. See

3 Id. (last visited Jan. 7, 2022). Also available at Appendix A below. 7 Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021) (“Government fails to

act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts

practices because of their religious nature.” (simplified)). Just like in South Bay, the

District’s singling out and rejection of a religious exemption shows that it is

“target[ing] religion for differential treatment.” South Bay, 141 S. Ct. at 717

(statement of Gorsuch, J.). And so, just as in South Bay, such discriminatory actions

cannot stand unless the government can meet its exceptionally demanding burden

under strict scrutiny.

And the District’s justification for its decision has nothing to do with the

health and safety risks involved with a religious exemption. The District admits as

much. On its website, the District explains that because “state law does not

recognize religious or personal belief exemptions,” it cannot provide “religious

exemptions for students.”4 Leaving no doubt about the District’s targeting of

religion, School Board President Richard Barrera explained to the local press that

the District did not want to “create[] kind of a loophole” by allowing a “sort of

personal belief” exemption.5 So the District’s vaccine mandate falls easily into the

4 Back to School FAQ—Vaccines, San Diego Unified School District, https://www.sandiegounified.org/cms/One.aspx?portalId=27732478&pageId=3547 1525#Vaccines (last visited Jan. 7, 2022). Also available at Appendix B below. 5 What you need to know about San Diego Unified’s vaccine mandate, The San Diego Union Tribune, (Sept. 29, 2021), https://www.sandiegouniontribune.com/news/education/story/2021-09-29/what- parents-need-to-know-about-san-diego-unifieds-new-covid-vaccine-mandate. 8 category of regulations nakedly targeting religion. And even if it were true that state

law prevents religious exemptions,6 such a rationale clearly has nothing to do with

the District’s asserted interest in health and safety and cannot save it from strict

scrutiny. And contrary to the District president’s views, religious exercise isn’t a

“loophole,” but a fundamental freedom. So to be faithful to Supreme Court

precedent and our Constitution, we must apply strict scrutiny.

Second, because the District’s secular exemptions pose nearly identical risks

as religious ones, strict scrutiny is again triggered. A few scenarios demonstrate the

irrefutable comparability of risk:

Post-November 1 Birthday Exemption: The District exempts any 16-year-

old student whose birthday falls after November 1, 2021, from the vaccine mandate.7

But this makes no sense from a risk perspective.

Imagine hypothetical students, Timmy and Tommy. Timmy and Tommy are

both classmates and soccer teammates at a San Diego high school. Like Jill Doe,

Timmy is devoutly religious and believes his faith prevents him from taking the

6 A California Superior Court has recently held that the District’s reading of the law is incorrect. See Let Them Choose, supra note 1. 7 See Student Vaccine FAQs, San Diego Unified School District, https://sites.google.com/sandi.net/nursingwellness/covid-19-vaccine/student- vaccine-faqs (“Students who are 16 as of November 1, 2021 will be required to fulfill the vaccine requirement for January 4, 2022. Newly eligible students who turn age 16 after November 1, 2021 will be required to be vaccinated before the start of the new school year Fall 2022.”) (last visited Jan. 7, 2022). Also available at Appendix C below. 9 COVID-19 vaccine. Tommy isn’t so religious, but he prefers not to take the vaccine.

Timmy has the misfortune of being born on October 31. Tommy, meanwhile, was

lucky enough to be born two days later on November 2. Today, both students are

16-years old. Yet, under the District’s mandate, Timmy will be expelled from in-

person classes, forced into online learning, and kicked off the soccer team for being

unvaccinated—all because he adheres to his religious beliefs. Meanwhile, Tommy

will be exempt from the mandate for the entire school year and remain on the soccer

team despite being unvaccinated.

The District, perhaps as a matter of administrative convenience, chooses to

force Timmy into online learning while it allows Tommy to pose an identical risk to

the student body. But the District cannot force Timmy to renounce his faith and

submit to the mandate simply because he was born two days earlier than Tommy.

More fundamentally, the Constitution forbids the government from using

administrative convenience, rather than its asserted interest, to infringe on religious

exercise.

Medical Exemption: The District permits medical exemptions from its

vaccine mandate so long as the student gets a doctor’s note. But once again, the

District’s medical exemption does not further its interest in the health and safety of

the student body.

10 Let’s look at another example. Assume Betty and Bea are 16-year-old twin

sisters attending another San Diego high school. Betty has always been more

devoted to her faith. She sincerely believes that receiving the COVID-19 vaccine

would violate her religion. On the other hand, Bea once had a mild allergy to one of

the components of the vaccine and qualifies for the District’s medical exemption.8

Of course, Betty and Bea share the same home. Both spent time over the holidays

mingling with friends and family. Both are unvaccinated. But starting on January

24, Betty will be banned from campus, while Bea will continue her in-person

education. Each day after school ends, Bea goes back to the same home as Betty,

they eat the same meal, and interact with the same parents. But every morning, Betty

watches her sister go back to school, while she must remain confined at home

indefinitely.

It is abundantly clear that Betty and Bea, both unvaccinated, present the exact

same risk of infecting their fellow students. After all, even beyond their vaccination

status, they are both in constant interaction with the same group of people. But under

the District’s vaccination scheme, Bea’s medical exemption permits her to enjoy the

benefits of an in-person education, while her sister Betty is expelled from campus

8 The medical exemption applies to “[a]nyone with a history of immediate allergic reaction of any severity to any component of the COVID-19 vaccine.” Id. Also available at Appendix D below. 11 and condemned to online schooling—all for the crime of adhering to her religious

beliefs.

Conditional Student Exemption: The conditional student exemption allows

at least four types of new students (foster youth, homeless students, migrants, and

military families) to be conditionally admitted to school without being vaccinated

for 30 days. Say one of these newly enrolled students shows up on campus and is

unvaccinated. The moment he steps foot on campus, he presents the same health

and safety risks as an unvaccinated religious student. Even if these admissions only

last 30 days, a flow of unvaccinated conditional students will remain on campus for

the school year. And it’s unclear what the District intends to do with conditional

students who do not comply with the vaccine mandate after the grace period. The

District’s website only states “that a conditional admission is not an exemption, and

a recurring effort is made by the school nursing team to support the child and family

to access their records or receive a vaccination in a timely manner.” 9 But it’s hard

to imagine that the District will force homeless students to enroll in online schooling.

IEP Exemption: Next, the District permits unvaccinated students with an

IEP to remain on campus pending separate proceedings to bar them from attending

school in person. And there’s no telling how long that will take. But what is clear

is that COVID-19 doesn’t discriminate based on a student’s status under the IDEA.

9 San Diego Unified School District, supra note 7 (last visited Jan. 7, 2022). 12 So an unvaccinated IEP student has an equal chance of being infected and spreading

COVID-19 throughout the school as an unvaccinated religious student.

To sum up, the following factual points about the District’s policy are

uncontested:

• An unvaccinated student born on November 2 can attend in-person classes, while an unvaccinated religious student born on October 31 cannot. • An unvaccinated student with an allergy to the COVID-19 vaccine can attend in-person classes, while an unvaccinated religious student cannot. • An unvaccinated student who conditionally enrolls on campus can attend in- person classes, while an unvaccinated religious student cannot. • An unvaccinated student with an IEP can attend in-person classes, while an unvaccinated religious student cannot.

Taken together, the District’s patchwork of exemptions is inconsistent with

its asserted interest in protecting the health of students from the COVID-19

pandemic. Given that the risks posed by unvaccinated students with secular

exemptions are the same as those posed by unvaccinated religious students, the

District’s failure to provide a religious exemption must be subject to strict scrutiny

under Tandon.

C.

To distract from the obvious similarity of risks created by the secular and

religious exemptions, the panel majority instead focused on the reasons why the

secular exemptions exist. Such an approach flouts the Supreme Court’s commands

in Tandon, which renders nearly irrelevant the reason why secular exemptions are

granted. 141 S. Ct. at 1296. That was a critical error. 13 As the panel majority sees it, the medical exemption makes sense because it

serves the health and safety of the individual student. Doe, 19 F.4th at 1178. But

that is not the District’s stated interest here—it is to combat the spread of COVID-

19 school-district wide. 10 To this day, the District claims that the vaccination of

students in kindergarten through high school is a “major step toward preventing the

spread of the virus in our community and nationwide.”11 So while the medical

exemption is certainly prudent, it undermines the District’s interest in mitigating

risks to the student body by stopping the transmission of COVID-19. In other words,

if the District can grant a reprieve for medical exemptions, it can also do so for the

religious.

The same goes for the IEP exemptions. The panel majority doesn’t seriously

dispute that an unvaccinated IEP student poses a risk of spreading the COVID-19

virus. But it instead justifies that exemption because federal law requires schools to

follow certain protocols to bar student admission. Id. at 1179–80. That may be so,

but I see no reason to defer to a student’s statutory right under the IDEA, while

10 See Vaccinate Roadmap at 2, San Diego Unified School District (Sept. 28, 2021), available at: https://go.boarddocs.com/ca/sandi/Board.nsf/files/C797R4004A4C/$file/Vaccine% 20Mandate%20Plan.pdf (“Why are we recommending mandating vaccines for staff and students? San Diego Unified is working to ensure the highest-quality instruction in the safest environment possible for all students and employees. Strong scientific evidence shows that vaccinations are an essential part of protecting our communities.”) (last visited Jan. 7, 2022). 11 San Diego Unified School District, supra note 2 (last visited Jan. 7, 2022). 14 completely disregarding a student’s constitutional right to the free exercise of

religion.

As for the conditional students, the panel majority again turns to state law.

Though it acknowledges that there is no current California law requiring proof of

COVID-19 vaccination for school attendance, it speculates that such a mandate will

be the law in the future. Id. at 1179. At that point, the majority surmises, conditional

students will be subject to the vaccine mandate. Id. So no one needs to fear; the

majority assures us that these students will be vaccinated soon enough.

Finally, the majority simply has no answer to explain the inexplicable—why

the November 1, 2021, cut-off date for the vaccine mandate has any basis in the

District’s interest in the health and safety of the student body.

Simply put, the District can’t have it both ways by allowing secular

exemptions but prohibiting religious ones. If the District offers any secular vaccine

exemption with a similar risk profile to a religious exemption, it must satisfy strict

scrutiny to exclude a religious exemption. The Constitution forbids the District from

picking and choosing its preferred secular exemptions while disfavoring religious

exemptions. And this remains true in times of crisis. See Tandon, 992 F.3d at 930

(Bumatay, J., dissenting). In short, the panel majority’s attempt to transform the

constitutional inquiry from assessing the comparability of risks to asking whether

15 the District had a good reason for a secular exemption falls well short of what our

Constitution demands.

D.

As a fallback, the panel majority attempts to bolster its position by speculating

on the number of students using the secular exemptions and the length of those

exemptions to justify the exclusion of religious exemptions:

[A]lthough the record does not disclose the number of students who have sought or are likely to seek a medical exemption, if that number is very small and the number of students likely to seek a religious exemption is large, then the medical exemption would not qualify as “comparable” to the religious exemption in terms of the “risk” each exemption poses to the government’s asserted interests.

Doe, 19 F.4th at 1178; see also id. at 1180 (noting that the “limited time period” of

secular exemptions make them incomparable to religious ones). The majority thus

concludes, so long as there won’t be as many secular exemptions as religious

exemptions and so long as secular exemptions won’t last as long as religious ones,

then the District is free to forbid religious exemptions. Id. at 1178–80. In other

words, the government can favor secular interests over religious liberty if that

preferential treatment isn’t permanent or isn’t as popular as the religious interest.

But that’s not how the Constitution works. Whether the First Amendment

right to religious liberty is protected has nothing to do with the number of religious

observers or the persistence of their religious beliefs. As Judge Ikuta noted in her

dissent, even the temporary loss of an individual’s free exercise rights constitutes an 16 unconstitutional infringement. Id. at 1186 (Ikuta, J., dissenting) (“But the majority

identifies no authority suggesting that the School District can treat secular activity

more favorably than religious activity simply because the disparate treatment is only

temporary.”) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.”)).

Even setting aside the majority’s legal errors, the majority relies on unfounded

speculation to reach its desired result. First, the majority suggests that fewer students

will use the medical exemption than the religious exemption. See Doe, 19 F.4th at

1178. But the District’s rules do not cap or otherwise limit the number of students

who are eligible to receive a medical exemption. So, the majority just speculates

that fewer students will avail themselves of the medical exemption. But this sort of

speculative reasoning cannot be used to cast aside a student’s religious liberty. Cf.

Tandon, 141 S. Ct. at 1296 (holding that the government “must do more than assert

that certain risk factors are always present in worship, or always absent from the

other secular activities the government may allow.” (simplified)).

Second, according to the panel majority, the medical exemption is also

temporary and thus distinguishable from the religious exemption. Once again, the

majority relies on wrongheaded speculation. There is no basis to suggest that a

student who has a medical allergy to the COVID-19 vaccine will overcome that

17 allergy and be medically cleared to take the vaccine during the school year. Simply

put, a medical allergy can potentially last a lifetime and so there’s no way for the

majority to know when such medical exemptions will expire. See Doe, 19 F.4th at

1186 n.7 (Ikuta, J., dissenting). Furthermore, the District requires students with

longer-term medical exemptions to reapply for an exemption once a year. Id. at

1178. So one doctor’s note is sufficient to be excused from the mandate for the

school year. In short, it is just as likely that a student with a medical exemption will

retain his condition throughout the school year as a religious student will retain her

faith throughout the school year.

Lastly, no amount of speculation can explain why 16-year-old students with

birthdays after November 1 present less risk to health and safety than religious

students. As the school year goes on, more and more students will turn 16—

increasing the number of students taking advantage of the November 1 exemption.

And once a student turns 16, they are exempt for the rest of the school year—nothing

temporary about that. So there is no conceivable link to health and safety that can

support the District’s arbitrary decision to pick a random date on the calendar while

categorically excluding religious exemptions.

18 E.

Having made clear that strict scrutiny applies, the District’s vaccination

scheme fails to meet that exceptionally high bar. Strict scrutiny requires the District

to further its asserted health and safety interests through narrowly tailored means.

See Tandon, 141 S. Ct. at 1298. The District must show that “measures less

restrictive of the First Amendment activity could not address its interest in reducing

the spread of COVID.” Id. at 1296–97. If the District chooses to allow unvaccinated

students on campus through secular exemptions, it must show how exemptions for

unvaccinated religious students are “more dangerous” to the student body. See id.

at 1297. “Otherwise, [exemptions] that suffice for [secular reasons] suffice for

religious exercise too.” Id. (simplified).

The District can’t meet its burden of showing that the ban on religious

exemptions is the least restrictive means of combatting COVID-19. The undeniable

fact is that San Diego public schools are teeming with students who are

unvaccinated, because of either their birthdays, allergies, learning disabilities, or

familial statuses. Thus, the District has shown that it can accommodate these

students but has barely even tried to prove why it could not offer the same

arrangement to the religious.

Moreover, it turns out that the District does allow some religious

exemptions—but only to unvaccinated staff. That means that unvaccinated teachers,

19 librarians, custodians, coaches, and staff may appear in person if they are religious,

while unvaccinated religious students cannot. No one can seriously deny that

unvaccinated religious staff and unvaccinated religious students pose similar health

and safety risks of spreading COVID-19 on school grounds.12 If the staff exemption

is consistent with the District’s interest in the health and safety of its campuses, it

strains credulity to believe that the District could not offer the same for its students.

For all these reasons, “the vaccine mandate is stricter than necessary to meet

the School District’s asserted goals, and therefore is not narrowly tailored.” Doe, 19

F.4th at 1187 (Ikuta, J., dissenting).

***

In short, Jill has easily proven she’s entitled to an injunction. She has shown

both “serious questions going to the merits” and that “the balance of hardships tips

sharply in [her] favor.” See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,

1131 (9th Cir. 2011) (simplified). As discussed above, the District’s prohibition

against religious exemptions cannot be justified under the First Amendment given

the patchwork of comparable secular exemptions. And no one can question the

hardship that Jill faces—she either will be coerced to violate her religious beliefs

12 Arguably unvaccinated staff pose a greater risk of COVID-19 transmission because they speak and lecture to classrooms of students every day. 20 and take the vaccine or be forced into inferior online classes, harming her education,

wellbeing, and future.

II.

Today, our court allows the threat of COVID-19 to force Jill Doe and other

San Diego students to violate their religious beliefs or face severe punishment.

Expulsion from school. Kicked off sports teams. Isolated from teachers and

classmates. But because our Constitution endures through times of crisis, Jill should

not have to face these life-altering consequences.

I respectfully dissent.

21 Appendix

A.

B.

22 C.

D.

23 John Doe, et al. v. San Diego Unified School District, No. 21-56259 FILED BERZON and BENNETT, Circuit Judges, concurring in the denial of JAN 14 2022 reconsideration en banc: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

The only question presented to the district court and addressed by the

motions panel was whether Doe’s request for an injunction pending appeal should

be granted. Notably, the motions panel’s majority opinion is explicit that, under

Ninth Circuit case law, its reasoning is not binding on the panel to which the

preliminary injunction appeal is assigned.1 Judge Bumatay’s dissent from the

denial of rehearing en banc loses sight of the limited issue the motions panel

decided. It also inaccurately recasts this case. 2

First, Judge Bumatay states that San Diego Unified School District

(“SDUSD”) is requiring all students over the age of 16 to become fully vaccinated

“by January 4, 2022.” Bumatay Dissent at 1–2. SDUSD has explained that,

although students were encouraged to become fully vaccinated by January 4, the

1 See Slip Op. at 10 n.4 (citing E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 660 (9th Cir. 2021)). The opening brief on the merits for that appeal is currently due on January 18, 2022, the answering brief is due on February 17, 2022, and the optional reply brief is due 21 days after service of the answering brief. Oral argument has not yet been scheduled. 2 The motions panel’s majority opinion adequately responds to the dissents from denial of rehearing en banc of Judge Bress and Judge Forrest, and to Judge O’Scannlain’s statement respecting the denial of rehearing en banc, so we do not address them here.

1 actual deadline for vaccination is “the start of the Spring” semester on January 24,

2022.

Second, Judge Bumatay states that the motions panel’s “crucial error was

applying the wrong legal framework to [Doe’s] claim.” Bumatay Dissent at 2. But

the motions panel’s majority opinion and Judge Bumatay’s dissent cite the same

legal rules, including the Supreme Court’s guidance in Tandon that a regulation is

subject to strict scrutiny review when it “treat[s] any comparable secular activity

more favorably than religious exercise.” Tandon v. Newsom, 141 S. Ct. 1294,

1296 (2021) (per curiam); see also, e.g., Slip Op. at 13 (Motions Panel Majority

Opinion); Bumatay Dissent at 2–3. The panel majority applied rational basis

review to the mandate because it concluded that no comparable secular activity

was treated more favorably than religious activity. See Slip Op. at 9–15 (Motions

Panel Majority Opinion). So the disagreement between the panel majority and the

en banc dissenters is fundamentally factual. It is not a dispute over the relevant

legal standards.

Third, Judge Bumatay states that “[s]eparate parties have obtained a

‘tentative’ writ of mandate preventing implementation of” the vaccination

mandate. Bumatay Dissent at 3 n.1. It is our understanding that the writ of

mandate, issued from the bench by the San Diego Superior Court on December 20,

2 2021, is not currently in effect pending appeal by operation of state law. But the

decision itself is final, not tentative. 3

Fourth, Judge Bumatay asserts that the mandate is facially discriminatory

against religion, citing language from a January 7, 2022 screenshot of an SDUSD

webpage, which, at that time, stated that SDUSD “does not allow religious

exemptions for this particular mandate.” Bumatay Dissent at 7. Judge Bumatay

argues that “[t]his statement alone should trigger strict scrutiny.” Id. at 7–8.

But, at the time of the passage of the mandate, its terms did not “make any

reference to religion or ‘a religious practice without a secular meaning discernable

from the language or context.’” Slip Op. at 10 (Motions Panel Majority Opinion)

(quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

533 (1993)). The webpage cited by Judge Bumatay is not in the record. As

presently constituted, the webpage no longer contains any statement about

religious exemptions. 4 And the statement cited by Judge Bumatay was not

included on the webpage at the time of the mandate’s passage or the initiation of

3 See, e.g., Respondents’ Letter re: State Case, Doe v. San Diego Unified Sch. Dist., Case No. 21A217 (Dec. 26, 2021), https://www.supremecourt.gov/DocketPDF/21/21A217/206447/202112261934321 42_Ltr%20Responding%20to%20Applicant%20Ltr%2012262021.pdf. 4 See COVID-19 Information, San Diego Unified Sch. Dist., https://sandiegounified.org/covid-19_status (last visited Jan. 13, 2022).

3 this litigation.5 So the statement is irrelevant for present purposes. Further, even if

the webpage statement were considered relevant, there is no meaningful distinction

between a policy that does not provide religious exemptions but makes no express

mention of that fact, and a policy that does not provide religious exemptions and

includes, for clarity, a statement to that effect. The statement—which, in this case,

may have been included on the SDUSD webpage to inform the community about

the boundaries of the mandate in light of ongoing litigation—does not evince

animus toward or discriminatory treatment of religion. 6

Fifth, Judge Bumatay contends that SDUSD intentionally treated religious

students less favorably than other students because “School Board President

Richard Barrera explained to the local press,” in response to the question whether

students could receive a personal belief exemption, that “the District did not want

5 See The Wayback Machine, https://web.archive.org/web/20201001000000*/https://sandiegounified.org/covid- 19_status (last visited Jan. 13, 2022) (capturing snapshots of the SDUSD webpage at different points in time in 2021 and 2022). 6 A PowerPoint presentation regarding the mandate explained that “[s]tate law does not recognize religious or personal belief exemptions for student immunizations.” Even if the presentation is considered part of the mandate itself, its inclusion of a single, accurate remark about the state law applicable to other required vaccines does not qualify as targeting religion for inferior treatment. See Cal. Health & Safety Code § 120325 (not permitting religious or personal belief exemptions for a list of 10 required vaccinations); see also id. § 120338 (permitting religious or personal belief exemptions for vaccinations “deemed appropriate” by the Department of Public Health but not yet added by name to the Health and Safety Code by the California legislature).

4 to ‘create[] kind of a loophole’” by allowing for such exemptions. Bumatay

Dissent at 8. That statement was made after the School Board adopted the

mandate, and in response to a question that focused on personal belief exemptions,

which the District treats as a distinct category of exemptions separate from

religious exemptions. The statement therefore did not undermine the neutrality of

the mandate as to religion.

Sixth, Judge Bumatay states that “nearly 85%” of SDUSD’s student body

“will not be subject to the mandate,” which “translates into over 83,000 San Diego

students, including 21,900 high schoolers, . . . attend[ing] in-person classes while

unvaccinated.” Bumatay Dissent at 7. That understanding is incorrect. The

mandate applies to students who are 16 or older, those who are 12 to 15, and those

who are 5 to 11 in three stages, “[p]ending FDA approval” of vaccines for each age

group. It cannot be that proceeding in a phased manner in light of ongoing clinical

research and staged FDA vaccine approvals—in other words, doing one’s best to

safely promote the health of students while also complying with federal and state

law—demonstrates animus toward or discriminatory treatment of religion, or that

SDUSD’s policy is not neutral. Additionally, as of September 29, 2021, “more

than 64 percent of [SDUSD] students 12 and older ha[d] received at least one dose

of the Covid-19 vaccine, and more than 57 percent [we]re fully vaccinated.” Many

more have surely been vaccinated against COVID since then, as have many

5 younger children. And, in fact, much of the material submitted by the plaintiffs in

the district court and in plaintiffs’ stay motion seemingly attacked the

constitutionality of the policy not only as applied to Doe, but also as to be applied

to younger students. Judge Bumatay’s figures therefore are not accurate, nor is his

characterization of the scope of the mandate.

Seventh, Judge Bumatay states that SDUSD “exempts any 16-year-old

student whose birthday falls after November 1, 2021, from the vaccine mandate.”

Bumatay Dissent at 9. Such students are not exempt from the mandate. Instead,

they are subject to a different vaccination deadline. And importantly, plaintiffs did

not advance any argument about this subset of students before the district court or

the motions panel. The very first time this argument surfaced before this Court

was in the plaintiffs’ request for reconsideration en banc. The District therefore

had no opportunity to submit any factual information concerning the cutoff date or

to consider whether to vary the birthday deadline for the mandate. Plaintiffs’

argument, and any allegations of fact related to it, should have been presented to

the district court, not in a motion seeking en banc review. If the argument had

been raised earlier, the District may have revised this aspect of the policy, as it did

the now defunct per se pregnancy exemption. See Slip Op. at 6–8, 20 n.1.

Eighth, Judge Bumatay states that SDUSD “permits medical exemptions

from its vaccine mandate so long as the student gets a doctor’s note.” Bumatay

6 Dissent at 10. This characterization of the medical exemption is incorrect. The

medical exemption is “limited to students with contraindications or precautions

recognized by the Centers for Disease Control and Prevention or the vaccine

manufacturer,” and must be “certified by a physician” as necessary for the health

and safety of an individual student. Slip Op. at 11 (Motions Panel Majority

Opinion). The policy also places other limitations on medical exemptions. For

example, if the certifying physician is not the primary care physician of the

student, the student must explain why he or she relied on the services of the

certifying physician. In short, the medical exemption, substantively and

procedurally, is far more stringent than Judge Bumatay’s portrayal. 7

At times, Judge Bumatay appears to view SDUSD’s asserted interest as

confined to single-mindedly suppressing COVID infections, no matter the harm to

a few medically vulnerable students. See, e.g., Bumatay Dissent at 11, 14; see also

7 The prerequisites to obtaining a medical exemption also mean that such exemptions are likely to be either temporary or rare. Indeed, some “precautions” to COVID-19 vaccines, such as “moderate or severe acute illness,” are inherently limited in duration. See COVID-19 Vaccine FAQs for Healthcare Professionals, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/vaccines/covid- 19/hcp/faq.html (last updated Dec. 17, 2021) (under the question, “What are precautions to COVID-19 vaccination?”). And “contraindications” to the vaccine are exceedingly rare. See, e.g., id. (under the question, “What are contraindications to COVID-19 vaccines?”); see also Allergic Reactions Including Anaphylaxis After Receipt of the First Dose of Pfizer-BioNTech COVID-19 Vaccine—United States, December 14–23, 2020, Ctrs. for Disease Control & Prevention (Jan. 6, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/mm7002e1.htm.

7 Bress Dissent at 1–2. But the record demonstrates that SDUSD’s core interest in

promulgating the student vaccination mandate was to promote “the health and

safety of [its] students” overall, including through medical exemptions. The

mandate is consistent with that interest, as it requires vaccination in all cases in

which vaccination will not harm the health and safety of a specific student. See

also, e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020)

(per curiam) (recognizing that the State’s interest was “public health,” not reducing

COVID cases for its own sake); Emp. Div., Dep’t of Human Res. of Or. v. Smith,

494 U.S. 872, 874, 878–82 (1990) (upholding a law criminalizing controlled

substance possession that had an incidental effect of burdening religion even

though the law contained an exemption for substances prescribed for medical

purposes); Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (stating that

“[t]he right to practice religion freely” is not “beyond regulation in the public

interest,” including regulation aimed at reducing the risk of “expos[ing] the

community or the child to communicable disease or the latter to ill health or

death”).

Ninth, Judge Bumatay characterizes the 30-day conditional enrollment

period for foster youth, students in “migrant” status, homeless students, and

military families as an “exemption.” Bumatay Dissent at 12. He also characterizes

the temporary procedural protections for students with Individualized Education

8 Progams as an “exemption.” Id. at 12–13. The motions panel’s majority opinion

explains why those aspects of the mandate do not treat secular activity more

favorably than religious activity and so do not trigger strict scrutiny. Slip

Op. at 13–15 (Motions Panel Majority Opinion). We emphasize, once more, that

these students are not exempt from the mandate. The only students exempt from

the mandate are those who receive a medical exemption. What Doe is requesting

is an exemption, not a delay in the deadline for compliance or further consultation

regarding how and when she must comply. 8

Finally, this case is not Tandon. Tandon concerned an outright ban on group

worship in private homes. 141 S. Ct. at 1296–97. SDUSD is not preventing Jill

Doe from practicing her religion, as was the case in Tandon. Doe may worship as

she pleases and may continue to abstain from vaccination for religious reasons.

The SDUSD policy prevents her only from attending school in person and from

participating in school sports—not from receiving a public education, participating

in private sports leagues, or fully practicing her religion.

8 Judge Bumatay also argues that the student vaccination mandate is not generally applicable because the employee vaccination mandate includes a religious accommodation procedure. Bumatay Dissent at 19–20. But the student vaccination mandate and employee vaccination mandate are distinct policies. And, in any event, the procedure is not a religious exemption. It is a legally required interactive process that may ultimately result in a denial of the requested accommodation, such as on the ground that an exemption would pose an “undue hardship” on the employer by burdening “the conduct of the employer’s business.” Slip Op. at 15–16 (Motions Panel Majority Opinion).

9 In sum, the COVID-19 pandemic has claimed the lives of more than 840,000

Americans. 9 As we explained, “[t]he record indicates that vaccines are safe and

effective at preventing the spread of COVID-19, and that SDUSD’s vaccination

mandate is therefore likely to promote the health and safety of SDUSD’s students

and staff, as well as the broader community.” Slip Op. at 18 (Motions Panel

Majority Opinion). Plaintiffs have not carried their burden to establish “that the

mandate was implemented with the aim of suppressing religious belief, rather than

protecting the health and safety of students, staff, and the community.” Id. at 10.

Accordingly, the motions panel properly denied plaintiffs’ motion for an injunction

pending appeal.

9 Covid Data Tracker, Ctrs. for Disease Control & Prevention, https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Jan. 13, 2022).

10

FILED

JAN 14 2022

Doe v. San Diego Unified School District, No. 21-56259

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

O’SCANNLAIN, Circuit Judge, 1 respecting the denial of rehearing en banc:

I agree with the views expressed by Judge Bumatay in his dissent from

denial of rehearing en banc.

1 As a judge of this court in senior status, I no longer have the power to vote on calls for rehearing cases en banc or formally to join a dissent from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P. 35(a). Following our court’s general orders, however, I may participate in discussions of en banc proceedings. See Ninth Circuit General Order 5.5(a).

FILED

JAN 14 2022

Doe v. San Diego Unified School Dist., No. 21-56259

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BRESS, Circuit Judge, joined by BADE, Circuit Judge, dissenting from the denial

of rehearing en banc:

I would have heard this matter en banc because the panel majority’s analysis

is inconsistent with the analytical approach for Free Exercise Clause claims that the

Supreme Court set forth in Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam).

There are understandable and important reasons why a school district would want to

impose a COVID-19 vaccine mandate for its students. It is also understandable why

a school district may want to exempt some students from that mandate, such as

students who would experience an adverse medical reaction to a vaccine or those

who have just arrived in the area due to a parent’s military transfer. But when a

school district, as here, allows secular exemptions to its vaccine mandate but

disallows exemptions for students with sincerely held religious objections, we must

examine whether the adverse treatment of “comparable” activity by religious

students is justified based on “the risks” of the activity in connection with “the

asserted government interest that justifies the regulation at issue.” Id. at 1296 (citing

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per

curiam)).

Here, there is no indication that the risks of spreading COVID-19 that the

plaintiff poses as an unvaccinated student are any different than the risks posed by other unvaccinated students who are nonetheless allowed to attend school in person

based on an approved secular exemption to the district’s vaccine mandate. That

basic feature of this case required us to apply strict scrutiny, and there is little doubt

that the district’s policy would fail that rigorous review.

The harm here is also substantial. There is, of course, an innate constitutional

harm associated with treating persons with religious objections differently without

justification. And as many parents of schoolchildren would by now attest, the

difference between in-person and virtual learning is a significant one. Requiring the

plaintiff to experience high school through a computer screen when her unvaccinated

classmates can attend school in person based on secular exemptions is not the

situation Tandon envisioned.

Like other of my colleagues who have dissented at both the panel and en banc

stages, I respectfully dissent from the denial of rehearing en banc.

2

FILED

JAN 14 2022

John Doe, et al., v. San Diego Unified School District, No. 21-56259 MOLLY C. DWYER, CLERK FORREST, Circuit Judge, dissenting from the denial of rehearing en banc:U.S. COURT OF APPEALS

I agree that strict scrutiny applies to the plaintiffs’ First Amendment challenge

where the San Diego Unified School District’s COVID-19 vaccine mandate allows

unvaccinated students who are otherwise subject to the mandate to continue

attending school and school activities in-person for secular reasons but requires

students who are unvaccinated for religious reasons to attend online classes and

forgo school activities that cannot be performed remotely. See Tandon v. Newsom,

141 S. Ct. 1294, 1296 (2021) (“[G]overnment regulations are not neutral and

generally applicable, and therefore trigger strict scrutiny under the Free Exercise

Clause, whenever they treat any comparable secular activity more favorably than

religious exercise.”); Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67

(2020). I also agree that plaintiffs have raised “serious questions going to the merits”

of whether the San Diego Unified School District can satisfy strict scrutiny and, as

such, they have shown that they are likely to suffer irreparable harm without a stay

and that the “balance of hardships” weighs in their favor. Alliance for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); see also Roman Cath.

Dioceses, 141 S. Ct. at 67 (“The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.”). We should

rehear en banc the motion for a stay pending appeal.

I respectfully dissent from the denial of rehearing en banc.