Unvaccinated Kentucky students can be banned from schools in outbreaks, court says

County officials can ban unvaccinated students from schools when an infectious disease has spread, according to an appeals court ruling called a “resounding victory” for a Kentucky health department.

The Northern Kentucky Health Department said the court’s decision was a “victory for public health in Kentucky.” It called its department’s actions to ban unvaccinated students from Assumption Academy in Walton reasonable, appropriate, and necessary to control the spread of a highly infectious disease.

The three-judge panel of the Kentucky Court of Appeals said, “The commonwealth has a compelling interest in taking limited and temporary steps to control an outbreak of a vaccine-preventable disease.”

Assumption student Jerome Kunkel sued the health department over the attendance ban after the outbreak at his school and Our Lady of the Sacred Heart Elementary.

Kunkel — now a recent graduate — had not been vaccinated because the immunization contained aborted fetal cells, which was against his religion. Other unvaccinated students and their families eventually joined Kunkel’s case.

The appeals court rejected arguments from Kunkel’s team that the health department inappropriately acted without laboratory confirmation that a string of illnesses was chickenpox and that the department could have imposed other less, restrictive measures to control the spread of the illness. Kunkel also argued unsuccessfully that the health department acted in retaliation.

Chickenpox typically is a mild disease. But serious complications can occur, including bacterial infections of the skin and soft tissues, pneumonia or encephalitis (infection or inflammation of the brain), according to the Centers for Disease Control and Prevention.

Before banning unvaccinated students from school beginning March 15, the Northern Kentucky Health Department required the school in February to cancel school events until 21 days after the onset of rash for the last ill student. The department allowed the school’s basketball team to participate in games leading to the state tournament if the players passed a test that indicated if students were immune to the chickenpox virus. Kunkel and one other player did not show immunity to the virus.

The health department said it took more steps to contain the illness as the number of infections increased. By March 14, there were at least 32 students or 13 percent of the student body with chickenpox at the two schools, according to the health department.

The health department could have done even more to prevent the spread of the outbreak, according to the appeals court.

“The Cabinet for Health and Family Services could have implemented an emergency regulation requiring vaccination of all persons within the epidemic area,” according to the ruling written by Judge Shea Nickell. A church shares a ventilation system with Assumption Academy, the ruling said.

The court also noted that only two new cases were reported once the ban on unvaccinated students in school was imposed.

The ruling re-affirmed Boone County Judge James Scrand’s decision in favor of the health department from early April. Following the initial ruling, Kunkel told WCPO the ban violated his religious beliefs.

“I’m definitely devastated by the judge’s ruling,” he told WCPO. “It doesn’t seem logical to me.”

Kunkel became sick with chickenpox in early May, according to his lawyer. Schoolwide attendance bans for unvaccinated students expired May 18 and the school closed for summer on June 1, according to the ruling.

It’s unclear if there will be further appeals.

This story was originally published July 1, 2019 at 11:11 AM.