B.W.C. v. Randall Williams

B
                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 20-1222
                        ___________________________

 B.W.C.; J.R.; Mykala N. Martin; Brian Robinson; Michael W. Cheek; I.E.G.M.;
Linda D. Cheek; Amber Robinson; W.B., a minor, by and through his parents and
     next of friends; Zach Baker, Individually; Audrey Baker, Individually

                                     Plaintiffs - Appellants

                                        v.

   Randall Williams, Director of the Missouri Department of Health & Senior
Services; Clever R-V School District; Miller County R-III School District; Bobbie
 Grant, in his individual capacity; Christina Stamper, in her individual capacity;
Crossroads Academy-Central Street; Karis Parker, in her individual capacity; Eva
 Copeland, in her individual capacity; Eric S. Schmitt, in his official capacity as
                            Missouri Attorney General

                                 Defendants - Appellees
                        ___________________________

                                No. 20-2207
                        ___________________________

   G.B., a minor, by and through their parents and next friends, Zach Baker and
Audrey Baker; J.B., a minor, by and through their parents and next friends, Zach
 Baker and Audrey Baker; W.B., a minor, by and through their parents and next
friends, Zach Baker and Audrey Baker; Zach Baker, individually; Audrey Baker,
                                   individually

                                     Plaintiffs - Appellants

                                        v.
Crossroads Academy-Central Street; Karis Parker, in her individual capacity; Eva
 Copeland, in her individual capacity; Dr. Rex Archer, in his official capacity, as
Director of the City of Kansas City, Missouri Health Department; Bridgette Casey,
  in her official capacity, as Director of the Jackson County Health Department,
governed and operated by the Truman Medical Center Board; Randall Williams, in
 his official capacity, as Director for the Missouri Department of Heath & Senior
  Services; Eric S. Schmitt, in his official capacity as Missouri Attorney General

                                    Defendants - Appellees
                                  ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                           Submitted: January 12, 2021
                               Filed: March 5, 2021
                                ____________

Before GRUENDER, BENTON, and STRAS, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Plaintiffs challenge Missouri’s form to claim a religious exemption from
mandatory immunizations for school children, as violations of their First and
Fourteenth Amendment rights. The district court1 dismissed all claims. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

      Plaintiffs are children enrolled or seeking to reenroll in Missouri public
schools (and their parents).2 Plaintiffs have sincere religious objections to


      1
       The Honorable Howard F. Sachs, United States District Judge for the
Western District of Missouri.
      2
      B.W.C. graduated before oral argument, so his case is moot. Steele v. Van
Buren Pub. Sch. Dist., 

845 F.2d 1492

, 1495 (8th Cir. 1988). B.W.C. and his parents,

                                        -2-
immunization. The school children were notified they could not attend school if
they did not file their religious objections on a specific form, Missouri Department
of Health and Senior Services Form 11. See 19 C.S.R. § 20-28.010(1)(C)(2).3
Plaintiffs refused to file it. Instead, some filed a separate statement of their
objections to immunization. The Baker children were disenrolled from school until
they filed the form. See § 167.181.2, RSMo 2016 (“It is unlawful for any student to
attend school unless he has been immunized as required under the rules and
regulations of the department of health and senior services.”); 19 C.S.R. § 20-
28.010(1)(A) (“Students cannot attend school unless they are properly immunized
and can provide satisfactory evidence of the immunization or unless they are
exempted.”).

      Form 11 has two parts: first, a DHSS message to parents about the exemption;
second, a parent’s election of religious exemption, along with a checklist of the
immunizations the child refuses for religious reasons (including an “other”
category). Plaintiffs do not challenge the exemption’s scope. See § 167.181.2-.3,
RSMo 2016. Instead, they object to signing Form 11 because of DHSS’s message
on the top of the form. The entire text of this message says:

      We strongly encourage you to immunize your child, but ultimately the
      decision is yours. Please discuss any concerns you have with a trusted
      healthcare provider or call the immunization coordinator at your local
      or state health department. Your final decision affects not only the
      health of your child, but also the rest of your family, the health of your
      child’s friends and their families, classmates, neighbors, and
      community. Unimmunized children have a greater risk of contracting
      and spreading vaccine-preventable diseases to babies who are too
      young to be fully immunized due to medical conditions. In the event of


Michael W. and Linda D. Cheek, thus no longer have standing. Schanou v.
Lancaster Cty. Sch. Dist. No. 160, 

62 F.3d 1040

, 1042-43 (8th Cir. 1995).
      3
       Authorized by § 167.181.1-.2, RSMo 2016, approved in G.B. v. Crossroads
Acad.-Cent. St., No. WD 83756, 

2020 WL 7221558

, at *6 (Mo. App. Dec. 8, 2020),
reh'g and/or transfer denied (Feb. 2, 2021).

                                         -3-
      an outbreak of a vaccine-preventable disease within a particular facility,
      children who are not fully immunized or do not have documented
      laboratory evidence of immunity shall not be allowed to attend school
      or day care until the local health authority declares the designated
      outbreak or health emergency has ended.

Department of Health and Senior Services, Religious Immunization Exemption,
accessed                on               January               27,              2021,
https://health.mo.gov/living/wellness/immunizations/pdf/Immp11a.pdf. To get an
official copy of the form requires either requesting a copy by phone or mail or going
in-person to a DHSS or county health office (where plaintiffs fear subjection to
forced education sessions about vaccines). See 19 C.S.R. § 20-28.010(1)(C)(2)
(“The Imm.P.11A form . . . may be obtained by contacting a medical provider, local
public health agency, or the department's Bureau of Immunization Assessment and
Assurance at PO Box 570, Jefferson City, MO 65102-0570, or by calling 800-219-
3224.”).

       The plaintiffs claim that the Form 11 and “vaccine education” violate their
rights to free speech (or unconstitutionally conditions their speech), free religious
exercise, and equal protection, along with a hybrid rights claim. “We review de
novo the district court’s decision to dismiss plaintiffs’ complaint.” McAuley v. Fed.
Ins. Co., 

500 F.3d 784

, 787 (8th Cir. 2007).

                                           I.

       The plaintiffs argue Form 11 compels their speech and thus is
unconstitutional. “[F]reedom of speech prohibits the government from telling
people what they must say.” Rumsfeld v. Forum for Acad. & Institutional Rights,
Inc., 

547 U.S. 47

, 61 (2006). “[T]he government may not deny a benefit to a person
on a basis that infringes his constitutionally protected . . . freedom of speech even if
he has no entitlement to that benefit.”

Id. at 59.

It is unconstitutional to require
“schoolchildren to recite the Pledge of Allegiance and to salute the flag.”

Id., citing West Virginia

Bd. of Ed. v. Barnette, 

319 U.S. 624

, 642 (1943). The Court “held


                                          -4-
unconstitutional another [law] that required New Hampshire motorists to display the
state motto—‘Live Free or Die’—on their license plates.”

Id., citing Wooley v.

Maynard, 

430 U.S. 705

, 717, 

97 S. Ct. 1428

, 

51 L. Ed. 2d 752

(1977) (brackets
added). In those two cases there was “a Government-mandated pledge or motto that
the school [or driver] must endorse.”

Id. at 62

(brackets added). “The right to
eschew association for expressive purposes is likewise protected.” Janus v. Am.
Fed’n of State, Cty., & Mun. Employees, Council 31, 

138 S. Ct. 2448

, 2463 (2018).
“If there is any fixed star in our constitutional constellation, it is that no official, high
or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or
other matters of opinion or force citizens to confess by word or act their faith
therein.” 

Barnette, 319 U.S. at 642

. “[T]he speaker has the right to tailor the speech,
[which] applies not only to expressions of value, opinion, or endorsement, but
equally to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am.
Gay, Lesbian & Bisexual Grp. of Bos., 

515 U.S. 557

, 573 (1995) (brackets added),
distinguished by Agency for Int’l Dev. v. All. for Open Int’l Soc’y, Inc. (“USAID”),

140 S. Ct. 2082

, 2088 (2020) (describing Hurley as a case “involving speech
misattribution between formally distinct speakers”). If a speaker acts identifiably as
a conduit for the message of another, then intermediate scrutiny attaches. See
Turner Broadcasting System, Inc. v. FCC, 

512 U.S. 622

, 655-56 (1994). A content-
neutral regulation is constitutional if “it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest.”

Id. at 662,

citing United States v. O'Brien, 

391 U.S. 367

, 377 (1968).

       Form 11 does not require the plaintiffs to affiliate with DHSS’s immunization
statement. See 

USAID, 140 S. Ct. at 2088

(holding that USAID was “not forcing
plaintiffs to affiliate” with the agency’s anti-prostitution pledge). Instead, Form 11
states the government’s position, separated from the religious opt-out. Unlike a
student required to recite the Pledge or a motorist required to display the state’s
motto, there is no confusion here: it is the government’s message to parents
considering Form 11. Pleasant Grove City v. Summum, 

555 U.S. 460

, 467 (2009)


                                            -5-
(“A government entity has the right to speak for itself. It is entitled to say what it
wishes, and to select the views that it wants to express.” (cleaned up)). There is
“little risk” recipients of the form would believe that parents opting out were
affiliating with the government’s request not to opt out. See 

Turner, 512 U.S. at 656

. There is also “little risk” recipients would believe that the parents were
compelled to “mouth support for views they find objectionable,” 

Janus, 138 S. Ct. at 2463

, or “‘pledge allegiance’ to a state-sponsored message.” 

USAID, 140 S. Ct. at 2091

(Breyer, J., dissenting).

       Plaintiffs’ position that Form 11 compels them to state the government’s
position does not match the structure or wording of the form. The DHSS message
refers to “you” and “your,” directing its message to the parents using the second-
person. School officials receiving the form would know they are not the ones
making the decision for “your child.” The bold line separating the DHSS message
and the opt-out confirms this.

       Plaintiffs argue, at length, that Form 11 precludes them from speaking their
objections to immunization in another manner. Nothing in Missouri’s law or
regulations precludes submitting additional statements of religious objection. See
19 C.S.R. § 20-28.010(1)(C)(2). The Bakers’ school, for instance, did not decline
their submission of their religious objection; instead, they required Form 11 in
addition to the Bakers’ statement. Form 11 is thus a required administrative floor
for exemption that does not ban other communication between parents and their
child’s school. Since Form 11 does not compel speech, restrict speech, or
incidentally burden speech, Form 11 does not violate plaintiffs’ free speech rights.

                                         II.

       Plaintiffs argue Form 11 abridges the free exercise of their religion. “[T]he
right of free exercise does not relieve an individual of the obligation to comply with
a valid and neutral law of general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or proscribes).” Employment


                                         -6-
Div. v. Smith, 

494 U.S. 872

, 879 (1990) (quotation omitted). Religious exercise is
not burdened unless “compliance cause[s] the objecting party to violate its religious
beliefs, as it sincerely understands them[.]” Little Sisters of the Poor Saints Peter
& Paul Home v. Pennsylvania, 

140 S. Ct. 2367

, 2389 (2020) (Alito, J., concurring)
(brackets added), citing Burwell v. Hobby Lobby, 

573 U.S. 682

, 723-26 (2014). In
Little Sisters of the Poor the Court considered “submission of the self-certification
form required by the accommodation because without that certification their plan
could not be used to provide contraceptive coverage.”

Id. at 2391.

Since submission
of the opt-out form triggered contraception coverage for employees, the Little Sisters
saw filing the form as moral complicity.

Id. A. Form 11

does not require the plaintiffs to engage in conduct against their
religious beliefs. Plaintiffs object to the process of producing vaccines or
introducing vaccines into their children’s bodies. Unlike Little Sisters of the Poor,
submission of Form 11 does not increase the number of vaccines produced or force
their children to get immunized. Unlike the Little Sisters’ objection to triggering the
apparatus of securing contraception, Form 11 does not make plaintiffs morally
complicit in the production or use of vaccinations.

       Form 11 tries to inform parents before they consent to opt out. “[I]nformed-
consent laws . . . serve the legitimate purpose of reducing the risk that a [person]
may elect [a procedure], only to discover later, with devastating psychological
consequences, that her decision was not fully informed.” Doe v. Parson, 

960 F.3d 1115

, 1119 (8th Cir. 2020) (brackets added). See § 192.072.1-.2, RSMo 2016
(“[T]he department of health and senior services shall develop educational materials
which strongly recommend . . . vaccines . . . and shall include information regarding
possible risks and benefits and requirements regarding informed consent associated
with childhood vaccines, which shall be provided to parents or legal guardians of the
child.”).



                                         -7-
       As in Doe, Form 11 communicates neutrally to anyone considering opting out
on religious grounds that the government discourages it, but “the ultimate decision
is yours”—the parents’. The form states the government’s neutral and generally
applicable position that immunization prevents childhood diseases, and thus should
be required for school attendance.

                                         B.

      Plaintiffs do not plead specific facts about forced immunization education.
See Ashcroft v. Iqbal, 

556 U.S. 662

, 678 (2009). Plaintiffs do not claim their county
of residence has a vaccine education requirement; their pleadings allege only
examples from other (non-party) counties.

      Even if the plaintiffs were correct that they would have to listen to pro-
immunization messages from DHSS, their claim would be foreclosed by Rounds:
“[W]hile the State cannot compel an individual simply to speak the State’s
ideological message, it can use its regulatory authority to require a physician to
provide truthful, non-misleading information relevant to a patient’s decision to have
an abortion, even if that information might also encourage the patient to choose
childbirth over abortion.” Planned Parenthood v. Rounds, 

530 F.3d 724

, 734–35
(8th Cir. 2008) (en banc). “[I]f the physician may completely disassociate himself
or herself from the state’s ideological message, then the physician’s compelled
speech rights are not implicated.”

Id. at 736.

       Just as the state may use its regulatory authority to require a physician to
provide truthful information relevant to a patient’s decision to have an abortion, the
state could also require county health officials to provide truthful information
relevant to a parent’s decision to decline immunizations.




                                         -8-
                                          C.

       Plaintiffs also argue that Form 11 targets religious people and violates their
right to equal protection. “In determining if the object of a law is a neutral one under
the Free Exercise Clause, we can also find guidance in our equal protection cases. .
. . neutrality in its application requires an equal protection mode of analysis.”
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 

508 U.S. 520

, 540
(1993) (quotation omitted). “When otherwise eligible recipients are disqualified
from a public benefit solely because of their religious character, we must apply strict
scrutiny.” Espinoza v. Montana Dep’t of Revenue, 

140 S. Ct. 2246

, 2260 (2020)
(quotation omitted). The Court has “long recognized the rights of parents to direct
the religious upbringing” of their children.”

Id. at 2261.

State law cannot
“penalize[] [those] decision[s] by cutting families off from otherwise available
benefits [because of religion], and for no other reason.”

Id. (brackets added). Form

11 does not target religious believers or violate their right to equal
protection.4 The defendants do not treat the plaintiffs differently than any other
parent requesting an exemption from immunization: they were all required to submit
a DHSS form to their school. See 19 C.S.R. § 20-28.010(1)(C)(1) (“Medical
Exemption . . . The exemption shall be provided on an original Department of Health
and Senior Services' form Imm.P.12 and shall be placed on file with the school.”).
Unlike Espinoza, where a school’s religious status automatically disqualified
Montana students from scholarships, Missouri allows parents to practice their
religion while also sending their children to school. The defendants did not
specifically target plaintiffs for unequal treatment.




      4
        Plaintiffs claim expulsion violates equal protection and exceeds the scope of
statutory authority. This is wrong. § 167.181.1-.2 (making it “unlawful” for
immunization noncompliant students to attend without an exemption); 19 C.S.R. §
20-28.010(1)(C)(2) (prescribing the process for submitting written exemption).

                                          -9-
                                           III.

       Plaintiffs argue they have asserted a “hybrid right” that requires strict scrutiny.
“The Free Exercise Clause in conjunction with other constitutional protections, such
as freedom of speech, can bar application of a neutral, generally applicable law.”
Telescope Media Grp. v. Lucero, 

936 F.3d 740

, 759 (8th Cir. 2019) (cleaned up).
Strict scrutiny applies to hybrid rights claims.

Id. at 760.

Nevertheless, this court
previously expressed skepticism about application of hybrid rights analysis in a
mandatory vaccination case because Arkansas did not even consider “the merits of
the Schoolchildren's beliefs.” McCarthy v. Ozark Sch. Dist., 

359 F.3d 1029

, 1033
(8th Cir. 2004). This lack of individual consideration typifies valid programs. See

Smith, 494 U.S. at 884

(valid programs do not consider a person’s “particular
circumstances”).

       Plaintiffs have not stated a hybrid rights claim. Plaintiffs attempt to mix-and-
match rights to free speech, free exercise of religion, equal protection, bodily
integrity, educational due process,5 and to direct the upbringing of their children.6
Each of these claims fails on its own, so this case in not in “the class of hybrid
situations in which the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech, can bar application of a neutral, generally




      5
        The Bakers’ school provided clear written notice of the violation and met
with the parents well in advance of its decision to disenroll their children, which
satisfies due process. See Goss v. Lopez, 

419 U.S. 565

, 580 (1975).
      6
        “[N]either rights of religion nor rights of parenthood are beyond limitation. .
. . Thus, [a parent] cannot claim freedom from compulsory vaccination for the child
more than for himself on religious grounds. The right to practice religion freely does
not include liberty to expose the community or the child to communicable disease
or the latter to ill health or death.” Prince v. Massachusetts, 

321 U.S. 158

, 166–67
(1944) (brackets added).


                                          -10-
applicable law.” 

Lucero, 936 F.3d at 759

(cleaned up). The district court correctly
dismissed any hybrid rights claim. 7

                                   *******

      The judgment is affirmed.
                      _____________________________




      7
        As demonstrated, there is no constitutional violation to form the basis of
plaintiffs’ 42 U.S.C. § 1983 claim, much less a “likely violation.” See Rodgers v.
Bryant, 

942 F.3d 451

, 456 (8th Cir. 2019). Injunctive relief is also inappropriate.

                                       -11-

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