Morrisey tells WV schools head to comply with vaccine exemptions executive order

In state Superintendent Michele Blatt’s initial correspondence to superintendents across the West Virginia, she indicated that they should direct schools to abide by the current required immunization program for school-age children because of the West Virginia Legislature’s lack of action in passing a law that dictated otherwise.

As she noted, legislation to allow for vaccine exemptions on religious or philosophical grounds failed to pass the Legislature earlier this year. State code currently requires schoolchildren to show proof of immunization for various vaccines, including diphtheria, pertussis, measles and polio, unless they provide a medical exemption.

In her statewide correspondence, Blatt wrote: “While it is our understanding [the Department of Human Services] intends to continue to issue non-enforcement letters under the Governor’s Executive Order to parents seeking religious exemptions, we are faced with the fact that state law has not been changed by the Legislature and there is no religious exemption provided for in West Virginia law.�

However, less than two hours later, Blatt rescinded her memo, apparently at the governor’s request. In her update, she noted that schools should follow Morrisey’s Jan. 14 Executive Order 7-25, which invokes 2023’s House Bill 3042, nicknamed the Equal Protection for Religion Act, to allow for religious and other objections to the state’s school vaccination mandates.

The executive order requires the commissioner for the Bureau of Public Health to establish a process for parents/guardians to request religious or philosophical exemptions to school-age vaccines. A simple note from a parent or guardian will suffice.

Blatt said, “At the [governor’s] request, I am rescinding the memo I sent earlier today regarding vaccine exemptions. We are working collaboratively with the Governor’s office to issue clear guidance to counties on how to comply with Executive Order 7-25. The Governor’s office has informed me that the West Virginia Department of Health will continue to review and grant religious exemptions to compulsory school vaccine requirements, and counties should honor those exemption requests that have been duly granted.�

Morrisey praised Blatt’s about-face on the issue.

“I’m glad the State Superintendent rescinded her memo,� the governor said in a statement Monday. “And I look forward to working closely with the Department of Education to give clear and straightforward direction to counties on how to comply with my executive order. Counties should be honoring the religious exemptions to vaccine requirements granted by the West Virginia Department of Health.�

Legislator, school officials respond

In an op-ed published by WV News, Delegate Kathie Hess Crouse, R-Putnam, defended Morrisey’s directive.

“The Executive Order created a vital pathway for parents to protect their children based on sincerely held religious beliefs or philosophical objections — rights that are recognized in nearly every other state in the nation,� Hess Crouse wrote, in part. “Superintendent Blatt’s memo was wrong, both legally and morally. The Executive Order remains in effect and should be enforced. School boards do not have the legal authority to defy the Executive Branch, and no bureaucrat has the power to erase parental rights with a single-page memo.�

It appears that Tom Williams, superintendent of Kanawha County Schools, and Tim Hardesty, superintendent of Cabell County Schools, will follow Morrisey’s executive order.

Williams said in a statement, “Kanawha County Schools is committed to ensuring the health and safety of all students while adhering to state and federal laws. As such, we will follow what the law dictates regarding vaccine exemptions. We respect the legal processes in place and will continue to comply fully with all applicable regulations and guidance provided by the West Virginia Department of Education and the governor’s office.�

Hardesty echoed Williams’ sentiment.

“As of now, Cabell County Schools will be continuing the practice of honoring religious vaccine exemption requests that have been granted a WV DOHS exemption letter. We appreciate the opportunity to work with the DOHS and WVDE as we continue servicing our students.�

Can an executive order supersede a state law?

Patrick McGinley, retired law professor at West Virginia University, said Morrisey’s executive order on school vaccinations may be problematic.

“The chief executive power is vested in the governor, and his responsibility is to take care that the laws be faithfully executed, not to make law,� McGinley said Monday, emphasizing the current vaccination statute does not provide for religious or personal exemptions and was designed to comprehensively protect students by mandating vaccinations.

Instead of citing West Virginia’s equal protection for religion act as a way to establish an executive order allowing vaccine exemptions, McGinley said, it would be better for people who feel their religious freedom is burdened to use the act as a claim or defense in court.

For that reason, in part, McGinley said he feels the governor’s use of executive orders in this context is attempting to “enlarge the power of the government versus the authority of the legislative branch whose responsibility is to make the law.�

Morrisey’s “excessive� use of executive orders, McGinley said, mirrors a trend coming from the federal government and expanding nationwide.

“The legislature, which is the most representative branch of West Virginia government, represents people throughout the state,� he said. “Governor Morrissey is ignoring the majority will. This is really a power grab by executives throughout many states and the Office of the President to gain power over what are supposed to be the co-equal branches of government.�

McGinley also criticized that “no weight was given by Morrisey to the superintendent or the Board of Education’s perspective on ... their own legal analysis.� He suggested the proper recourse for challenging vaccination requirements would be through the court system. The lifespan of an executive order, which do not have an automatic end date unless otherwise stated, depend on whether it aligns with existing laws or are overturned.

“The governor is not the state official who has authority to determine whether existing statutes [or the state Constitution] are being violated.�

Requests for comments from the Department of Education were not returned Monday.

This was originally reported by WVMetroNews.