Supreme Court Rules Affirmance of Injunction of Vaccine Mandate Will Remain Published

Timothy Kowal, Esq.
March 1, 2023

In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations because that is the prerogative of the the Legislature, who has not enacted such a mandate. The court reasoned that the Superior Court was correct when it ruled that “there was a ‘statewide standard for school vaccination,’ leaving ‘no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates.’ ”

Two charter schools and a former state senator, Richard Pan, who authored SB 277 out of a need for a “statewide standard,” filed a petition to depublish the opinion. The charters, Granada Hills Charter and New West Charter, argued that the Court of Appeal’s opinion “was overly broad and erroneous,” and that it would be “misused to interfere with the prerogatives with the prerogative of public and non-public schools alike.”

Senator Pan argued that individual schools need to be able to set their own vaccination policies. He said that when he had urged, while a senator, a “statewide standard,” he meant only “a minimum standard.” Schools should not be able to ignore or relax state vaccine mandates, according to Pan, but schools should be able to impose new and stricter mandates.

The plaintiff, the parent of a child fully vaccinated except for the Covid vaccine, responded by noting that Education Code section 49405 states that “ on the subject of vaccination shall be adopted by school or local health authorities.” The plaintiff also noted that the opinion meets the requirements for publication under California Rules of Court rule 8.1105 because, among other things, it establishes a new rule of law or applies a new interpretation of existing law, and involves a legal issue of ongoing public interest.

On February 22, 2023, the Supreme Court denied the depublication request, and denied review.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes summaries of cases and appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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