Supporters of legislation to end religious and philosophical exemptions to vaccine requirements for Maine school students are shown at the Maine State House in 2019. Two Cumberland County parents want a judge to declare the law from that legislation unconstitutional after they say their unvaccinated 7-year-old son wasn't allowed to attend school. Credit: Marina Villeneuve / AP

Two Cumberland County parents who haven’t vaccinated their 7-year-old son for religious reasons want a judge to declare Maine’s school vaccination requirements unconstitutional.

Gregory and Rita Fox of Cumberland last month sued the state of Maine and its education commissioner, Pender Makin, as well as Maine School Administrative District 51, which serves Cumberland and North Yarmouth, after school officials refused to allow their son to attend without the required vaccinations. 

The lawsuit challenges a Maine law that took effect in September 2021 that eliminated families’ ability to claim religious and philosophical exemptions to the state’s vaccination requirements for public and private school students. 

Gov. Janet Mills signed the bill, L.D. 798, into law in May 2019 at a time when Maine had one of the highest rates of non-medical vaccine opt-outs in the nation, and the legislation later survived a people’s veto attempt at the ballot box. 

Maine students in kindergarten through high school must be immunized against diphtheria, tetanus, whooping cough, polio, measles, mumps, rubella and chickenpox. Students in grades 7-12 also need to be vaccinated against meningitis, according to the Maine Department of Education.

The state does not require that students be immunized against COVID-19. However, the legal challenge to the lack of a religious exemption to the vaccine requirements is reminiscent of a challenge to Mills’ requirement that health care workers be vaccinated against COVID-19. That policy included a medical, but not religious, exemption, which drew a legal challenge from a national Christian organization. The U.S. Supreme Court last fall declined to block Mills’ mandate.

The Foxes said in their lawsuit that their son would have to receive 15 vaccine doses to come into compliance with the state’s vaccine requirements and be allowed to attend school.

There is a small carve-out in the new law that allows students to continue attending school without required immunizations if they had an individualized education plan in place and had cited a religious exemption to the vaccine rules before Sept. 1, 2021. 

The Foxes’ son was allowed to attend kindergarten at the Mabel I. Wilson School during the 2020-21 school year with a religious vaccine exemption. Then, in 2021 their son enrolled again for first grade, but was not allowed to attend school due to the new vaccine requirement, according to the family’s complaint.

MSAD 51 Superintendent Jeffrey Porter formally unenrolled the boy from the district due to his lack of required immunizations in May 2022, the complaint said.

The boy’s brother, who had an individualized education plan in place before Sept. 1, 2021, has been allowed to continue attending school without the required vaccinations, according to the Foxes’ complaint. 

According to the Foxes, their 7-year-old son has attention deficit disorder and would have qualified for an individualized education plan if the school district had tested him for the disorder before Sept. 1, 2021. 

The Foxes are claiming the district’s refusal to allow their son to attend school and the Maine law prohibiting students who are not vaccinated to attend school are violations of their constitutionally protected rights to freedom of religion and equal protection under the Fourteenth Amendment. 

The family wants a judge to find the Maine law “unconstitutional on its face” or “unconstitutional as applied against the Plaintiffs,” the complaint said. 

The lawsuit began in Cumberland County Superior Court, but because it challenges the constitutionality of a Maine law and the way an entity has enforced it, the school district asked Wednesday that the case be moved to U.S. District Court in Maine. 

Neither the school district nor the state has responded in court to the Foxes’ claims.

The Maine Department of Education declined to comment on the lawsuit.

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Sawyer Loftus

Sawyer Loftus is a reporter covering Old Town, Orono and the surrounding areas. A recent graduate of the University of Vermont, Sawyer grew up in Vermont where he's worked for Vermont Public Radio, The...