- The Guilford County Board of Education is asking the North Carolina Supreme Court not to accept a case stemming from the forced COVID-19 vaccination of a 14-year-old boy in 2021.
- A court filing Friday supports the state Court of Appeals' unanimous March decision against the teen and his mother. Both sued the Guilford school board and the Old North State Medical Society.
- Appellate judges agreed that a 2005 federal law offered immunity to the school board and medical society. "[T]he idea of federal law overriding contrary state constitutional provisions appears in the U.S. Constitution itself," Guilford school lawyers wrote.
The Guilford County Board of Education is asking North Carolina’s highest court not to take up a case involving the forced COVID-19 vaccination of a 14-year-old boy in 2021. The teen and his mother hope the state Supreme Court will revive their suit against the Guilford schools and Old North State Medical Society.
In a court filing Friday, the school board asks the court to reject claims from Emily Happel and Tanner Smith “on the grounds that the alleged constitutional questions are not real and substantial and that the subject matter of this case does not involve legal principles of major significance to the jurisprudence of this State or raise issues of significant public interest.”
A unanimous state Court of Appeals panel ruled against Happel and Smith in March. Appellate judges agreed a federal law called the Public Readiness and Emergency Preparedness Act of 2005 provided legal immunity to the school board and medical society.
“[T]he direct issue before the Court of Appeals is not a substantial constitutional question — rather, it is a straightforward application of federal statutory immunity, which applies to the same degree to state law claims and state constitutional claims, and which is not at all an issue of first impression,” the Guilford schools’ lawyers wrote. “In fact, the idea of federal law overriding contrary state constitutional provisions appears in the U.S. Constitution itself, which expressly states that federal law supersedes both contrary state laws and state constitutions.”
“Even the specific idea of the PREP Act immunizing against constitutional claims is not a new one,” the court filing added. Guilford’s brief cited a 2024 decision from the 9th US Circuit Court of Appeals “holding that, through the PREP Act, Congress expressly foreclosed federal constitutional claims related to covered countermeasures.”
“While it is no doubt true that there was and remains significant public interest in the COVID-19 pandemic as a general matter, the legal principle at issue here is not about COVID-19. The legal principle at issue is whether the PREP Act (which long predated COVID-19) provides immunity against state law claims,” the school board argued. “Whatever anyone may think or feel about the policies embedded within the PREP Act, Congress has acted to broadly immunize certain individuals and organizations with respect to public health issues during a state of emergency, and it cannot be said that every Congressional action that might impact state law claims is of such public interest that our state Supreme Court should step in.”
“Similarly, while it is no doubt true that there is public interest in vaccinations generally and in parental consent for vaccination of minors generally, there is no need for Court intervention here,” the court filing continued.
The Guilford school board referenced state legislative action in 2021.
“The General Assembly has already passed legislation to address the very concern raised here, acting to create a parental consent requirement for vaccinations administered under an Emergency Use Authorization (interestingly, this new legislative requirement went into effect at 2:05pm on 20 August 2021, just an hour or two before Plaintiff received the vaccine in this case). Given that the General Assembly has acted to address this issue, and given that the public interest at issue is not implicated by the mundane proposition that a federal law may expressly override contrary state law, this is again not a sufficient basis for this Court to take on this issue,” the schools’ lawyers wrote.
Happel and Smith filed a petition on April 5 asking the state’s highest court to take their case.
“The pandemic that occurred from 2020-2022 caused a seismic shift in the social, medical, political, and legal landscape of not only the State of North Carolina, not only the United States, but the world as a whole,” wrote lawyer David “Steven” Walker. “How the government chose to deal with the pandemic, especially concerning the administration of vaccines that had been granted emergency use authorizations, was and is a hotly contested issue, one that is certainly of significant public interest.”
“This public interest is even more significant when the issue revolves around the vaccination of a minor and the allegation that neither the minor nor the minor’s parent consented to the administration of the vaccine,” Walker added.
The case deals with “the interplay between duty of the courts of North Carolina to remedy constitutional and other legal violations and a federal law that defendants purport forecloses that opportunity,” Walker wrote.
“The trial court and the Court of Appeals interpreted the PREP Act so broadly as to shield nearly every act, no matter how egregious, from any legal consequence,” according to the petition. “Further, the Court of Appeals and the trial court’s decision rendered totally useless N.C. Gen. Stat. § 90-21.5(a1) which prohibited the very acts committed by defendants. It is now a law of aspiration, with no consequence for its blatant violation.”
The quoted state law — NCGS § 90-21.5(a1) — says, “Notwithstanding any other provision of law to the contrary, a health care provider shall obtain written consent from a parent or legal guardian prior to administering any vaccine that has been granted emergency use authorization and is not yet fully approved by the United States Food and Drug Administration to an individual under 18 years of age.”
The Appeals Court issued a unanimous March 5 decision against the mother and son despite labeling the forced vaccination “egregious.”
“Plaintiffs argue the trial court erred in determining that the PREP Act … is applicable to this case and provides immunity to both Defendants,” Judge April Wood wrote. “Due to the sweeping breadth of the federal liability immunity provision in the PREP Act, we are constrained to disagree.”
“Bound by the broad scope of immunity provided by the PREP Act, we are constrained to hold it shields Defendants, under the facts of this case, from Plaintiffs’ claims relating to the administration of the COVID-19 vaccine,” Wood added.
In August 2021, Smith was a 14-year-old Western Guilford High School football player. His family learned in a letter from the Guilford schools that Smith might have been affected by a COVID-19 “cluster” involving the team. He would not be allowed to return to practice until getting a COVID test.
Free testing would be provided at Northwest Guilford High School. “The letter indicated ONS Medical Society would conduct the testing and ‘consent for testing is required,’” Wood wrote.
Smith’s stepfather drove him to the testing site and waited outside the building. The teenager was asked to fill out a form while a clinic worker tried unsuccessfully to contact his mother. Smith and his family didn’t know the clinic also provided COVID-19 vaccine shots.
“After failing to make contact with Tanner’s mother, one of the workers instructed the other worker to ‘give it to him anyway.’ Tanner stated he did not want a vaccine and was only expecting a test, but one of the workers administered a Pfizer COVID-19 vaccine to him,” Wood wrote.
Happel and Smith filed suit in August 2022. A trial judge dismissed the case in March 2023.
Appellate judges ruled that both the school board and medical society were covered by the federal PREP Act. A declaration from the secretary of the US Department of Health and Human Services in March 2020 offered protection related to the COVID-19 vaccine.
“[W]e hold ONS Medical Society is a covered person as a program planner that administered a vaccine clinic, and individually administered vaccines to individuals. … The declaration clearly provides that a program planner may be a private sector employer or community group when it carries out the ‘described activities’ including administration of a covered countermeasure,” Wood wrote.
The same law also applied to the Guilford school board. “We are convinced by the Secretary’s interpretation in the declaration that a covered person under the PREP Act includes a ‘state or local government . . . [that] provides a facility to administer or use a Covered Countermeasure.’ We hold this language includes the Board, which provided a facility — Northwest Guilford High School — for the administration of the COVID-19 vaccines,” Wood wrote.
“Wisely or not, the plain language of the PREP Act includes claims of battery and violations of state constitutional rights within the scope of its immunity, and it therefore shields Defendants from liability for Plaintiffs’ claims,” Wood added.
The Appeals Court noted that North Carolina’s General Assembly amended state law in 2021 to require “parental consent before a vaccine granted emergency use authorization may be administered to a minor.”
“Its intent is to prevent the egregious conduct alleged in the case before us, and to safeguard the constitutional rights at issue — Emily’s parental right to the care and control of her child, and Tanner’s right to individual liberty,” Wood wrote. “Notwithstanding, the statute remains explicitly subject to ‘any other provision of law to the contrary’ under the broad provision preempting state law in the PREP Act.”
“The PREP Act provides only one exception for a ‘Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct.’ Because Plaintiffs have not made any such allegations in their complaint, we are constrained to conclude the PREP Act preempts the protections provided” by state law, Wood wrote.
Judges Allegra Collins and Jeff Carpenter joined Wood’s decision.