Judge rejects brothers' appeal of UA mumps edict

University of Arkansas students are shown on the lawn in front of Old Main on the campus in Fayetteville in this file photo.
University of Arkansas students are shown on the lawn in front of Old Main on the campus in Fayetteville in this file photo.

FAYETTEVILLE -- A judge Tuesday denied a request from two brothers attending the University of Arkansas, Fayetteville who had asked for the court to block a health directive keeping them out of class during a campus mumps outbreak.

A Nov. 22 letter from the state Department of Health outlines a public health directive that any student without at least two doses of measles, mumps and rubella vaccine either be vaccinated immediately or excluded from class and class activities for at least 26 days.

In a court filing dated Friday, students Shiloh Isaiah Bemis and Benjamin Andrew Bemis claimed "that the University of Arkansas failed to recognize and uphold our philosophical beliefs as enrolled students -- beliefs which include the choice to abstain from vaccinations."

A one-sentence order Tuesday by Washington County Circuit Judge Doug Martin denied their request for a temporary injunction. Martin's order included no explanation for his decision.

[DOCUMENT: Read 2 UA students' filing challenging health directive » arkansasonline.com/1211ua]

Shiloh Bemis, in a phone interview, called the judge's order "disappointing."

"I don't think it's the end of the issue on our part," Bemis said.

Mark Rushing, a UA spokesman, in a statement said "the university is acting as directed by the Arkansas Department of Health."

Faculty members have been asked to work with students who may be excluded from classes, Rushing said Thursday after the state Health Department released new totals for mumps cases.

Health officials said last week that there have been 26 mumps cases tied to the UA campus since September.

As of Thursday, 168 students lacked the required two MMR vaccinations under the health directive, UA spokesman Zac Brown said last week. The university has had an ongoing push to get more students vaccinated since the directive was announced.

In the court filing, the students claimed that "our opportunities to participate and succeed as students at the closing of this semester have been jeopardized." The school's semester ends with finals that start Monday.

Shiloh Bemis, 21, said he is a third-year architecture major at UA.

"The court order was moved forward in the effort to get us back into class. That was all," Bemis said.

Bemis, from Fayetteville, said the health directive came at a time when a visiting panel of architects was getting ready to review a semester's worth of work last Friday.

"I was really under the gun to try and get my work reviewed," Bemis said.

He said his brother is an 18-year-old freshman at UA. Benjamin Bemis did not respond to an email asking for comment.

"On a larger level, we are taking issue with the fact that we don't think we've quite been given a choice that fully takes into account what we believe our rights to be," Shiloh Bemis said.

The pair filed the court motion as an "ex parte emergency," without an attorney on record, claiming that the UA is "acting in a manner that has violated our civil rights."

Under state law, schools require vaccinations for students, but the law also allows for exemptions for medical, religious or philosophical reasons.

Last week, a state Health Department official said in a statement to the Democrat-Gazette that the public health directive applied even to those with such an exemption.

"Even if they have an exemption, they still are supposed to be excluded from class and activities, since they are much more susceptible to getting the infection. For any student, whether simply undervaccinated or with an exemption, if they change their mind and get the vaccine, they can then return to class/activities," Dr. Joel Tumlison, a physician specialist in the state Health Department's outbreak response section, said last week.

James G. Hodge Jr., Western region director for the Network for Public Health Law, in a phone interview Tuesday said outbreaks of mumps or measles have affected students at various colleges and universities around the country.

Looking at the language in the Arkansas public health directive, Hodge said it's "pretty consistent with the standard approach that these higher-education institutions are taking."

The Bemis brothers argued in the court filing that they had been tested, with results showing no indication of mumps.

But Hodge said that argument carries little weight.

"Just because you don't currently have mumps or measles doesn't mean you couldn't have it 24 hours later," said Hodge, co-author of an academic article citing "lax requirements for student vaccinations" as a "primary cause" for outbreaks of diseases like mumps or measles on college campuses.

A state Health Department spokeswoman last week told the Democrat-Gazette that of the 26 confirmed mumps cases, 25 involved individuals known to have been fully vaccinated. The other case involved a person for whom records had not been located.

According to the Centers for Disease Control and Prevention, the mumps component of MMR vaccine is about 88% effective when a person gets two doses.

The court filing by the Bemis brothers argued that "the threat that vaccinated individuals pose to others is statically far greater than the chance we have of even carrying the virus," and that they have been "unfairly and unequally excluded from class activities."

Hodge said he knew of other legal challenges by students or their families claiming that they have been unfairly singled out by similar public health directives.

"Generally, parents and students lose, and there's good reason for it," Hodge said, describing a directive like that in place currently for UA students as a "temporary policy designed to protect the public's health."

"What is done here is not a punitive measure. It is a public health measure," Hodge said.

Metro on 12/11/2019

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