He also said vaccination requirements for meningitis, as well as Hepatitis B and varicella, are valid under a state Board of Education rule. The school board, whose rules do not require legislative approval, requires students to be in compliance with the immunization schedule set by the Bureau of Public Health commissioner.
Kaufman noted that these vaccinations are recommended by the Advisory Committee on Immunization Practices, a 15-member group of experts selected by the U.S. Department of Health and Human Services secretary.
"The rule is entitled to substantial deference as it represents the best judgment of a national group with undoubted expertise and experience whose judgments are vetted before the public," Kaufman wrote.
Similar lawsuits are pending in Mercer, Ohio and Randolph counties. Judges in these cases have ordered county school boards to provide homebound instruction to students barred from attending school because they did not receive vaccinations.
"In every one of those cases, the circuit judges recognized that the child does have a fundamental right to an education and that education must be provided irrespective of the vaccinations," Lane said.
"Clearly, the counties are going to have to pay for homebound instruction."
If Lane's clients appeal the Kanawha County ruling, he said the Legislature probably will stay on the sidelines until the West Virginia Supreme Court issues a decision.