West Virginia Vaccine Mandate Upheld by U.S. Fourth Circuit

On Apr. 8, 2026, a federal appeals court found that West Virginia’s compulsory school vaccination law does not violate the First Amendment, despite the state not offering a religious exemption. In a 2-1 decision, the U.S. Court of Appeals for the Fourth Circuit reversed a preliminary injunction that had temporarily allowed a virtual school student to remain enrolled while unvaccinated.¹

Family Denied Right to Educate an Unvaccinated Child

In 2023, Krystle and Anthony Perry enrolled their daughter, K.P. in the West Virginia Virtual Academy, a public virtual charter school. After sixteen months of enrollment, a school official contacted Krystle Perry questioning her about her daughter’s vaccination status. The Perrys’ said their religious objection to vaccination was deeply rooted in their Christian faith. When Krystle Perry requested a religious vaccine exemption, school officials told her West Virginia law does not recognize one. The school immediately disenrolled K.P.²

The Perrys filed suit against the West Virginia Virtual Academy, Upshur County Schools, and the state Bureau of Public Health. U.S. District Judge Thomas Kleeh granted a preliminary injunction in October 2024, finding the vaccination law was not generally applicable and could not survive strict scrutiny. K.P. was allowed to attend school. The Fourth Circuit reversed that ruling.³

School Vaccine Mandate

West Virginia Code Section 16-3-4 requires students attending public schools, private schools, parochial schools, and state-regulated child-care centers to be vaccinated against 10 diseases: chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus, and whooping cough (pertussis). In order to obtain a medical exemption, a licensed physician must certify in writing that a specific physical condition makes vaccination medically contraindicated and most physicians and public health officials only recognize narrow vaccine contraindications specified by medical trade groups like the American Academy of Pediatrics (AAP) and U.S. Centers for Disease Control (CDC) officials.⁴
West Virginia is one of a handful of state legislatures in the country – along with  California, New York, Maine, Connecticut – which fail to allow a vaccine exemption for religious, philosophical or conscientiously held beliefs so children can attend school.⁵

Mandate Survives rational Basis Test

Judge J. Harvie Wilkinson III wrote the majority opinion, joined by Judge G. Steven Agee. The court applied the legal standard established in Employment Division v. Smith, under which a neutral and generally applicable law is subject only to rational basis review, even if it incidentally burdens religious practice. The majority held that West Virginia’s vaccine law qualifies as neutral and generally applicable. It further held that the existence of a medical exemption does not convert the law into a system of individualized exemptions that would invite stricter judicial review. The law was upheld under the rational basis test.

Judge Wilkinson wrote:

Rights, as important as they are, do not swing free and clear of the larger social compact. We live in a society that accords its citizens enormous benefits. In return, states can, in a measured way, require certain exactions and accommodations to the broader social interest. West Virginia’s compulsory vaccination law does exactly that. It is a legitimate exercise of the state’s power to protect the health and well-being of school children. Striking the law down would undermine not just our system of dual sovereignty, but also a long line of Supreme Court precedent.⁶

Dissent Finds the Law Is Not Generally Applicable

Judge Paul Niemeyer dissented. He argued that the law is not generally applicable because it applies to students enrolled in public virtual schools but exempts other children educated at home.

Judge Niemeyer wrote:

The mandatory vaccination law is not generally applicable as it does not apply to children who receive home instruction, to children who are educated in learning pods and to children who attend microschools. These exceptions are presumably made because the children’s learning environment in those circumstances is remote and their exposure to other children is minimal.⁷

In this case, K.P. was educated entirely at home through a virtual public school program. Judge Niemeyer argued her circumstances were functionally indistinguishable from those of a homeschooled child who faces no vaccine requirement under state law. Under that analysis the law would be subject to strict scrutiny and the state would be unable to justify singling out families with religious objections who use a public virtual program rather than a private home instruction arrangement.⁸

A Separate Battle in State Court

The Fourth Circuit’s ruling was issued amid an unresolved legal conflict over vaccine mandates in West Virginia courts. In November 2025, a district court issued a permanent injunction against a vaccine mandate that refused to allow for religious exemptions for school-aged children. Raleigh County Circuit Court Judge Michael Froble found that it was a violation of the Equal Protection for Religion Act (EPRA) to deny parents the right to apply for a religious exemption to vaccination. The court ruling would allow children who cannot receive vaccines for religious reasons to be able to attend public school and participate in extracurricular sports.^{9 10}

In January 2025, Governor Patrick Morrisey, relying on the state’s 2023 Equal Protection for Religion Act signed Executive Order 7-25. The Executive Order directed the state health officer to allow religious and conscientious exemptions from school vaccine requirements.¹¹

In June 2025, the West Virginia State Board of Education defied the Executive Order and voted to require the Department of Education to issue guidance instructing county school systems to continue following the compulsory vaccine law and to not accept religious exemptions. Students with religious exemptions were denied entry into school.¹²

That decision prompted Raleigh County parent Miranda Guzman and other families to file suit against state and local education officials. Fourteenth Judicial Circuit Judge Michael Froble granted the parents permanent injunctive and declaratory relief, finding that the Equal Protection for Religion Act authorized the governor’s executive order. Judge Froble certified the case as a statewide class action.¹³

The West Virginia Supreme Court of Appeals agreed to take up the case. Attorneys for the state and local school boards filed their brief in March 2026. Attorneys for the Guzman defendants have until May 11 to respond.¹⁴

The Fourth Circuit’s decision reverses the preliminary injunction and remands the case to the Northern District of West Virginia for further proceedings on the merits.¹⁵

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