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DEAR DAWG:

We have reason to believe that our opponent in the bi-district playoff game last fall was tampering with the footballs. Our investigation shows that the balls, which were under the control of the other team, were under inflated, thus giving their QB a distinct advantage. We are contemplating litigation over this in light of the fact that we lost. This was particularly harmful to our seniors who will never again wear the Blue and the White in glorious victory. Do you think we should go for state court or federal? What causes of action do you recommend? What constitutional claims are implicated? NOT LOOKING TO SETTLE A GRUDGE—JUST WANT SOME JUSTICE!

 

DEAR NOT LOOKING:

You will run into some procedural hurdles in bringing this case in state court, as school districts are immune from tort liability unless a motor vehicle is involved. But perhaps you could sue some of the employees. They also—most of them anyway—enjoy a good deal of legal protection from liability claims, but we think that tampering with government property is beyond the scope of employment, and so you might be able to work around that.

As far as federal claims, of course you could allege a violation of Due Process, since you were not given notice and a hearing prior to the deflation of the footballs. You could claim a denial of Equal Protection, since the ball was not the same as the ones you had used all season.  Perhaps you could tie in some angle of discrimination.

But we did a little research on your situation and we uncovered what we think will be the main problem with your lawsuit. Your team got run out of town 57-3. We think it will be hard to persuade a judge that an underinflated pigskin had much to do with that. So we hope your basketball teams are doing well, because it looks to the Dawg like your football season came to an unglorious finish. But good luck with your lawsuit. We are sure there is a lawyer out there who will take the case.

DAWG

 

DEAR DAWG:

I believe that I have a fundamental, constitutional, God given right to direct the upbringing of my children. This includes the right to decide whether they are vaccinated or not. I understand that Texas law currently allows me to opt out of the Big Government mandate of vaccination, but in order to do so I have to file an affidavit and cite “reasons of conscience.” I view this requirement as unconstitutional, as the government has no right to require me to file an affidavit of any kind. Beyond that, I am concerned over hearing that there is a move afoot to change this law to require that all kids be vaccinated, unless there is a medical problem or the parents can cite some “tenet” or some organized religious group. I have my religious beliefs, Dawg, but they are not “tenets” and there is nothing about them that is organized.  Moreover, I think that I should be able to opt out of this intrusive, offensive, unconstitutional and un-Godly Big Government mandate just by saying so.  WHAT DO YOU THINK?

 

DEAR WHAT DO YOU THINK?

Mr. Itz of Fredericksburg already made a lot of those arguments. But he lost the argument and the case. The Texas Supreme Court upheld the constitutionality of compulsory vaccination laws in 1972. At that time, the Texas statute (T.E.C. 2.09) authorized two exceptions. Children had to be vaccinated before attending public school unless their parents provided 1) an affidavit from a doctor citing medical concerns; or 2) an affidavit signed by the parent, stating that the requirement “conflicts with the tenets and practice of a recognized church or religious denomination of which the applicant is an adherent or member.”

There was no “conscientious objector” exemption, as there is now. If Mr. Itz could have cited “reasons of conscience” he would have won his case.  Mr. Itz stated that his daughter had contracted hepatitis as a result of a diphtheria shot. He believed that vaccination is harmful to the health. But he provided neither a medical affidavit, nor a religious one.

In its short opinion, the Texas Supreme Court noted that objections to vaccination had a long and distinguished pedigree in this country. Ben Franklin opposed compulsory inoculations in 1721. George Clinton, colonial governor of New York, forbade inoculations against smallpox in New York City in 1747. Mr. Itz cited these historical precedents in support of his argument that inoculation is “an assault upon one’s body by invidious impregnation with bacteria that is cruel and unusual punishment.” He claimed that mandatory vaccination “interferes with parental control and decisions relating to the health of their children” and “interferes with their children’s constitutional right to a public free education.” In fact, Itz asserted, “Vaccination by compulsion is one of the greatest crimes today, and it is being committed by the Legislature of the State of Texas disguised as Education Code 2.09.”

The Court did not buy it. It asserted that “a much more enlightened view” had emerged. That view—that immunization is necessary to stop the spread of infectious disease—had, even by 1972, been adopted by “a great majority of the states.” The Court noted that “these statutes were the subject of frequent attack in the early years of the century and were universally upheld as proper exercises of the police power for the protection of the health and safety of the citizenry.”

Therefore, the Court concluded, the statute was constitutional. The case of Itz v. Penick was decided by the Texas Supreme Court on January 17, 1973.  It can be found at 493. S.W.2d 506.

So good luck! DAWG

 

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