IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

G.B., a minor, by and through )

his parents and next friends, )
ZACH and AUDREY BAKER, et al., )
)
Plaintiffs, )
)
v. ) Case No. 20-00003-CV-W-HFS
)
CROSSROADS ACADEMY- )
CENTRAL STREET, et al., )
)
Defendants. )

ORDER

This ruling deals with the second round of the “Form 11 controversy”

between parents of several school children and State and school authorities. The

parents assert religious objections to required vaccinations but decline to sign and

submit the State agency form used for excusing children from a vaccination

requirement. Missouri state law allows religious objectors to be excused, but

plaintiffs contend that the Missouri Department of Health & Senior Services

(DHSS), through hostility to religion, requires them to sign an exemption claim

form which, in the upper section, also contains a message from DHSS advocating

Case 4:20-cv-00003-HFS Document 21 Filed 03/02/20 Page 1 of 6

vaccination as a protection of school children and others who might otherwise be

exposed to a health hazard.

In earlier litigation last year, (the “W.B.” case), the federal constitutional

objection was rejected, and that ruling is on appeal. Plaintiffs have now advanced

some nine state law questions relative to the adoption of Form 11. I have

previously noted that aspect of the case, but advised it would not be ruled under

supplemental jurisdiction authority. W.B. , et al v. Crossroads Academy-Central

Street, et al, No. 19-00682-HFS, Doc. 69, p. 2. This new lawsuit was filed in

Missouri Circuit Court and removed here. It included both federal and state

claims, largely similar to those previously advanced. Plaintiffs sought remand. In a

memorandum to counsel I suggested that “a quick remand might occur if the

federal claims in the removed case were dismissed by counsel without prejudice

…” Doc. 9. Instead, it is defense counsel who filed such a motion to dismiss, but

plaintiffs’ counsel resists dismissal of the federal claims, thus delaying processing

of any state law claims.

The current motion to dismiss (Doc. 14) is filed on behalf of the Crossroads

Defendants; that is, the school itself and two individuals, Ms. Parker and Ms.

Copeland. Plaintiffs respond (Doc. 16) that they “conditionally acquiesce to the

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dismissal of the claims against Parker and Copeland based upon the prior ruling of

the Court” but reserve the right to appeal (as in the earlier case).

The current opposition to dismissal of the federal claims against Crossroads

Academy-Central Street largely reiterates the claims previously rejected in the

W.B. litigation, Docs. 52, 53, 62, 69, and 76. It would not be useful to repeat or

enlarge on prior rulings (although I recognize that on remand a Missouri Circuit

Judge would be free to take a second look, since the Missouri appellate courts

rather than the Eighth Circuit might ultimately be reviewing this litigation). The

plaintiffs’ opposition brief (Doc. 16) does not challenge the Missouri exemption

statute as such, but only Form 11, which was promulgated by the agency, DHSS,

and is allegedly being used by Crossroads Academy.1 Plaintiffs’ contention is that

earlier rulings have failed to take into account the allegations that Form 11 “and

procedures” were “all motivated by religious hostility against the religious

objections to vaccinations.” Doc. 16. p. 1, or at least represent “ ‘subtle

departures from neutrality.’ “ p. 8.

But the claim has been considered and rejected. As stated in a footnote in

Doc. 52 in the W.B. case (p. 6), “One of the problems of plaintiffs’ briefing is that

1
Allegations about how other school districts have been dealing with other objecting parents do not pertain to this
defendant, and are not attributed to DHSS, unless I have missed an allegation in the voluminous filings.

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they treat this case as pitting one set of religious beliefs against another, thus

invoking issues of neutrality. (But) the State’s imposition of vaccination

requirements must be considered secular in nature - - otherwise the whole

program would be unconstitutional.” In another ruling it was noted that the

advocacy portion of Form 11 “deals with public health issues. It is entirely secular

in nature and motive, not ‘hostile to religion.’” Doc. 69, p. 4. (emphasis added).

For instance, it would not be hostile to a religious objection to eating pork for an

agency to certify that pork is safe to eat. The certification, like the DHSS language

here, is religiously neutral.”

If plaintiffs have any information to the contrary, they offer no meaningful

allegations to give flesh to their claims of a hostile motivation. Ashcroft v. Iqbal,

now requires that pleadings in federal court go beyond “(t)hreadbare recitals of

the elements of a cause of action,” at least when making charges of lawless

governmental motivation in carrying out normal activities. 556 U.S. 662, 678

(2009). Instead, a claim for relief must be “ ‘ plausible on its face.’ “ Id.

“Determining whether a complaint states a plausible claim for relief will … be a

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

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 In a context somewhat like that at bar, the Supreme Court rejected on its

face a claim that Sunday closing laws were currently tainted with religious

motivation. McGowan v. Maryland, 366 U.S. 316, 444 (1961). The Court

recognized that “as presently written and administered … (the objective of such

laws is) improvement of the health, safety, recreation and general well-being of

our citizens.” Id.

The promotion of religious observance, which would violate the

Establishment Clause, was judicially rejected (with one dissent) as a current

motivation.

As a matter of “judicial experience and common sense” the claim of

religious hostility here as an agency motivator is much less plausible than the

claims advanced in McGowan. While one might imagine that discovery of agency

records (e-mails, for example) could unearth some hostility toward the scientific

views of vaccination protestors or what might be deemed the extremes of

libertarian theories advanced, there is no plausibility in a bare conclusory claim

that religious bias was a motivator of the promulgation and use of Form 11.2

2
Neither agency officials nor the undersigned may know what the pertinent religious tenets of plaintiffs may be.
They have no obligation to articulate or defend any such views, but an asserted hostility by DHSS toward unknown
views seemingly defies experience and common sense.

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 I again reject the federal claims asserted against the Crossroads

Defendants, which are derivative of rejected claims against the Department of

Health & Senior Services. The motion to dismiss (Doc. 14) is therefore GRANTED

as to the federal claims, but not as to any state claims adequately asserted.3

/s/ Howard F. Sachs

HOWARD F. SACHS
UNITED STATES DISTRICT JUDGE
Dated: March 2, 2020
Kansas City, Missouri

3
Remand apparently remains premature because the unrelated defendant Dr. Rex Archer has made an
appearance, which keeps the case here as active litigation.

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