After chickenpox outbreak at Asheville Waldorf, county quarantine order challenged in court

Sam DeGrave | The Citizen-Times

Show Caption Hide Caption Video: What is chickenpox? Learn about chickenpox, a once-commonplace ailment caused by the same virus that causes shingles. Steve Byerly

ASHEVILLE — First came the rash, then the quarantine — and with it, a legal challenge.

The late October outbreak of chickenpox at Asheville Waldorf School prompted Buncombe County health officials in early November to call for the quarantine of 104 of school's 152 students. Nearly 75 percent hadn't been vaccinated for the virus.

That order expired Tuesday, though it is unlikely to mark the end of county concerns at the private West Asheville school that serves toddlers through sixth graders. Buncombe health officials will continue to monitor conditions when students return from Thanksgiving break next week.

In a Nov. 1 order sent to the parents of unvaccinated children, Buncombe County Health Director Jannine Shepard wrote that "the intent of this quarantine is to decrease the risk of transmission of the illness and protect the health of non-immune students, staff and community members."

Asheville attorney Lakota Denton said Tuesday the quarantine violated the civil liberties of the children — two of whom he represents.

"The quarantine placed around 100 children, including my clients, under house-arrest for 21 days," Denton said. "I felt that there should be a more significant threat to public health to justify this kind of curtailing of civil liberties, so I contested the quarantine in Superior Court on behalf of these children."

More: A leader in vaccine exemption, Asheville Waldorf has NC's worst chickenpox outbreak since '95

More: Rate of Buncombe kindergartners exempt from vaccination rises again, official says

On Thursday — five days before the three-week quarantine was set to expire — a judge struck a portion of the county order, which originally told parents "your child must be excluded (kept home) from school and activities outside the home."

Superior Court Judge Richard S. Gottlieb ruled the county had the authority to keep children out of school, but it couldn't prevent them from leaving their homes.

Harm to 'civil liberties and religious freedom'

The quarantine order the county provided to Asheville Waldorf School parents gave them a choice. They could have their children vaccinated, prove they're immune to the virus or keep them away from others.

Given the choice, parents — even those who oppose vaccines — typically choose to immunize, Buncombe Health and Human Services Medical Director Jennifer Mullendore said Friday. Parents can't usually afford to keep their children out of school for so long, she said.

That wasn't the case with this outbreak. The majority of parents presented with the county's order chose quarantine, Mullendore said.

The county didn't offer much Tuesday when asked about the legal challenge to its quarantine order. Mullendore wrote in an email that the county "is committed to protecting the public's health."

"The court agreed that the local health director can use her quarantine authority to control an outbreak of chickenpox," she added.

Denton, however, said he is content that a judge has reined that power in, at least slightly.

In his petition challenging the quarantine, Denton wrote that "the civil liberties and religious freedom of all healthy children and their families ... have been harmed by an overly-broad quarantine order that requires them to stay inside their homes for 21 days over the threat of chickenpox, which is not classified as 'dangerous' in any state or federal law."

He argued that the federal Centers For Disease Control and Prevention recommends only barring children from school, not from leaving their homes.

Controlling a chickenpox outbreak

In its response, the county said the quarantine was the "least restrictive means" to control the outbreak, which the North Carolina Department of Health and Human says is the worst the state has seen since the chickenpox vaccine became available in 1995.

The county argued that chickenpox, though typically unremarkable, can put those who are immunocompromised, pregnant or have HIV and AIDS "at a high risk for serious complications."

North Carolina tracks the rate of kindergartners whose parents have claimed a religious exemption, allowing them to forgo vaccination.

During the 2017-2018 school year, the last for which data were available, Asheville Waldorf had a higher rate of religious exemptions for vaccination than all but two other schools in the state.

Of the 28 kindergartners who enrolled that year, 19 had an exemption to at least one vaccination required by the state for school entry.

During the same academic year, Buncombe County led the state in religious exemption rates for kindergartners with 5.7 percent.

The county health department on Tuesday confirmed that none of the Asheville Waldorf School students who contracted chickenpox had been vaccinated for the virus.

No one with the school could be reached Tuesday.

Stephanie Rynas — one of the executive directors of the Association of Waldorf School of North America, the accrediting agency for Waldorf schools — declined to comment on the chickenpox outbreak Tuesday.

The association does not take sides in the vaccine debate.

"The health safety and well being of our children are at the forefront of our concern," she said in a phone interview. "That is absolutely a parent's decision in consultation with their physician.”