                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-2352


JENNIFER WORKMAN, individually and as guardian of M.W., a
minor; M.W., a minor,

                Plaintiffs - Appellants,

          v.

MINGO COUNTY BOARD OF EDUCATION; DR. STEVEN L. PAINE, State
Superintendent of Schools; DWIGHT DIALS, Superintendent
Mingo County Schools; WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES,

                Defendants – Appellees,

          and

MINGO COUNTY SCHOOLS; STATE OF WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,

                Defendants,

          v.

MARTHA YEAGER WALKER, in her capacity as Secretary of the
West Virginia Department of Health and Human Resources; DR.
CATHERINE C. SLEMP, in her capacity as State Health Director
for the West Virginia Department of Health and Human
Resources,

                Third Party Defendants – Appellees.

-------------------------------------

CHILDREN’S HEALTHCARE IS A LEGAL DUTY, INCORPORATED;
AMERICAN ACADEMY OF PEDIATRICS, INCORPORATED, West Virginia
Chapter; CENTER FOR RURAL HEALTH DEVELOPMENT, INCORPORATED;
WEST VIRGINIA ASSOCIATION OF LOCAL HEALTH        DEPARTMENTS;
IMMUNIZATION ACTION COALITION, INCORPORATED,

                Amici Supporting Appellees.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:09-cv-00325)


Argued:   December 9, 2010                Decided:   March 22, 2011


Before AGEE and WYNN, Circuit Judges, and Patrick Michael DUFFY,
Senior United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Agee and Senior Judge Duffy concurred.


ARGUED: Patricia Ann Finn, PATRICIA FINN, ATTORNEY, PC,
Piermont, New York, for Appellants.       Charlene Ann Vaughan,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston,
West Virginia; Joanna Irene Tabit, STEPTOE & JOHNSON, LLP,
Charleston, West Virginia, for Appellees. ON BRIEF: Michelle E.
Piziak, J. A. Curia III, STEPTOE & JOHNSON, LLP, Charleston,
West Virginia, for Appellees Mingo County Board of Education and
Dr. Steven L. Paine; Silas B. Taylor, Managing Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Charleston, West
Virginia, for Appellee Dwight Dials.         Braun A. Hamstead,
HAMSTEAD & ASSOCIATES, LC, Martinsburg, West Virginia; James G.
Dwyer, Professor of Law, MARSHALL WYTHE SCHOOL OF LAW, College
of William & Mary, Williamsburg, Virginia, for Amici Supporting
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                 2
WYNN, Circuit Judge:

       Plaintiff       Jennifer    Workman     filed      this      42   U.S.C.     §   1983

action against various West Virginia state and county officials,

alleging that Defendants violated her constitutional rights in

refusing to       admit     her    daughter    to    public       school   without       the

immunizations required by state law.                  The district court granted

summary judgment to Defendants.               We now affirm.



                                         I.

       Workman is the mother of two school-aged children: M.W. and

S.W.     S.W. suffers from health problems that appeared around the

time    she    began    receiving     vaccinations.            In    light     of   S.W.’s

health problems, Workman chose not to vaccinate M.W.

       Workman’s decision not to allow vaccination of M.W. ran

afoul of West Virginia law, which provides that no child shall

be admitted to any of the schools of the state until the child

has    been    immunized     for    diphtheria,          polio,     rubeola,      rubella,

tetanus, and whooping cough.              W. Va. Code § 16-3-4.                   However,

Workman       sought   to   take    advantage       of    an   exception       under     the

statute, which exempts a person who presents a certificate from

a     reputable    physician       showing     that       immunization       for        these

diseases “is impossible or improper or other sufficient reason

why such immunizations have not been done.”                         Id.    Thus, in an

effort to enroll M.W. in the Mingo County, West Virginia, school

                                          3
system without the required immunizations, Workman obtained a

Permanent Medical Exemption (“the certificate”) from Dr. John

MacCallum, a child psychiatrist.

       Dr. MacCallum recommended against vaccinating M.W. due to

S.W.’s    condition.          Mingo   County       Health     Officer,       Dr.    Manolo

Tampoya approved the certificate and indicated that it satisfied

the    requirements     for    M.W.   to    attend       school   in    Mingo      County.

M.W.    attended    the    pre-kindergarten          program      at    Lenore      Grade

School in Lenore, West Virginia for approximately one month in

September 2007.

       On September 21, 2007, the Superintendant of Mingo County

Schools,    Defendant     Dwight      Dials,      sent    a   letter    to    Dr.    Cathy

Slemp, the acting head of the West Virginia Department of Health

and Human Resources, stating that a school nurse had challenged

Workman’s    certificate.         Dr.      Slemp    responded     by    letter       dated

October    3,   2007,     recommending          Workman’s     request    for       medical

exemption be denied.           On October 12, 2007, Rita Ward, the Mingo

County Pre-K Contact, sent Workman a letter notifying her that

“as of October 12, 2007 [M.W.] will no longer be attending the

Preschool Head Start Program at Lenore Pre-k-8 School in Mingo

County.”

       M.W. did not attend school again until 2008, when she was

admitted into a Head Start Program that accepted Dr. MacCallum’s

certificate.       However, when M.W. aged out of that program, Mingo

                                            4
County Schools would not admit her; accordingly, Workman home-

schooled M.W.

       Workman          brought       suit   individually           and      as    parent      and

guardian         of     her    minor    child,        M.W.      She    filed       an    amended

complaint on May 11, 2009 against the Mingo County Board of

Education; Dr. Steven L. Paine, State Superintendant of Schools;

Dwight Dials, Superintendant of Mingo County Schools; and the

West     Virginia             Department     of       Health     and      Human         Resources

(“Defendants”).

       In    her        complaint,         Workman         raised     constitutional            and

statutory claims, and sought a declaratory judgment, injunctive

relief, and damages.                 Specifically, she alleged that Defendants’

denial of her application for a medical exemption violated her

First Amendment rights.                  She further alleged that Defendants’

denial of her application for a medical exemption constituted a

denial      of    Equal        Protection     and      Due     Process.           In    addition,

Workman     alleged           that    Defendants       violated       West    Virginia         Code

Section      16-3-4            by     refusing        to     accept       Dr.      MacCallum’s

certificate.

       In a memorandum opinion and order of November 3, 2009, the

district         court        determined     that      the     Mingo      County       Board    of

Education and the West Virginia Department of Health and Human

Services         were    entitled       to   Eleventh        Amendment        immunity         from

Workman’s claims.                   The district court further concluded that

                                                  5
Workman’s    constitutional            claims        lacked   merit.        Finally,      the

district court ruled that, after dismissing all federal claims,

it lacked jurisdiction to hear Workman’s remaining state law

claim for injunctive relief and it could discern no statutory

basis for a damage claim.                   The district court therefore granted

Defendants summary judgment.                 Workman appeals.



                                              II.

     We first address Workman’s argument that this case presents

issues of material fact precluding summary judgment.                                Summary

judgment is appropriate only where there are no genuine issues

of material fact and a party is entitled to judgment as a matter

of law.     Fed. R. Civ. P. 56(a).                   Workman argues that this case

presents two material issues of fact: (1) whether Defendants

acted    “properly”       in     overturning          Workman’s    medical     exemption

pursuant    to    state        law;    and     (2)    whether     Workman’s    religious

beliefs are sincere and genuine.

     Workman frames the first issue as “whether or not the Mingo

County    Board     of    Education,          Superintendent       Dials,     and       State

Superintendent Dr. Paine’s rejection of the medical exemption

was legal.”        Brief of Appellant at 14 (emphasis added).                             The

district     court       ruled     that       it     lacked   jurisdiction         to   hear

Workman’s    state       law     claim      for    injunctive     relief     and    saw    no

indication       that    state        law    provided     a   cause    of    action       for

                                               6
damages.      Workman       does     not    explain      how    such   purely      legal

determinations raised any triable issue of fact.                          Accordingly,

we hold that the district court did not err in ruling that this

issue did not preclude summary judgment.                       See United States v.

West Virginia, 339 F.3d 212, 214 (4th Cir. 2003) (“Because this

dispute ultimately turns entirely on a question of statutory

interpretation, the district court properly proceeded to resolve

the case on summary judgment.”).

      Regarding      the    second     issue,      the   district      court    stated:

“Since it is not necessary for me to resolve this issue, I

decline the opportunity to evaluate the nature of Ms. Workman’s

beliefs.”     Indeed, the district court appears to have assumed

the   sincerity      of    Workman’s       religious     beliefs    but    ruled     that

those   “beliefs      do    not    exempt        her   from    complying    with     West

Virginia’s mandatory immunization program.”                     Because a different

resolution of this issue would not change the outcome of the

case,   it,   too,    did    not   preclude        summary     judgment.       See    JKC

Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d

459, 465 (4th Cir. 2001) (“The existence of an alleged factual

dispute between the parties will not defeat a properly supported

motion for summary judgment, unless the disputed fact is one

that might affect the outcome of the litigation.”).

      In sum, the district court did not err in finding that no

genuine issues of material fact precluded summary judgment.

                                             7
                                              III.

       Workman       next       argues        that     West     Virginia’s         mandatory

immunization program violates her right to the free exercise of

her religion.         The First Amendment provides that “Congress shall

make     no   law     respecting         an     establishment         of    religion,      or

prohibiting         the   free     exercise         thereof . . . .”         U.S.    Const.

amend. I.      The First Amendment has been made applicable to the

states by incorporation into the Fourteenth Amendment.                             Cantwell

v. Connecticut, 310 U.S. 296, 303 (1940).

       Preliminarily, we note that the parties disagree about the

applicable     level       of     scrutiny.          Workman   argues      that    the    laws

requiring vaccination substantially burden the free exercise of

her religion and therefore merit strict scrutiny.                                 Defendants

reply that the Supreme Court in Employment Div., Dep’t of Human

Res.    of    Or.    v.    Smith,     494      U.S.    872     (1990),     abandoned      the

compelling interest test, and that the statute should be upheld

under    rational         basis     review.          Workman    counters      that       Smith

preserved an exception for education-related laws that burden

religion.       We observe that there is a circuit split over the

validity of this “hybrid-rights” exception.                       See Combs v. Homer-

Center    School      Dist.,       540   F.3d        231,    244-47   (3rd    Cir.       2008)

(discussing circuit split and concluding exception was dicta).

However, we do not need to decide this issue here because, even

assuming for the sake of argument that strict scrutiny applies,

                                                8
prior decisions from the Supreme Court guide us to conclude that

West Virginia’s vaccination laws withstand such scrutiny.

       Over a century ago, in Jacobson v. Massachusetts, 197 U.S.

11 (1905), the Supreme Court considered the constitutionality of

a statute that authorized a municipal board of health to require

and    enforce   vaccination.       Id.        at   12.     Proceeding     under     the

statute, the board of health of Cambridge, Massachusetts, in

response    to   an    epidemic,    adopted         a   regulation     requiring     its

inhabitants      to    be   vaccinated     against        smallpox.      Id.         Upon

review, the Supreme Court held that the legislation represented

a valid exercise of the state’s police power, concluding “we do

not perceive that this legislation has invaded any right secured

by the Federal Constitution.”             Id. at 38 (emphasis added).

       In   Prince     v.   Massachusetts,          321   U.S.   158    (1944),      the

Supreme Court considered a parent’s challenge to a child labor

regulation on the basis of the Free Exercise Clause.                            Id. at

164.     The Court explained that the state’s “authority is not

nullified merely because the parent grounds his claim to control

the child’s course of conduct on religion or conscience.                          Thus,

he    cannot   claim    freedom    from    compulsory        vaccination       for   the

child more than for himself on religious grounds.”                        Id. at 166

(footnote omitted).          The Court concluded that “[t]he right to

practice religion freely does not include liberty to expose the



                                           9
community or the child to communicable disease or the latter to

ill health or death.”            Id. at 166-67.

      In this appeal, Workman argues that Jacobson dealt only

with the outbreak of an epidemic, and in any event should be

overruled as it “set forth an unconstitutional holding.”                                Brief

of Appellant at 11.              Workman’s attempt to confine Jacobson to

its facts is unavailing.               As noted by one district court, “[t]he

Supreme Court did not limit its holding in Jacobson to diseases

presenting a clear and present danger.”                       Boone v. Boozman, 217

F.   Supp.    2d   938,       954     (E.D.    Ark.     2002)      (footnote       omitted).

Additionally,      we        reject     Workman’s       request       that    we   overrule

Jacobson because we are bound by the precedents of our Supreme

Court.    Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam)

(“[A] precedent of this Court must be followed by the lower

federal   courts        no    matter     how    misguided       the    judges      of   those

courts may think it to be.”)

      Workman also argues that because West Virginia law requires

vaccination against diseases that are not very prevalent, no

compelling     state         interest    can    exist.        On    the      contrary,    the

state’s   wish     to    prevent        the    spread    of     communicable       diseases

clearly constitutes a compelling interest.

      In sum, following the reasoning of Jacobson and Prince, we

conclude that the West Virginia statute requiring vaccinations

as    a      condition          of      admission        to        school       does      not

                                               10
unconstitutionally          infringe     Workman’s         right     to    free      exercise.

This   conclusion         is    buttressed         by    the   opinions         of    numerous

federal and state courts that have reached similar conclusions

in comparable cases.              See, e.g., McCarthy v. Boozman, 212 F.

Supp. 2d 945, 948 (W.D. Ark. 2002) (“The constitutional right to

freely practice one’s religion does not provide an exemption for

parents    seeking        to    avoid    compulsory         immunization          for    their

school-aged children.”); Sherr v. Northport-East Northport Union

Free Sch. Dist., 672 F. Supp. 81, 88 (E.D.N.Y. 1987) (“[I]t has

been settled law for many years that claims of religious freedom

must give way in the face of the compelling interest of society

in fighting the spread of contagious diseases through mandatory

inoculation programs.”); Davis v. State, 294 Md. 370, 379 n.8,

451    A.2d   107,        112    n.8    (Md.       1982)    (“Maryland’s          compulsory

immunization program clearly furthers the important governmental

objective     of    eliminating         and    preventing       certain         communicable

diseases.”); Cude v. State, 237 Ark. 927, 932, 377 S.W.2d 816,

819 (Ark. 1964) (“According to the great weight of authority, it

is within the police power of the State to require that school

children      be    vaccinated          against          smallpox,        and     that     such

requirement        does    not    violate          the    constitutional          rights     of

anyone, on religious grounds or otherwise.”).




                                              11
                                                IV.

       Workman       next     argues          that     West    Virginia’s             immunization

requirement violates her right to equal protection.                                      The Equal

Protection      Clause       of     the   Fourteenth           Amendment             provides     that

“[n]o     State      shall     .    .     .     deny    to     any        person       within      its

jurisdiction        the     equal    protection          of    the        laws.”       U.S.    Const.

amend. XIV, § 1.             “To succeed on an equal protection claim, a

plaintiff      must       first     demonstrate          that        he    has       been     treated

differently from others with whom he is similarly situated and

that    the   unequal       treatment          was    the     result       of    intentional        or

purposeful     discrimination.”                 Morrison        v.    Garraghty,            239    F.3d

648,    654   (4th    Cir.     2001).           Here,       Workman’s       equal       protection

claim     challenges         the    West        Virginia       statute          as-applied          and

facially.

       Regarding her as-applied challenge, Workman argues that the

school    system      discriminated            against        her    when       Defendant         Dials

inquired into the validity of her exemption.                               The district court

found, however, that Workman presented “no evidence of unequal

treatment           resulting           from          intentional               or      purposeful

discrimination to support her claim.”                           Indeed, Dials submitted

an affidavit in which he stated that “we had never dealt with a

request       for     a      medical          exemption        during           my      tenure      as

Superintendant . . . .”              Although Workman asserts that Dials and

Paine used the statute and accompanying regulations improperly,

                                                 12
she points to no evidence of unequal treatment, and we see none.

Consequently, the district court did not err in ruling Workman’s

as-applied challenge was without merit.                           See Hanton v. Gilbert,

36    F.3d    4,    8    (4th       Cir.     1994)     (rejecting        equal       protection

challenge when record revealed no evidence of discrimination).

       Regarding        her    facial      challenge,         Workman      notes      that    the

statute does not provide an exemption for those with sincere

religious beliefs contrary to vaccination.                           She argues that the

statute therefore discriminates on the basis of religion.                                     The

district      court      ruled      that,     although        a    state   may       provide    a

religious exemption to mandatory vaccination, it need not do so.

       The Supreme Court held as much in Zucht v. King, 260 U.S.

174   (1922),      where      it    considered         an   equal    protection        and    due

process      challenge        to    ordinances         in   San    Antonio,      Texas,      that

prohibited a child from attending school without a certificate

of vaccination.              Id. at 175.           The Court stated that Jacobson

“settled     that       it    is    within    the      police      power   of    a    State    to

provide for compulsory vaccination.”                        Id. at 176.         “A long line

of    decisions     by       this   court     .    .   .    also    settled     that    in    the

exercise of the police power reasonable classification may be

freely    applied,       and       that    regulation       is     not   violative      of    the

equal protection clause merely because it is not all-embracing.”

Id. at 176-77.



                                                  13
     Further, in Prince, a mother argued that her religion made

the street her church and that denying her child access to the

street to sell religious magazines violated her right to equal

protection.    321 U.S. at 170.        The Supreme Court explained that

the public highways do not become religious property merely by

the assertion of a religious person.           Id. at 170-71.       “And there

is   no   denial   of    equal   protection     in    excluding     [Jehovah’s

Witnesses’] children from doing [on the streets] what no other

children may do.”       Id. at 171.

     Here, Workman does not explain how the statute at issue is

facially discriminatory; indeed, her complaint is not that it

targets a particular religious belief but that it provides no

exception from general coverage for hers. 1           Following the Supreme

Court’s   decisions     in   Zucht    and   Prince,   we   reject    Workman’s

contention that the statute is facially invalid under the Equal

Protection Clause.




     1
       Several courts have declared unconstitutional religious
exemptions from mandatory vaccination statutes.     See, e.g.,
McCarthy, 212 F. Supp. 2d at 948-49 (invalidating religious
exemption from Arkansas compulsory immunization statute); Brown
v. Stone, 378 So. 2d 218, 223 (Miss. 1979) (invalidating
religious exemption from Mississippi compulsory immunization
statute).


                                       14
                                         V.

      Workman next argues that denying her a religious exemption

from the mandatory vaccination statute violates her substantive

due process right to do what she reasonably believes is best for

her child.      Workman asserts that, because the statute infringes

upon a fundamental right it must withstand strict scrutiny.                  She

contends that the statute fails strict scrutiny because West

Virginia has no compelling interest to justify vaccinating M.W.

      The   Due   Process   Clause       “provides     heightened    protection

against government interference with certain fundamental rights

and liberty interests.”      Washington v. Glucksburg, 521 U.S. 702,

720   (1997).      To   determine    whether      an   asserted     right   is   a

fundamental     right   subject     to   strict    scrutiny   under    the   Due

Process Clause, a court must (1) consider whether the asserted

right is deeply rooted in the Nation’s history and tradition;

and (2) require a careful description of the asserted liberty

interest.       Id. at 720-21.       Where a fundamental right is not

implicated, the state law need only be rationally related to a

legitimate government interest.           Id. at 728.

      As in Boone, “the question presented by the facts of this

case is whether the special protection of the Due Process Clause

includes a parent’s right to refuse to have her child immunized

before attending public or private school where immunization is

a precondition to attending school.”              Boone, 217 F. Supp. 2d at

                                         15
956 (footnote omitted).           We agree with other courts that have

considered this question in holding that Workman has no such

fundamental right.       See Zucht, 260 U.S. at 176-77; Boone, 217 F.

Supp. 2d at 956; Bd. of Educ. of Mountain Lakes v. Maas, 56 N.J.

Super. 245, 264, 152 A. 2d 394, 404 (N.J. Super. Ct. App. Div.

1959).

       Indeed, the Supreme Court has consistently recognized that

a   state   may     constitutionally    require      school    children    to   be

immunized.        See Prince, 321 U.S. at 166-67; Zucht, 260 U.S. at

176; cf. Jacobson, 197 U.S. at 31-32 (noting that “the principle

of vaccination as a means to prevent the spread of [disease] has

been enforced in many States by statutes making the vaccination

of children a condition to their right to enter or remain in

public schools.”).       This is not surprising given “the compelling

interest     of    society   in   fighting     the    spread    of     contagious

diseases through mandatory inoculation programs.”                Sherr, 672 F.

Supp. at 88.         Accordingly, we conclude that Workman has failed

to demonstrate that the statute violates her Due Process rights.



                                       VI.

       Workman also argues that the district court erred in ruling

that     certain     Defendants    were      protected    by     the     Eleventh

Amendment.        The District court ruled that only Defendants Mingo

County Board of Education and the West Virginia Department of

                                       16
Health and Human Resources were entitled to Eleventh Amendment

immunity.       “While we ordinarily would decide an immunity claim

before reaching the merits of the underlying claim, when the

complaint alleges no claim against which immunity would attach,

we need not decide the immunity issue.”                         Jackson v. Long, 102

F.3d    722,    731    (4th     Cir.    1996)      (citation     omitted).        Because

Workman’s constitutional claims against all Defendants fail, we

need not determine whether the district court erred in applying

Eleventh Amendment immunity to some of them.



                                            VII.

       Finally,       Workman    argues     that     subject     matter    jurisdiction

exists over her state law claims.                      The district court ruled

that,    after       dismissing       all   of    Workman’s      federal    claims,   it

lacked jurisdiction to hear her state law claim for injunctive

relief.        The district court also saw no indication that West

Virginia       law    permits    a    private      cause   of    action    for    damages

against Defendants Paine and Dials.

       Workman       contends     that      the    district      court     “can    retain

jurisdiction over [state law claims] even if it dismisses the

federal claims.”         Brief of Appellant at 35.               In general, this is

a correct statement of supplemental jurisdiction.                         See 28 U.S.C.

§ 1367; but see Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S.    89,     106    (1984)        (holding      Eleventh     Amendment     prohibits

                                             17
federal    courts     from   instructing    state    officials   on   how   to

conform their conduct to state law).              Yet “district courts may

decline to exercise supplemental jurisdiction over a claim . . .

if . . . the district court has dismissed all claims over which

it   has   original    jurisdiction.”       28   U.S.C.   § 1367(c)(3)      And

“trial courts enjoy wide latitude in determining whether or not

to retain jurisdiction over state claims when all federal claims

have been extinguished.”        Shanaghan v. Cahill, 58 F.3d 106, 110

(4th Cir. 1995).       There is no indication that the district court

abused its discretion in dismissing Workman’s state law claims. 2



                                    VIII.

      In sum, we hold that the district court did not err in

awarding summary judgment where there were no genuine issues of

material fact.        Workman’s constitutional challenges to the West

Virginia statute requiring mandatory vaccination as a condition

of attending school are without merit.               Finally, the district




      2
       In her reply brief, Workman makes additional arguments
regarding the district court’s ruling on her state law claims.
Because Workman failed to raise those arguments in her opening
brief, we consider the arguments waived.       Fed. R. App. P.
28(a)(9)(A); Yousefi v. U.S. I.N.S., 260 F.3d 318, 326 (4th Cir.
2001) (per curiam).


                                     18
court   did   not   abuse   its   discretion   in   declining   to   exercise

jurisdiction over Workman’s remaining state law claims.

                                                                     AFFIRMED




                                      19
