Some of California’s largest districts are facing a new legal roadblock in their drive to mandate vaccinations for schoolchildren by the end of 2021.
Two similar lawsuits have been filed in state Superior Court arguing that only the state, not local school districts, have the authority to mandate vaccines for schoolchildren. By potentially denying unvaccinated children access to campuses, the plaintiffs claim, the Los Angeles and San Diego districts would be violating the students’ right to a public education.
The litigation seeks to halt the vaccination requirements, and it also wants the courts to declare that unvaccinated students can participate in sports, clubs, and other school-related activities.
The lawsuits are notable—if not surprising—because California has been among the most aggressive states in closing vaccination loopholes for students. More broadly, the pandemic has raised complex health and even constitutional questions centered on the tension between the right of governments to keep people safe and that of individuals to make their own decisions.
“I think it was completely expected that a [student] mandate would reach the courts. Los Angeles’ is the one that has a timeline, the one that’s becoming operational,” said Dorit Rubinstein Reiss, a professor at Hastings College of Law in San Francisco, and an expert on immunization law. “Parents who do not want to vaccinate their children are naturally going to look for ways to avoid doing so.”
Student vaccine policies have also been instituted in Oakland Unified, Culver City Unified, and Piedmont Unified.
At the forefront of vaccination litigation
The lawsuit filed in San Diego is being brought by Let Them Breathe, a group that opposes mandatory student masking and vaccination, while the Los Angeles lawsuit was brought by a parent on behalf of an unnamed student. Both sets of plaintiffs are represented by the same San Diego-based firm, Aanestad, Andelin & Corn.
In their filings, the plaintiffs allege, among other things, that children are less susceptible to the virus and that in any case “natural immunity” acquired by contracting COVID is superior to that provided by the vaccines.
Nationally, medical professionals disagree about the level of COVID mitigation strategies school districts ought to use. But many pediatricians note that children can and do become seriously ill from the virus, or even die.
Los Angeles currently requires all students 12 and over to be vaccinated by Dec. 19; some students participating in extracurriculars must show proof of vaccination before that. San Diego’s policy, passed about a month after Los Angeles’, requires it for students age 16 and older by Dec. 20. Once the Food and Drug Administration fully approves the use of vaccines for children ages 12-15, it will phase in the requirement for that age group.
Each state has a schedule of vaccinations all schoolchildren must receive before being admitted to school, and California’s is among the strictest. The Golden State has cracked down on loopholes to vaccination, passing a law in 2015 to eliminate personal exemptions after a measles outbreak. In 2019, lawmakers tightened up medical exemptions.
(By contrast, about ten states have recently passed laws forbidding local or state governments from requiring the COVID-19 vaccines.)
Adding new mandatory vaccinations for California children—as Gov. Gavin Newsom has said he will do when the FDA approves the vaccine for younger children—is trickier. The legislature has broad authority to alter the list as it sees fit. But a mandate issued by the California Department of Public Health would need to include personal exemptions.
What happens if parents refuse to vaccinate?
The new lawsuits contains plenty of education implications, too.
Like many other states, California has taken steps to significantly reduce online learning. Beginning in the 2020-21 school year, parents who decide to keep children at home are allowed to enroll them in an “independent study,” which does not guarantee daily live instruction for children beyond the third grade.
That format would presumably be the only public schooling option available for students who don’t meet a district’s vaccination date, and whose districts do not offer other online-learning options. The plaintiffs claim that the districts’ policies would “involuntarily” enroll unvaccinated students in independent study and that they would “suffer irreparable harm” from being disallowed from campuses, sports, and extracurriculars. And it claims that the districts unfairly give flexibility to migrant or homeless students on immunization that other students don’t receive.
Reiss, the law professor who studies immunizations, said that attempts to second-guess the science in legal cases tend to fail in the courts. But some of the other legal arguments are less clear-cut: Districts’ authority to mandate vaccinations isn’t as clear as states’. Another gray area is that the vaccines have been federally approved under an emergency process.
Finally, she said, the education arguments are unusual, especially the argument contrasting unvaccinated students to migrant and other student populations. “It’s a reverse-discrimination argument, that you’re trying to help these kids, so you’re discriminating against those,” she noted.
A spokeswoman for the Los Angeles district said it had not yet been served with the lawsuit. A San Diego district spokeswoman said the district doesn’t comment on pending litigation.
California has long been a stronghold of the anti-vax movement, and a variety of organizations have sprung up to challenge its COVID-19 policies. The Let Them Breathe group is also challenging a state-ordered masking requirement in California schools.
Children under age 18 currently account for 15 percent, or about 670,000, of California’s documented COVID-19 cases, according to the state department of health, though they are much less likely to die of the virus than other groups. In all, some 4.6 million Californians have contracted the virus.
