School & District Management

How ‘Vaccine Discrimination’ Laws Make It Harder for Schools to Limit COVID Spread

By Sarah D. Sparks — September 21, 2021 4 min read
Principal and District Superintendent Bonnie Lower takes the temperature of a student at Willow Creek School as the school reopened, Thursday, May 7, 2020, in Willow Creek, Mont.
  • Save to favorites
  • Print

In Montana, it’s as much against the law for a teacher or principal to ask a student’s vaccination status as it is to ask them their religion.

Vaccine antidiscrimination laws—which bar policies that treat those who have been vaccinated against COVID-19 differently from those who have not in school, work, or other areas— are making contact tracing, quarantines, and other mitigation efforts challenging for education leaders coping with a Delta-driven surge of COVID cases in their schools and communities.

“At some point, it’s like, are the schools and the health-care providers the only ones trying to bail water on this ship as we sink?” said Tobin Novasio, the superintendent of the Lockwood school district just outside Billings.

While Montana was the first to pass such a strict vaccine antidiscrimination law, nine other states including Ohio, New Jersey, South Dakota, and Tennessee have bills pending with similar language.

“I think all of our school districts are figuring out how do they make this work, but they are unable to rely on the CDC guidance in the way that the rest of the nation can,” said Lance Melton, the executive director of the Montana School Boards Association.

A little more than half of vaccine-eligible Montanans have completed the shots, and the state law known widely as HB702 categorizes unvaccinated people as a protected class for discrimination purposes. Montana’s law still allows schools to require vaccines for other childhood illnesses, such as measles, but unlike in most states, the Treasure State’s standard schedule of vaccinations is set by the legislature, not state health officials.

In practical terms, that means schools cannot ask teachers or students whether they have been vaccinated, and cannot use the Centers for Disease Control and Prevention’s guidelines to set quarantine rules or track potential close contacts from outbreaks. Those recommendations call for shorter time in isolation for vaccinated people who have been exposed to the coronavirus, but education leaders cannot ask for someone’s vaccination status or differentiate contact tracing, quarantine, or other policies based on that. They say the anti-discrimination rules make it next to impossible to track and contain outbreaks.

School leaders barred from differentiating

As of Sept. 21, Yellowstone County, Mont., has nearly 2,200 active COVID-19 cases or about 13 percent of the county’s 164,000 residents. All eight schools in the county have had at least one student or staff member affected in the last month. Schools are allowed to ask those who have been exposed to stay home and use remote instruction for 10 days, but “the big issue is you have to treat everyone the same, so even though the CDC says vaccinated people don’t have to quarantine, that’s been determined [by the county] to be a violation of the law,” said John Felton, the health officer for Yellowstone County. “So all we can do is suggest to people, but we can’t tell them that they need to quarantine.”

“We’re in a real surge right now,” Felton said. “We’re at levels we haven’t seen since late last year.” In the last seven weeks, new infections in the county have risen from about 16 a day to more than 100. And while about 12 percent of cases were among children under 18 last year, Felton said that age group now makes up a quarter of all new symptomatic COVID-19 cases.

Local health departments last year deputized school officials to help trace those who have been exposed to the virus, but schools are out of the loop now. Novasio said Lockwood was already down eight substitutes last week when two more teachers tested positive for COVID-19. Novasio said it has become next to impossible to get updated information about who has tested positive at a given school, and the district generally must rely on parents’ and staff members’ self-reports.

Novasio said schools also have had some difficulty convincing those who test positive to stay in quarantine. “People still have it in their mind that COVID doesn’t impact kids because that’s what we heard a year ago—whereas with the Delta variant, I mean, it’s a completely different ballgame,” he said.

Further complicating prevention efforts, many districts across the state do not require universal masking. Novasio said only about 10 percent to 20 percent of students in his district regularly wear masks.

“We have protocols that we put in place, and we’ve asked our teachers to keep kids spread out as much as they can, having them in pods and those types of things,” he said. “But things like masks have become such a flashpoint.”

Ongoing battles over vaccination and masking in schools have also worsened statewide shortages in substitute teachers, which may drive schools to close faster than student outbreaks.

“You’re going to go into a room every day and have about seven hours of exposure to a population base that is known to be not vaccinated—you know, under 11. Other than health care, no others than day care and public school teachers are on the front lines like that,” Melton said. “Our teaching force and absolutely our subs were kind of thin to begin with,” adding that retirees, likewise, are reluctant to come in.

At least one state, however, has moved in the opposite direction. While it, too, has a vaccine-discrimination bill pending in the legislature, Oregon’s newly updated labor rules now mandate that schools, like other employers, prove that all staff have been fully vaccinated before allowing them to work less than 3 feet apart or go without a facial mask.

A version of this article appeared in the September 29, 2021 edition of Education Week as How ‘Vaccine Discrimination’ Laws Make It Harder for Schools to Limit COVID Spread

Events

Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.
Ed-Tech Policy Webinar Artificial Intelligence in Practice: Building a Roadmap for AI Use in Schools
AI in education: game-changer or classroom chaos? Join our webinar & learn how to navigate this evolving tech responsibly.
Education Webinar Developing and Executing Impactful Research Campaigns to Fuel Your Ed Marketing Strategy 
Develop impactful research campaigns to fuel your marketing. Join the EdWeek Research Center for a webinar with actionable take-aways for companies who sell to K-12 districts.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

School & District Management Q&A When This Principal Talks About Mental Health, People Listen. Here's Why
The NASSP Advocacy Champion of the year said he used stories from his school and community to speak with his state’s legislators.
6 min read
Chris Young, a principal from Vermont, poses for a photo in front of a Senate office building in Washington, D.C.
Chris Young, a principal from Vermont, stands in front of a Senate office building in Washington on March 13, 2024. Young was among the secondary principals to meet with legislators urging them to keep federal funding for schools stable.
Olina Banerji/Education Week
School & District Management Teacher Layoffs Are Mounting. How Districts Can Soften the Blow
Layoffs are coming in districts large and small. Here's how district leaders can handle them.
8 min read
Pencil Eraser Erasing Drawn Figure
AndreyPopov/iStock/Getty
School & District Management Opinion 5 Strategies to Combat Student Disengagement
When principals get serious about building a more inclusive school community, it doesn’t just benefit students, but teachers as well.
Michelle Singh
5 min read
Illustration of a bright vibrant school where students feel welcomed. In the background the sky is filled with enthusiastic raised hands.
Vanessa Solis/Education Week via Canva
School & District Management Advocacy or Electioneering? Education Leaders Walk Fine Line in School Voucher Debate
Texas is cracking down on district leaders' allegedly political speech—in what others see as a pretext for quashing anti-voucher sentiment.
5 min read
Republican Texas Attorney General Ken Paxton walks away after announcing Texas' lawsuit to challenge President Obama's transgender bathroom order during a news conference in Austin, Texas, on May 25, 2016.
Republican Texas Attorney General Ken Paxton walks away following a news conference in Austin, Texas, on May 25, 2016. Paxton recently sued several Texas school districts for allegedly engaging in electioneering before the March 5 primaries.
Jay Janner/Austin American-Statesman via AP