Law & Courts

Can They Do That? Questions Swirl Around COVID-19 School Vaccine Mandates

By Mark Walsh — September 10, 2021 5 min read
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Vaccines—and the legality of mandating them—are once again at the center of the debate over public health measures. Opponents already have vowed legal challenges to the Los Angeles Unified School District’s vote to require COVID-19 vaccines for all students 12 and older who attend school in person, among a handful of few districts nationwide to take such a steps so far.

Some courts have already refused to block vaccine mandates for workers and for college students, ruling that challengers are unlikely to succeed on the merits of their claims under U.S. Supreme Court precedents.

So, let’s look at the legal landscape, especially for vaccines requirements for students.

How long have school vaccination mandates been around?

Historians say Boston, in 1827, became the first U.S. city to require children entering its public schools to show evidence of vaccination for smallpox. School vaccination laws spread across many states in the latter half of the 19th Century.

When did the U.S Supreme Court first rule on vaccine mandates?

More than a century ago. Here’s how it came about.

In 1902, Massachusetts gave municipalities the authority to adopt penalties for the unvaccinated. That same year, the board of health in Cambridge, Mass., required all inhabitants to be vaccinated for smallpox, which was epidemic in that area. Henning Jacobson, a Lutheran minister who had had an adverse reaction to a smallpox inoculation in the past, refused to follow the mandate. He was fined $5, about $140 to $150 today, and he appealed all the way to the U.S. Supreme Court, arguing that the mandate violated the due-process clause of the 14th Amendment.

In its 1905 decision in Jacobson v. Massachusetts, the court upheld the state law based on the state’s “police” power, its general authority drawn from English common law to legislate in many areas. “The police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety,” Justice John Marshall Harlan wrote for the court. “A community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Harlan suggested the vaccine requirement could not be enforced against an unvaccinated person for whom a “particular condition of his health or body would be cruel and inhuman in the last degree.”

Has the Supreme Court ruled on a vaccination mandate specific to schoolchildren?

Yes. In a 1922 decision, Zucht v. King, the court upheld a San Antonio, Texas, city ordinance that required public and private schools in the city to provide a list of pupils, teachers, and other personnel and whether they had complied with a requirement for a vaccination for smallpox. The ordinance was challenged on behalf of a student, Rosalyn Zucht, who was expelled from a public school when her parents refused to provide a certificate of vaccination. Their suit argued that smallpox had not been much of a problem in San Antonio for some 10 years, and that other children had gone unvaccinated but were not expelled. The suit raised 14th Amendment equal protection and due process claims.

In a short decision, Justice Louis D. Brandeis reinforced Jacobson, saying that case and others made it clear that a state could delegate to its municipalities the authority to adopt measures such as vaccination requirements. “These ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health,” Brandeis wrote.

Don’t schools already require many vaccinations for attendance?

Yes. Over the 20th century, many schools required, as they became available, vaccinations for tetanus, diptheria, pertussis, and polio, in addition to smallpox. In 1962, the federal Vaccination Assistance Act was passed to fund a broader national vaccination program. A vaccine for measles was licensed in 1963 and for rubella in 1969. There are now some 16 vaccinations recommended for schoolchildren, according to the federal Centers for Disease Control and Prevention.

With the growth of vaccination requirements, there has also been a steady resistance to vaccinations among some parents. According to the National Conference of State Legislatures, 44 states offer religious exemptions and 15 offer philosophical exemptions for at least some school vaccination requirements. Some states have tightened their criteria for such exemptions in recent years among falling vaccination rates and outbreaks of certain diseases.

What have the courts said so far about COVID-19 vaccines?

The most significant decision so far on a COVID-19 vaccination requirement in education came in a case involving Indiana University’s mandate that all students must be vaccinated to attend school on campus this fall.

A federal district judge rejected a preliminary injunction sought by a group of eight students challenging the mandate. In a lengthy opinion on July 18, the judge cited Jacobson and Zucht in upholding, at least preliminarily, the university’s vaccine mandate. The judge said the objecting students may apply for a religious exemption (several plaintiffs had already received such exemptions by the time the decision came down) or choose to go to a college without such a requirement.

A panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, upheld the district judge in August. In a succinct opinion, that court said that given Jacobson, “which holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2.”

Has the Supreme Court had anything to say on mandatory COVID-19 vaccinations?

Not yet. The Indiana University students asked Justice Amy Coney Barrett, who is circuit justice for the 7th Circuit, to step in to their case, but she refused on Aug. 12. That is not any kind of ruling on the merits.

There is a robust debate going on among certain legal scholars about whether Jacobson (and by extension, Zucht) is still appropriate for a very different era for both the law and for public health. One scholar has written that during the COVID-19 pandemic, courts have “reflexively relied on the mythicized account of Jacobson to rubberstamp unprecedented restrictions on individual freedom.”

That view may have support on the Supreme Court itself. Last November, in a concurrence to a decision that granted religious entities relief from COVID-motivated state occupancy limits, Justice Neil M. Gorsuch raised questions about Jacobson’s relevance in modern times, especially in balancing religious rights against pandemic restrictions. “Jacobson hardly supports cutting the Constitution loose during a pandemic,” Gorsuch wrote in Roman Catholic Diocese of Brooklyn v. Cuomo.

That’s probably not the last word from any court on this subject.

A version of this article appeared in the September 22, 2021 edition of Education Week as Can They Do That? Questions Swirl Around COVID-19 School Vaccine Mandates


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