On June 30, 2015, California Governor Jerry Brown signed SB 277, a law amending an already strict mandatory vaccination law for the state’s school children, prescribing 10 mandatory vaccinations for children entering public or private child care centers, preschools, kindergartens and elementary and secondary schools. Prompted at least partially by the 2014 nationwide outbreak of measles originating in Disneyland, the new law removes the ability of parents to exempt their children from vaccinations. However, a “loophole” in the law may exempt special education students from the vaccination requirement. The interesting twist is that a 2015 New York City court decision may become persuasive precedent in any California anti-vaccination lawsuits.
Highlights of the Law
The vaccination law SB 277 will become effective in the state of California on July 1, 2016. Under the law, parents may not exempt their children from vaccination for personal or religious reasons. A licensed physician must supply a written statement that the physical condition or medical circumstances of the child is such that immunization is not considered safe, and the physician must provide a detailed rationale for his or her statement. Unvaccinated children are not to be allowed to attend school; they must be home-schooled.
After the Governor signed the bill, anti-vaccination advocacy groups mounted a massive resistance effort, attempting to gather sufficient signatures to put a referendum question on the November, 2106 ballot to repeal the law. Advocates collected an impressive 233,758 signatures, but this number was short of the 365,880 signatures needed by the September 28, 2015 filing date. However, their online GoFundMe campaigns and other donations raised $170,000.00, which the groups plan to use to pay lobbyists to mount other strategies to defeat the law.
Neither the California Department of Public Health nor the Department of Education has published the regulations that will determine the implementation of SB 277. However, the plain language of Section 2 of the law states that, “This section does not prohibit a pupil who qualifies for an individualized education program [under IDEA] from accessing any special education and related services required by his or her individualized education program.” This so-called “loophole” has led several large districts in the state, including the Los Angeles Unified School District, to exempt special education students from the vaccination requirement in order for them to attend school to receive services mandated by their IEPs. Orange County schools, however, are requiring vaccinations for special education students.
The real problem is that special education students make up at least 10% – 12% of public school students in California. Public health authorities advise that “herd immunity,” the protection that accrues to unvaccinated individuals, requires that 85% of a given population is vaccinated. Exempting special education students from mandatory vaccinations, therefore, comes dangerously close to negating herd immunity for those children and other individuals medically unable to receive vaccinations.
The U.S. Supreme Court has consistently upheld the right of the states under the Tenth Amendment to exercise the powers not specifically delegated in the U.S. Constitution to the two other branches of government. The seminal court decision affirming the police power of the states to mandate vaccination of individuals against disease was the 1905 decision in Jacobson v. Commonwealth of Massachusetts. In Jacobson, state public health authorities were dealing with the containment of a smallpox epidemic in the city of Cambridge. Jacobson refused to undergo vaccination against the disease, arguing his rights under the Preamble to the Constitution, the “spirit” of the Constitution, and the Fourteenth Amendment’s Due Process and Equal Protection clauses. The Court rejected Jacobson’s arguments and affirmed the police power of the state to embrace “such reasonable regulations . . . as will protect the public health and the public safety.” Josephson was ultimately found guilty and ordered to be incarcerated until he could pay his monetary fine of $5.00.
Opposition to mandatory vaccination has persisted throughout the century since Jacobson, and most states, including Pennsylvania, New Jersey and New York, allow parents to exempt their children from mandatory vaccinations on the basis of valid medical reasons or sincere religious beliefs. However, the Second Circuit Court of Appeals in January 2015 affirmed the right of the City of New York to refuse to allow a group of unvaccinated children to attend school during an outbreak of chicken pox. The children had previously received exemptions from vaccinations on the basis of their parents’ religious beliefs. The Second Circuit held that mandatory vaccination as a condition to attend school does not violate the Free Exercise clause, nor does it violate any other Constitutional provisions, since there is no substantive due process right to public education. Rehearing and rehearing en banc were both denied, and the U.S. Supreme Court denied certiorari on October 5, 2015.
Despite the geographic distance, commentators are suggesting that the High Court’s denial of certiorari to this New York controversy may become persuasive precedent to the lawsuits that are predicted to arise in opposition to California’s SB 277. Lawsuits will have to wait until there is demonstrable injury, that is, until the law actually takes effect on July 1, 2016. This time lag will give anti-vaccination advocacy groups the opportunity to sharpen their arguments against the new law, but it also gives the California Department of Public Health and the Department of Education time to craft regulations to clarify the language pertaining to provision of special education services for eligible students.
Bottom Line for Pennsylvania Schools
July 2016 will be an interesting time to watch developments in California, and Pennsylvania districts should take special note. Subchapter C of the Pennsylvania School Code, Section 23.84, provides that parents may exempt their children from immunizations for medical and religious or philosophical reasons, i.e., sincere “moral or ethical considerations.” In addition, unvaccinated children may attend school provisionally for eight months. The Subchapter does not mention excluding unvaccinated children from school, but the Pennsylvania Department of Health website explicitly states that children exempted from vaccination may be “removed from school” during a disease outbreak. For the last eight years, in 50 of the 67 Pennsylvania counties, schools failed to reach the percentage of Kindergarten children vaccinated with MMR vaccine to confer herd immunity to measles infections. Removal from school of unvaccinated children may become necessary if a measles outbreak occurs.
Pennsylvania legislators have proposed bills to tighten the Commonwealth’s immunization requirements, especially with regard to exemptions for parents’ philosophical beliefs. With no mention of exclusion of unvaccinated children in the Pa. School Code, school districts need more specific guidance about their rights to exclude unvaccinated children from schools during communicable disease outbreaks. Whether that guidance will have to come from the courts or the legislature remains to be seen, but the Phillips decision may well be significant in Pennsylvania as well.
This article refers to the following cases:
- Jacobson v. Commonwealth of Massachusetts, 25 S. Ct. 358 (1905).
- Phillips v. City of New York, 775 F.3d 538 (2015), rehearing and rehearing en banc denied, Mar. 9, 2015, cert. denied, 136 S. Ct. 104 (2015).
School Law Bullets are a publication of the school law attorneys of KingSpry’s Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
