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In recent weeks, several California school districts have announced that students over the age of 12 will be required to receive the COVID-19 vaccine to attend school in person.
Some districts, such as the Los Angeles Unified School District, will only accept medical exemptions to the shot, while others, like the Oakland Unified School District, will also offer personal belief exemptions.
California for decades has required schoolchildren receive vaccines for a range of diseases from measles to mumps to chickenpox, but experts say it’s unclear whether districts can individually mandate vaccines under current state law.
California law allows the state Legislature and the department of public health to set vaccination requirements for schoolchildren but does not include a process for local school boards.
Legal scholars expect that the mandates will be challenged in court.
When the Culver City Unified School District announced in August it would require all eligible students to be vaccinated against COVID-19, the announcement was met with overwhelming support from the surrounding Los Angeles County community.
But as other schools across California have announced similar mandates in recent weeks, questions have emerged about whether individual districts can legally require public schoolchildren to receive COVID-19 shots, spurring opposition.
The Los Angeles Unified School District saw protesters when its board voted to mandate COVID-19 shots for students over 12 years of age on Sept. 9. The vote led to claims online that the district did not have the legal authority to require vaccinations. Last week, a crowd of parents holding signs with slogans like "My child, my choice" gathered outside a high school in Glendale, even though the school currently has no COVID-19 vaccination mandate in place for pupils.
Experts say previous legal rulings indicate that schools can generally mandate vaccinations for students and employees. But in California, where the state Legislature has already passed laws on student vaccination mandates, it’s unclear how much latitude districts might have to require schoolchildren to get the shot.
Legal scholars expect that the courts will have to work out the details. In the meantime, here’s what we know.
Leslie Jacobs, a professor of constitutional law at McGeorge School of Law in Sacramento and director of the Capital Center for Law & Policy, said legal scholars "always" expect to see constitutional challenges to vaccine mandates.
But in the case of school vaccination mandates, she said those challenges "should not be strong" and are unlikely to succeed in court given past rulings.
"Religious liberty shouldn't be a winner constitutionally and bodily integrity — ‘I can't have a shot in my body’ — should also not be a winner constitutionally," Jacobs said.
Government entities like schools and the U.S. Army have historically been able to require vaccinations based on legal precedent set by Jacobson v. Massachusetts in 1905.
At the time, Massachusetts law empowered local health boards to enforce mandatory, free vaccinations for adults if it was deemed crucial to the health and safety of the surrounding community. Adults who refused to get vaccinated faced a $5 fine.
During a smallpox outbreak in 1902, the city of Cambridge mandated the vaccination of all of its residents. One resident, Henning Jacobson, refused, sparking a case that eventually went before the U.S. Supreme Court.
The court upheld the vaccination requirement. That decision firmly established the power of states and other government entities to enforce compulsory vaccinations in the interest of public health, according to legal scholars.
"A community has the right to protect itself against an epidemic of disease which threatens the safety of its members," Justice John Marshall Harlan wrote in the majority opinion in the case.
California’s Current Vaccination Laws
Vaccinations for California schoolchildren are currently regulated by Senate Bill 277, which passed in June 2015. The legislation was prompted by an outbreak of measles at Disneyland in 2014 that ultimately infected more than 150 people from eight different states, Mexico and Canada.
For decades, California has mandated vaccinations against measles, mumps, rubella, diphtheria, hepatitis B, influenza type B, polio, whooping cough, tetanus and chickenpox. But passage of the law removed personal belief exemptions, giving California one of the toughest vaccination mandates in the nation. Without a medical exemption, the only way parents could opt out of vaccinating their children was to home-school them or enroll them in an independent study program without classroom instruction.
The legislation also included several options for adding vaccinations to the mandated list. The state Legislature could pass a new statute or amend the law at any time, opting to add a new vaccination with or without a personal belief exemption.
Alternatively, a clause in the law allowed the California Department of Public Health (CDPH) to mandate new vaccines, taking into consideration advice from health experts. But if a vaccination is added to the schedule in this way, the legislation stipulates that personal belief exemptions must be offered to parents and students.
The law raises several legal concerns for school districts currently mandating COVID-19 vaccinations for students. Dorit Reiss, a professor of law at UC Hastings in San Francisco and a member of the Vaccine Working Group on Ethics and Policy, said the law can be interpreted as a minimum standard that schools must follow and noted that one clause in the legislation gives districts "broad authority" to act in ways that do not conflict with the law.
However, Reiss said legal challenges could stem from the fact that state law does not lay out any sort of formal process for individual districts to add vaccination requirements.
"The argument is that because the state has extensively regulated this area, the state has occupied it, and districts cannot deviate from state law at will," Reiss said. "The broad school immunization law covers it, and there is no room for local action."
Ultimately, it’s unclear where courts will land on the issue. Jacobs said schools mandating COVID-19 vaccinations are "pushing the envelope" legally.
Will More California Schools Mandate COVID-19 Vaccinations?
So far, just a handful of California school districts have mandated COVID-19 shots for students.
Culver City and Los Angeles Unified are the two largest districts to do so in Southern California. Neither are currently offering personal belief exemptions.
Last week, the Oakland Unified School District and Piedmont Unified School District, both in Alameda County, became the first districts to mandate the vaccination in Northern California. While Piedmont Unified is only allowing medical exemptions, Oakland Unified will accept personal belief waivers.
Other school districts seem less eager to jump into new mandates. Officials with the San Francisco Unified School District and the San Diego Unified School District told CalMatters earlier this month that they did not plan to set a vaccination requirement.
When Culver City Unified announced its vaccination mandate, Superintendent Quoc Tran told EdSource that he believed the requirement was legally sound. He said school officials did not ask district lawyers to look at the policy.
A spokesperson for Los Angeles Unified declined to comment on the school’s legal authority for this article, and a spokesperson for Oakland Unified said they could not discuss legal specifics with PolitiFact California as the school believes "there is the possibility of litigation on this topic."
If school districts get challenged in court, Jacobs, with the McGeorge School of Law, said a judge could issue an emergency order to halt vaccination requirements as the case moves through the legal system.
It’s also possible that districts soon won’t be making the vaccination rules in classrooms across the Golden State. During a media briefing last week, California Health and Human Services Secretary Dr. Mark Ghaly said officials are considering a statewide requirement, although no definitive decision has been made.
Gov. Gavin Newsom on Tuesday said school mandates are "still on the table."
In the meantime, whether or not California school districts can independently require students to get vaccinated will likely be fought out in the courts.
That process may be repeated across the country as districts in other places confront their own state laws on vaccinations in schools.
"State law controls," Jacobs said. "It will be up to a court to look at these sources of state law to determine what's happening."
Email interview with Dorit Reiss, a professor of law at UC Hastings and a member of the Vaccine Working Group on Ethics and Policy, Sept. 23, 2021
Zoom interview with Leslie Jacobs, a professor of constitutional law at McGeorge School of Law and director of the Capital Center for Law & Policy, Sept. 23, 2021
The Los Angeles Times, Culver City Unified to require student COVID-19 vaccinations, in what may be a first, Aug. 18, 2021
The Los Angeles Times, L.A. school officials order sweeping student vaccine mandate, a first by a major district, Sept. 9, 2021
Cornell Law Library Legal Information Institute, Henning Jacobson v. Commonwealth of Massachusetts
California Legislative Information, Senate Bill No. 277
National Conference of State Legislatures, States With Religious and Philosophical Exemptions From School Immunization Requirements, April 30, 2021
The Los Angeles Times, California Legislature passes mandatory vaccination bill, June 29, 2015
SF Gate, State Assembly approves vaccine bill, June 25, 2015
Centers for Disease Control, Measles Outbreak — California, December 2014 - February 2015, Feb. 20, 2015
Culver City Unified School District, Facebook post, Aug. 17, 2021
Los Angeles Unified School District, Los Angeles Unified to Require All Students 12 and Older to be Vaccinated Against COVID-19 by January 10, 2022, Sept. 9, 2021
Los Angeles Unified School District, Safe Steps to Safe Schools: Frequently Asked Questions
Piedmont Unified School District, PUSD Board Meeting Summary – September 22, 2021, Sept. 24, 2021
Oakland Unified School District, OUSD Board of Education Passes Vaccine Requirement for Students 12 Years Old and Up, Sept. 23, 2021
CalMatters, Other school districts in no rush to follow Los Angeles Unified vaccine mandate, Sept. 10, 2021
EdSource, Culver City Unified mandates Covid vaccine for students, possibly a first for California, Aug. 18, 2021
NBC Bay Area, California Considers COVID-19 Vaccine Mandate for Students 12 and Up, Sept. 23, 2021