Growing contingents of parent activists in the United States continue to campaign to limit or even ban vaccinations of children. This is not a trivial matter.
Against this background, imagine that the parents of a student with a rare childhood disease have asked officials in your local school district to ban unvaccinated children from classes during a recent outbreak of the measles. The parents are concerned that if their child contracts the measles, the consequences could be life-threatening. Another set of parents of unvaccinated children, backed by threatened litigation, claim that they have a religious right not to vaccinate their children. Although most organized religions do not prohibit vaccinations, some smaller sects do. Other parents refuse vaccinations for their children because they believe that vaccines might cause autism or for philosophical reasons. On the other hand, many parents fear for the safety of their children as they come in contact with students who have not been vaccinated.
Welcome to the debate that educators, parents, lawmakers, and policymakers are engaging in across the country. Because some preventable diseases like measles are experiencing resurgences in areas with low vaccination rates, school officials must balance parental rights and vaccine requirements.
Why Do We Need Students to be Vaccinated?
The recent measles outbreak linked to Disneyland in California stresses the importance of vaccina-tions while highlighting the public health benefits of immunizations. In recent discussions around this outbreak, medical professionals have spoken about “herd immunity.” Herd immunity means that a given population of people is considered to be well-protected against a disease if enough people are immunized. Specifically, outbreaks are limited because vaccinated individuals break the chain of infection. A disease cannot spread to enough people during its incubation period to sustain itself. Thus, 100 percent immunization rates are not needed to achieve “herd immunity.” For example, with measles, if at least 95 percent of students are immunized, an outbreak would likely be limited because the disease would be difficult to spread. Herd immunity protects individuals with medical conditions who cannot be vaccinated from infection, and it also protects those whose vaccinations were not effective, and others who have religious (or other) objections to vaccinations. However, vaccination rates in many communities affected by the recent outbreaks fall below the necessary threshold to maintain herd immunity.
The Washington, D.C.-based National Conference of State Legislatures lists immunization policies for all states, while the Centers for Disease Control and Prevention include lists of state exemptions. Nearly all jurisdictions grant exemptions for people whose religious beliefs oppose vaccinations. In addition, 20 jurisdictions allow philosophical exemptions for those who object to immunizations due to personal, moral, or other beliefs. According to the National Vaccine Information Center, during the 2015 legislative session at least 14 jurisdictions considered bills that would “severely limit” religious belief exemptions or eradicate them completely. However, in some jurisdictions, the religious exemption would still be permissible, but a clergy member would need to affirm in an affidavit or written statement that teachings call for only a reliance of prayer or spiritual healing.
If proposed bills limiting religious and philosophical exemptions are enacted, there will likely be suits alleging violations of the Free Exercise Clause of the First Amendment, as well as privacy claims. These cases will test the government’s ability to require vaccinations against an individual’s right to refuse.
In Phillips v. the City of New York, (2014-15) the 2nd U.S. Circuit Court of Appeals upheld a policy of the New York City Board of Education that allows officials to ban unvaccinated students from attending classes when another child has become infected with a vaccine-preventable illness. The case consolidated separate challenges from three families who claimed their religious freedoms were violated when their kids were banned from school for up to a month at a time during disease outbreaks. The parents in Phillips alleged violations of their substantive due process rights, free exercise rights under the First Amendment, and rights under the Equal Protection Clause of the 14th Amendment, among other claims.
The federal trial court judge cited a Supreme Court case from 1905, Jacobson v. Commonwealth of Massachusetts, which affords state officials broad power in public health matters. Jacobson involved a man who objected to receiving a vaccination during a smallpox outbreak. Ruling for the commonwealth, the Court’s judgment helped to establish the government’s right to require immunizations for public health purposes. In its analysis, the trial court in Phillips noted that the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations. The court also cited more recent federal cases with similar facts, Caviezel v. Great Neck Public Schools (2010) and Sherr v. Northport-East Northport Union Free School District (1987).
On appeal, the plaintiffs again argued that New York State’s requirement for all students to be vaccinated in order to attend public school was unconstitutional. The lawyer for the plaintiffs tried to distinguish these facts, arguing that in 1905 the Supreme Court could not have anticipated that school children would be subjected to so many vaccines. The plaintiffs were unsuccessful on appeal, as the 2nd Circuit held that there was no substantive due process violation because vaccinations were within the state’s police power insofar as they are in the interest of the general population. Also, according to the court, temporarily excluding students who did not have the chicken pox vaccine during an outbreak did not violate the Free Exercise Clause because the right to practice religion does not include the liberty to expose the community or the child to disease.
Suzanne E. Eckes, JD, PhD, a professor at Indiana University, has been widely published on school legal matters. Charles J. Russo, JD, EdD, is the Panzer Chair in Education and an adjunct professor of law at the University of Dayton in Ohio.
Sidebar: Recommendations for School Officials
- Know vaccination laws in your jurisdiction and disseminate this information to parents.
- Provide annual professional development to teachers and staff about the need for vaccinations.
- Offer an information night for parents to highlight the importance of vaccinations.
- Post both the board’s policy and the immunization rate of the student body on the district’s website and in teacher, student, and parent handbooks.
- Review policies annually to ensure they comply with currents federal and local laws.
It should be noted that the case from the 2nd Circuit is binding precedent only in Connecticut, New York, and Vermont. However, the 4th Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia) and other federal courts have ruled in similar ways.