When the San Antonio School Board passed an ordinance in 1914 mandating the smallpox vaccination for all school-aged children, the parents of Rosalyn Zucht balked. Texas was not experiencing a smallpox epidemic and they believed the vaccine would harm Rosalyn’s health, so they sent her to school unvaccinated. Sure enough, the school turned her away. Predictably, the Zucht family sued.
Their case, Zucht v.King, was decided by the U.S. Supreme Court in 1922. Justice Louis Brandeis, echoing Jacobson v. Massachusetts, concluded that “it is within the police power of a State to provide for compulsory vaccination.”
For over a century, states have relied on the legal logic of Jacobson and Zucht to justify vaccine mandates. Children in every state currently receive—at a minimum— the DTap (diphtheria, tetanus, and whooping cough), varicella (chicken pox), IPV (inactivated polio), and MMR (measles, mumps rubella) vaccines to attend school.
Ensuring that students of all ages—from pre-K through graduate school—are vaccinated is not only legal but also a crucial public health measure. It is the best way to keep schools open and avoid outbreaks of vaccine-preventable diseases.
Unfortunately, a Covid-19 vaccine mandate faces two barriers. First, the Covid-19 vaccine is not approved for use in children under 16, so states cannot make it a condition of attending school. The Food and Drug Administration is expected to grant approval to the Pfizer vaccine for 12- to 15-year-olds this month, but that will still leave children from preschool to middle school unvaccinated.
State Mandates Are Unlikely
In addition, statewide mandates are unlikely because the FDA has given the Pfizer, Moderna, and Johnson & Johnson vaccines emergency use authorization (EUA), meaning that the FDA is confident the vaccines are safe and effective but is awaiting more longitudinal data before granting full biologics license application (BLA) approval.
There is no legal precedent for mandating a vaccine approved under EUA, and states have little to gain by imposing a Covid-19 vaccine mandate when on such uncertain legal ground.
Entities other than states have more flexibility to implement Covid-19 vaccine mandates despite EUA. Employers, for example, have received guidance from the Equal Employment Opportunity Commission about employee mandates, and many colleges and universities are announcing mandates. Their students are old enough to be vaccinated, and many administrators are convinced (correctly) that vaccination is the key to bringing students safely back to campus.
Already, more than 100 post-secondary schools have announced Covid-19 vaccine mandates for the 2021-2022 academic year, including the University of California and California State University systems (UC/Cal State), with over 1 million students and employees. The legality of such mandates is rarely questioned, and a recent case, Kiel v. The Regents of the University of California, unsuccessfully challenging an influenza vaccine mandate lends support to the view that they are on firm legal footing.
Exemptions and Opt-Outs
Even mandated vaccines, like Covid-19, allow individuals to opt out. Exemptions for medical reasons are uncontroversial, whereas religious exemptions raise contentious legal issues Religious exemptions have been used indiscriminately, leading to low vaccination rates and outbreaks of vaccine-preventable diseases.
Six states currently reject religious exemptions—most recently Connecticut, on April 28—and their position has withstood legal challenge. Because the U.S. Supreme Court has been increasingly protective of religious freedom, however, schools that do not offer religious exemptions to the Covid-19 vaccination, such as Bowdoin and College of the Atlantic, both in Maine, may find themselves involved in protracted litigation.
School mandates also have been shaped by the Covid-19 vaccines’ EUA approval. More than 20 institutions, including UC/Cal State, have mandates that only take effect once the vaccines are granted final BLA approval.
Most other post-secondary schools are mandating vaccination regardless of full approval. The UC/Cal State approach may be overly cautious, but the lack of case law regarding mandates of vaccines authorized for emergency use makes it difficult to predict how courts will resolve lawsuits on this issue.
Because students are required to comply with an array of rules as a condition of matriculating at a post-secondary school, they are more likely than faculty or staff to be subject to Covid-19 vaccine. Students live in close quarters, socialize in large groups, sit in crowded classrooms, and often have family in other states, which is why they have caused super-spreader events.
Verification and Compliance
Verifying compliance with vaccine mandates raises practical concerns. Without a national or global vaccine registry there is no easy way to track vaccine status. Schools may require students to sign affidavits, and they could designate dishonest reporting of vaccine status as an honor code violation. They could also insist that students submit proof of vaccination, though without an official vaccine registry the issue of what constitutes proof will remain problematic.
Covid-19 vaccine mandates will have a particularly adverse impact on foreign students. Those who have received vaccines developed in Russia or China will be out of compliance with U.S. vaccine mandates, which generally require receipt of an FDA-approved vaccine. Such students will face a Hobson’s choice; study remotely, or get vaccinated with a U.S.-authorized vaccine, even though the risks of an add-on vaccination are unknown.
Governors in Florida, Texas, Arizona, and other states have further muddied the waters by issuing executive orders that prevent schools in those jurisdictions, like Nova Southeastern University in Florida and St. Edward’s University in Texas, from requiring students to show proof of vaccine status. That leaves such schools with two options; jettison their vaccine mandates or find a legal work-around.
In Kiel, Judge Richard Seabolt wrote that the “court is unaware of any case in which a court has struck down a mandatory immunization imposed as a condition of attending school or college.” For over a century, the courts have spoken. It is time to listen.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Eric A. Feldman is the Heimbold Chair in International Law, professor of law, professor of medical ethics and health policy, and deputy dean for international programs at the University of Pennsylvania Carey Law School.