District school vaccine mandates and preemption

This article about school district vaccine mandates and the principle of preemption was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about vaccination’s social and legal policies. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.

On July 5, 2022, Judge Mitchell Beckloff from the Superior Court of Los Angeles granted a petition [add decision] to strike down Los Angeles Unified School District’s (LAUSD) COVID-19 vaccine mandate. This decision is in line with a previous decision in relation to San Diego’s School District Mandate. In both cases, the heart of the decision is that under current California law, the power to mandate vaccines belongs to the state, not an individual district – in legal terms, that state law preempts the power of the district in this case.

In both cases, this was an issue that could always have gone both ways. It also does not change much on the ground, since LAUSD never actually implemented its mandate. Nonetheless, it does have implications for the districts’ power to mandate vaccines going forward. 

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In August-September 2021 several California school districts announced that they will mandate COVID-19 vaccines. Among them were the Los Angeles Unified School Districts and San Diego’s Unified School District. Unsurprisingly, opponents sued very early, challenging these requirements. 

As far as I know, the Los Angeles school district never implemented its school mandate, and the San Diego school district had it put on hold early. 

The legality of district vaccine mandates and preemption

Constitutionally, state school mandates were on very, very strong legal grounds, and if the state has mandated COVID-19 vaccines, they would likely be supported by that jurisprudence. But these school mandates were always on more vulnerable legal grounds, in two ways. (This is not new; I have been saying this since September 2021. I said it in September 2021, in PowerPoint presentations and to journalists).  

One concern I raised is that it is still an open legal question whether schools can mandate a vaccine under an Emergency Use Authorization (EUA). I think there are good reasons for saying yes, but it’s not a settled legal question. Vaccines for children 15 and under are still covered by the COVID-19 vaccine EUAs.

More important for these decisions, there is the question of whether individual districts could mandate vaccines that the state does not. This was an area of legal ambiguity from the beginning. The bounds of the debate are because California has a very elaborate state-level school immunization law, that already requires some vaccines. 

Generally speaking, if state law conflicts with local law, state law wins, in California. The legal term of art for this is “preemption” – we say that state law, the higher level of the law, “preempts” conflicting local law. State law can conflict with local law explicitly – state law says “require diphtheria vaccines,” and a local government tries to say “you don’t have to require diphtheria vaccines,” – in that case, the local law will be invalid, and state law wins.

But state law can also conflict with local law by implication, and one way that can happen is that if the state has thoroughly regulated an area of law, any local foray into that area, goes the argument, are in conflict because the state has already set the rules. That is the argument opponents of the mandate made here: they argued that since California already has an elaborate framework for school immunization mandates, districts cannot just go at it alone. 

A few points. First, this is a legitimate argument. The relative roles of school districts and the state in an area this heavily regulated require legal interpretation, because there are, in fact, conflicting legal arguments. Courts have an important role here in reading the legal documents and providing guidance.

Second, this is not clear-cut. On one hand, opponents have a decent argument that the state does have an elaborate scheme here and that the intent of the scheme is to govern the area, and districts should not go alone. Such an argument was accepted by at least one court in New York state when New York City mandated flu vaccines. That said, New York’s highest court found the opposite, in interpreting the law, which demonstrates that this kind of argument really is a matter of legal interpretation. Here, supporters of the mandate also have a decent argument. 

The argument for the district’s powers to require COVID-19 vaccines is that §35160 of the Education Code provides the district broad powers. That section says:

The governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.

Not only that, but the legislature provided interpretive guidance that this should be interpreted broadly, saying in §35160.1 (b) that “It is the intent of the Legislature that Section 35160 be liberally construed to effect this objective.”

The question before the courts here really was how should the legislative scheme be interpreted in these circumstances, given these conflicting indications, and a court could have gone either way. In this case, both superior courts that found against the mandate emphasized the language in §35160 that said that left out of the school district’s powers things that are “preempted” by law.

The LAUSD decision concluded that the state law did not limit vaccines to the 10 enumerated and that adding vaccines did not conflict with state law but “actually augments it.” But the court pointed out that the provision that allows the California Department of Public Health to add vaccines required, such as additional vaccines, and a personal belief exemption. The lack of that exemption does conflict with the state law, because, said the judge, “[t]he Legislature determined the only vaccines for which no personal belief exemption is applicable are the Ten Vaccines.” 

Although the language above suggests that the districts may add vaccines as long as they include a personal belief exemption, the rest of the decision makes it clear that is not how the court reads the law. The court concluded that because the legislature expressly delegated the power to add vaccines to the California Department of Public Health, the legislature showed “intent that vaccines required for school are exclusively a state concern.” Not something for individual districts.

Note: this is not a bad interpretation. It’s a reasonable interpretation of the framework. It was never clear that districts can add COVID-19 vaccines, and although it would be good to have some higher courts speak to this, this approach fits the legal framework.

That said, this is something that the legislature is the final arbiter on. This is a question of interpreting state law, and if the legislature did not intend this interpretation – if the legislature wants districts to be able to require additional vaccines – the legislature can and should change the law to make that clear.

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Implications and the anti-vaccine reaction

Under these decisions, especially if they are upheld by higher courts, individual districts cannot add vaccines to the vaccines required for school in California, at least not without new legislative authorization. The mandates in San Diego Unified School District and LAUSD have been found invalid, and cannot be enforced.

That said, some of the anti-vaccine reaction is extreme and unfounded. Anti-vaccine activist Steve Kirsch has called on parents to reach out to him to ask for money damages. That is unfounded. Mr. Kirsch has already concluded – wrongly – he understands science better than actual experts, with embarrassing results, and now seems to think he understands the law well enough not to have to consult actual legal professionals. He is wrong here too.

Sovereign immunity means that there are limits on the ability to sue the government for money damages because someone does not agree with a policy decision – use of discretion is an explicit exception to the ability to sue the government. The decision to require vaccines is a policy decision – and one whose legality could go either way – and officials cannot be sued for it.

So, this is certainly a limit on the ability of individual school districts to require additional vaccines for school. These decisions reserve that power to the state – until the legislature decides to change that balance. However, they do no more. They do not create a cause of action for dissatisfied people against the districts. 

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