Last updated on August 24th, 2019 at 04:33 pm
Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), 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 the social and legal policies of vaccination. Additionally, Reiss is also 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 disease.
A recurring question that comes up is whether a private school or daycare can increase its safety from disease by refusing to accept unvaccinated children. Generally speaking, private schools and daycares can reject or accept children for whatever reason it wants. If the school accept federal funds it cannot, under Title VI of the Civil Rights Act of 1964, discriminate based on “race, color, or national origin.” But that’s it.
However, some laws enacting exemptions from immunization requirements are phrased in ways that suggest that private institutions are required to accept exempt children. This varies from state to state.
Private schools can exclude unvaccinated children
Recently the issue came up in Maryland, where Jewish religious schools wanted to know whether they can refuse admission to children whose parents claimed a religious exemption from school immunization requirements under Maryland law.
In response, Maryland’s Attorney General clarified that no, private institutions are not required to accept unvaccinated children:
“A private or parochial school is not required to admit “an unvaccinated student simply because the student asserts a religious exemption,” according to the Office of Maryland Attorney General Brian Frosh.
This is a correct outcome. Traditionally private institutions have the right to set terms of admission. Absent clear language in the legislation demonstrating the intent of the legislature to limit that freedom, it should stand.
That is even truer in this case. There are powerful reasons to limit the number of unvaccinated children in school. Lower rates of vaccination increase the risks of outbreaks, and unvaccinated children are themselves at higher risk of infection and can infect others (pdf).
The state delegates asking for this clarification repeated the point: “Allowing an unvaccinated student to come to school poses a very serious health risk to everyone else in the school building and their families as well,” stated Delegates Hettleman and Rosenberg. “We were glad to assist in making the case to Attorney General Brian Frosh that the existing policy should be reversed for private and parochial schools.”
Restricting the right of private schools or daycares to exclude unvaccinated children from those schools is not well based. The schools are acting to increase the safety of the children in their schools by maintaining these rules. Whenever the statute leaves room for such an interpretation, state authorities and courts should interpret it to allow the private institutions to protect the children they serve from disease. An institution that does so is acting responsibly.