School vaccine mandates do not illegally discriminate – Prof. Dorit Reiss

Anti-vaccine activists have repeatedly claimed that statutes abolishing non-medical exemptions from school vaccine mandates are discriminatory. Some went as far as to compare it to segregation. Courts in California and New York, echoing years of jurisprudence, rejected these claims in recent years in no uncertain claims, making it clear that school mandates are not discriminatory.

Requiring vaccination before a child can attend school is not discrimination

School vaccine mandates – with or without exemptions – certainly treat families whose children do not get the required vaccines (or, when applicable, show immunity in other ways) differently than others. It’s a distinction. That doesn’t make it discrimination.

Most, if not all laws, draw distinctions. Government benefits programs distinguish between qualified applicants who meet the requirements and those that do not. Criminal law distinguishes between those who fulfill the elements of a crime and those that do not, and impose sanctions on the former, but not the latter.

Laws draw lines. That’s what most of them do. And not every line drawing is discrimination.

Discrimination is drawing arbitrary lines – treating cases that are similar to the relevant points differently. For example, one’s race is not relevant to someone’s ability to vote or attend school and using that classification to decide who can get those things serves no legitimate interest.

But other distinctions are relevant and appropriate. For example, to get a medical license in California, one has to meet educational requirements, including medical school and post-graduate education.  Other states have similar requirements.

Does that discriminate against those who do not meet the requirements? Of course not. They are treated differently because they are not similar to those who completed the requirements.

To use another example, only people who did not stop at a red light usually get a fine for not stopping at a red light. That, too, is not discrimination. People who stop at a red light are meaningfully different from people who did not for this purpose.

And you have to meet certain age requirements to legally drink or smoke in most or all states.

Discrimination and school vaccine mandates

Unvaccinated children are not similarly situated to children who are vaccinated. Because their parents did not vaccinate them, unvaccinated children are more likely, if exposed, to get and transmit preventable diseases. When they congregate, the risk of outbreak increases

Therefore, they are meaningfully different from children whose parents vaccinated.

While an unvaccinated child can suffer vaccine failure, the difference in risk is still meaningful. Vaccinating a child who then suffers vaccine failure can be compared to stepping on your brakes at a stop sign and failing to stop because of an unexpected mechanical failure: –it’s a blameless and highly unlikely incident of bad luck.

On the other hand, not vaccinating a child can be compared to not stomping on the brakes – you are knowingly (or negligently) taking on a risk of an accident. Similarly, you may get lucky and avoid disease, but you’re making a choice that creates a risk. The situations are not similar and do not need to be treated as similar.

In rejecting the equal protection in the first decision in California, Judge Dana Sabraw explained:

Here, none of the disputed classifications supports an equal protection claim. First, children with PBEs [children with personal belief exemptions – without all their vaccines. DR] are not similarly situated to children without PBEs. Nor are
children at “checkpoints” similarly situated to children not at “checkpoints.” And the 
same may be said of children with IEPs versus those without. In each of those 
categories, the children are not similarly situated, which dooms Plaintiffs’ equal 
protection claim.

School vaccine mandates vs discrimination

Further, distinguishing between vaccinated and unvaccinated children only requires having a rational basis – it is not a category subject to special scrutiny. There are several classifications courts offer special protection to – often because of historical experiences demonstrating animus and unfounded prejudice against these groups. Some categories to consider are race, alienage, religion, gender, and sexual orientation.

But a group whose sole unifying feature is a choice to engage in behavior that can impose risk on others has never been acknowledged as a protected category. And that is what the group of non-vaccinating parents are.

Though there may be disagreements on the proper role of government v. market, and of the federal government v. states, the potential of government having a role in regulating risk is not in debate. School vaccine mandates are based on the real risk that is the result of a choice – one that goes against expert opinion and that can harm others.

Schools have children close together, vulnerable to outbreaks, and protecting them from outbreaks is important. School mandates are not arbitrary and have a rational basis behind them.

I addressed this previously:

Behavior that imposes risks on others can and should be regulated. For example, the state can and does regulate one’s ability to drink and drive; while you are free to drink, the state can penalize you if you drive while under the influence, because that behavior creates a risk.[40] You have the right to refuse treatment for tuberculosis, but the state may quarantine you as a consequence of the infection risk you pose to others—even though no one contests the fact that freedom from restraint is a fundamental interest.

In this context, parents who choose not to vaccinate are more like those who choose to drink and drive than they are those who are members of an ethnic group. They have no more claim of discrimination than does the Association Against Discriminating on the Basis of Alcohol Consumption (ADOBAC).”

School vaccine mandates and religion

Finally, sometimes anti-vaccine activists claim that school vaccine mandates discriminate based on religion because they discriminate against those with religious objections to vaccines. The reality is that very few vaccine opponents are acting because of religion.  And courts have consistently rejected claims of religious freedom in this context. 

But more fundamental to this specific issue is the fact that a general law that does not target religions is not religious discrimination. School vaccine mandates require that children be vaccinated for school unless they have a valid exemption. If parents do not vaccinate, the penalty is that the child is kept out of school.

The treatment is the same whether the parents’ choice is because they were misled by anti-vaccine misinformation or if they have sincere religious opposition. There is no focus on religious reasons, and those with religious objections are not treated differently than those with others. It’s not religion-based discrimination.

If it helps, I explained this in a short video – without the references – here: 



This article 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 the social and legal policies of vaccination. 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 disease.

Dorit Rubinstein Reiss

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