As measles outbreaks – centered on unvaccinated children – continue to pop up in areas with low vaccine rates, one approach private schools and daycares reach to is keeping out unvaccinated children. An Ohio Jewish school announced it will not accept unvaccinated children, and I know other private facilities are considering this. So what does this all mean with respect to vaccine exemptions within private schools?
Note that this is a separate issue than the question of whether unvaccinated children can be kept home during an outbreak. All states have a provision in law to keep unvaccinated children at home during an outbreak, and some of the affected states – like New York – are doing that.
The question here is whether private schools and daycare can legally refuse to accept unvaccinated children at all, even if those children have valid vaccine exemptions under the state law.
The answer is, as often with the law, maybe.
This is not a new question. I have had questions on this come up since I became interested in vaccines and the law, including in California, before the days of SB277.
What makes this complicated is that it depends on a number of legal sources. The first, and potentially most important, is the state’s vaccine exemptions law. State exemptions law often don’t say explicitly “private daycare may exclude unvaccinated children” or “private daycares have to accept unvaccinated children.” But they are relevant. They may not apply to private facilities at all (though almost all state laws do). If the state school immunization law does not explicitly cover private schools and/or daycares, these facilities may have the freedom to choose – they can accept unvaccinated children, even on more lenient terms than public schools can – or they can exclude them.
If the state law, on the other hand, has clear language about vaccine exemptions saying, for example, that children who qualify “shall be admitted” or, after requiring immunizations, say that a child “shall not be excluded” if there is an exemption, private institutions may have to, usually, accept exempt students. For example, Florida courts clearly think that’s the case for non-religious private schools in Florida (or religious ones, see below).
That is not, however, the end of the discussion.
In the background is the reality that private institutions can choose who to accept or reject, barring specific legal requirements. That means that if the law is ambiguous on this, the private institution has the freedom to decide.
Whether the law is ambiguous is a question of legal interpretation, and the language will not always be the end of the matter – there may be elements in the legal history that suggest there was no intent to force private schools to accept unvaccinated children if they do not want them. Or the interpreting authorities can read the purpose of the statute does not support limiting the ability of private institutions to exclude unvaccinated children. After all, school vaccine mandates are in place to protect the public health, and private institutions requiring vaccines before attendance are helping that goal. That would be a reason to find, if at all possible, that schools and daycares have the authority to refuse admittance to unvaccinated children – even if the state’s law permits exemptions.
In 2015, Maryland’s Attorney General interpreted the state’s exemption law to allow private institutions to reject unvaccinated children, even if these children’s families filed a religious exemption, which is allowed under Maryland’s law.
Finally, the question of religion complicates things. On one hand, people objecting to vaccines on religious grounds (few as they are) may turn to the Civil Right Act of 1964, which does apply to private educational institutions, and claim excluding their exempt, unvaccinated children violates that, as well as (if they can claim it) violating the state’s law. However, that argument is tricky, since the rejection of unvaccinated children is not usually on religious grounds, and non-religious institutions should make that clear. Generally speaking, it is permissible to enforce laws that are not based on religious grounds on everyone. The focus is, again, on whether state law allows excluding unvaccinated children – and that depends, as set out above.
Religious institutions, however, may choose to exclude unvaccinated children based on religious grounds, as well. And there, freedom of religion would work the other way: the institution’s freedom of religion may protect the institution’s freedom to exclude unvaccinated children on religious grounds even when state law would not, otherwise, allow private daycares or schools to exclude such children. That’s exactly what happened in Florida: a Catholic school wanted to exclude unvaccinated children. A Catholic, anti-vaccine father sued. The court rejected it based on the religious freedom of the diocese to make religious rulings for its schools.
If in doubt, private institutions can and should reach out and ask for an authoritative interpretation of vaccine exemptions rules, either from the implementing authority, like the state’s Department of Health, or the state’s Attorney General. Generally, interpretations by such institutions get some level of deference in the courts of law, and that can help an institution be confident in their choices. If an authority says a school cannot exclude unvaccinated children, it is completely fair to ask for the explicit law or rule that prevents that. Knowing the legal source can help change it.
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.
