Outside the Beltway

Federal Court Rules Unvaccinated Children Can Be Barred From Public Schools

A New York Federal Judge has ruled that unvaccinated children can be forced to stay home during outbreaks.

Doug Mataconis · Wednesday, June 25, 2014 · 14 comments

A Federal Judge in New York City has rejected a claim by three sets of parents that a New York City School Board policy that barred children who have not been properly vaccinated from attending public school was a violation of their religious liberty rights under the First Amendment:

In a case weighing the government’s ability to require vaccination against the individual right to refuse it, a federal judge has upheld a New York City policy that bars unimmunized children from public school when another student has a vaccine-preventable disease.

Citing a 109-year-old Supreme Court ruling that gives states broad power in public health matters, Judge William F. Kuntz II of Federal District Court in Brooklyn ruled against three families who claimed that their right to free exercise of religion was violated when their children were kept from school, sometimes for a month at a time, because of the city’s immunization policies.

The Supreme Court, Judge Kuntz wrote in his ruling, has “strongly suggested that religious objectors are not constitutionally exempt from vaccinations.”

The lawyer for the plaintiffs, Patricia Finn, said she plans to appeal the decision, announced this month. On Thursday, Ms. Finn asked the district court to rehear the case.

State law requires children to receive vaccinations before attending school, unless a parent can show religious reservations or a doctor can attest that vaccines will harm the child. Under state law, parents claiming religious exemptions do not have to prove their faith opposes vaccines, but they must provide a written explanation of a “genuine and sincere” religious objection, which school officials can accept or reject.

Some states also let parents claim a philosophical exemption, though New York does not. Some parents refuse to have their children vaccinated because of a belief that vaccines can cause autism, though no link has ever been proved.

Two of the families in the lawsuit who had received religious exemptions challenged the city’s policy on barring their children, saying it amounted to a violation of their First Amendment right to religious freedom and their 14th Amendment right to equal protection under the law, among other claims. Their children had been kept from school when other students had chickenpox, their suit said.

The third plaintiff, Dina Check, sued on somewhat different grounds, saying that the city had improperly denied her 7-year-old daughter a religious exemption. She said the city rejected her religious exemption after it had denied her a medical exemption, sowing doubts among administrators about the authenticity of her religious opposition. But Ms. Check said the request for a medical exemption had been mistakenly submitted by a school nurse without her consent.

After the school barred her daughter, Ms. Check home-schooled her and then moved her to a private school that accepted her daughter without the vaccinations. State vaccination requirements cover public and private schools, but in New York City, private schools have more autonomy in handling exemptions.

Ms. Check said she rejected vaccination after her daughter was “intoxicated” by a few shots during infancy, which she said caused an onslaught of food and milk allergies, rashes and infections. Combined with a religious revelation she had during the difficult pregnancy, she said, the experience turned her away from medicine. Now she uses holistic treatments.

“Disease is pestilence,” Ms. Check said, “and pestilence is from the devil. The devil is germs and disease, which is cancer and any of those things that can take you down. But if you trust in the Lord, these things cannot come near you.”

There’s one very important point that needs to be made clear at the outset. As the article quoted above notes at the beginning, the school policy does not bar children who are not vaccinated from attending school at all. Instead, it gives public health authorities the power to bar such children from school if there is an outbreak of a communicable disease that they have not received a vaccination for at the school they are attending. The logic behind this, of course, is that an unvaccinated child is both at greater risk on their own if they are in an area where people with a communicable disease are located, and that they are likely to become a carrier of the disease themselves in such situation thus making it easier for the virus to spread. This distinction is important because it arguably undercuts the claims of the parents that their rights outweigh the public health concerns at issue here, as I’ll discuss below.

Judge Kuntz based his opinion largely on a case decided by the U.S. Supreme Court in 1905 called Jacobson v. Massachusetts. In that case, a Swedish immigrant name Jacobson refused to comply with an order form the Town of Cambridge that required all adults to be vaccinated against smallpox during an outbreak of the disease. Jacobson claimed that he had been sickened by the smallpox vaccine that was in use at the time when he was a child, and that the vaccine had also made his son ill as well. It’s worth noting that the smallpox vaccine that was in use at the time did have some serious side effects, to a far greater extent that the vaccine that was used in later years before being discontinued after the smallpox virus was eradicated. Jacobson was fined and challenged his conviction in the state courts in Massachusetts, where he lost at both the trial and appellate levels in his argument that the mandatory vaccination policy violate his Constitutional Rights. In a 7-2 decision, the Court upheld Jacobson’s conviction in an opinion by Justice John Marshall Harlan that found broad public authority to act in the face of a public health emergency:

The authority of the state to enact this statute is to be [197 U.S. 11, 25] referred to what is commonly called the police power,-a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained frained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71; Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 470 , 24 S. L. ed. 527, 530; Boston Beer Co. v. Massachusetts, 97 U.S. 25 , 24 L. ed. 989;New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U.S. 650, 661 , 29 S. L. ed. 516, 520, 6 Sup. Ct. Rep. 252; Lawson v. Stecle, 152 U.S. 133 , 38 L. ed. 385, 14 Sup. Ct. Rep. 499. It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the general government of any power it possesses under the Constitution, or with any right which that instrument gives or secures. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. 23, 73; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247; Missouri, K. & T. R. Co. v. Haber, 169 U.S. 613, 626 , 42 S. L. ed. 878, 882, 18 Sup. Ct. Rep. 488.

We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as [197 U.S. 11, 26] interpreted by the state court. The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’ Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 471 , 24 S. L. ed. 527, 530; Missouri, K. & T. R. Co. v. Haber, 169 U.S. 613, 628 , 629 S., 42 L. ed. 878- 883, 18 Sup. Ct. Rep. 488; Thorpe v. Rutland & B. R. Co. 27 Vt. 148, 62 Am. Dec. 625. In Crowley v. Christensen, 137 U.S. 86, 89 , 34 S. L. ed. 620, 621, 11 Sup. Ct. Rep. 13, we said: ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty [197 U.S. 11, 27] itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’ In the Constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good,’ and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.’ The good and welfare of the commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Com. v. Alger, 7 Cush.

Applying these principles to the present case, it is to be observed that the legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the board of health, that was necessary for the public health or the public safety. The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual, nor an unreasonable or arbitrary, requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was [197 U.S. 11, 28] the situation,-and nothing is asserted or appears in the record to the contrary,-if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U.S. 287, 301 , 45 S. L. ed. 194, 201, 21 Sup. Ct. Rep. 115; 1 Dill. Mun. Corp. 4th ed. 319-325, and authorities in notes; Freurid, Police Power, 63 et seq. In Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465 , 471-473, 24 L. ed. 527, 530, 531, this court recognized the right of a state to pass sanitary laws, laws for the protection of life, liberty, health, or property within its limits, laws to prevent persons and animals suffering under contagious or infectious diseases, or convicts, from coming within its borders. But, as the laws there involved went beyond the necessity of the case, and, under the guise of exerting a police power, invaded the domain of Federal authority, and violated rights secured by the Constitution, this court deemed it to be its duty to hold such laws invalid. If the mode adopted by the commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some,-if nothing more could be reasonably [197 U.S. 11, 29] affirmed of the statute in question,-the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.

(…)

Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the state to that end has no real or substantial relation to the protection of the public health and the public safety. Such an assertion would not be consistent with the experience of this and other countries whose authorities have dealt with the disease of smallpox. And the principle of vaccination as a means to [197 U.S. 11, 32] prevent the spread of smallpox has been enforced in many states by statutes making the vaccination of children a condition of their right to enter or remain in public schools.

(…)

Since, then, vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was-perhaps, or possibly-not the best either for children or adults.

Fifteen years after Jacobson, in a case that seems to be almost completely on point with the issues in this case,  the Court ruled in Zucht v. King that an ordinance of the City of San Antonio requiring all students attending public schools to be vaccinated against communicable disease to be Constitutional:

The validity of the ordinances under the federal Constitution was drawn in question by objections properly taken below. A city ordinance is a law of the state within the meaning of § 237 of the Judicial Code, as amended, which provides a review by writ of error where the validity of a law is sustained by the highest court of the state in which a decision in the suit could be had. Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 232 U. S. 555. But, although the validity of a law was formally drawn in question, it is our duty to decline jurisdiction whenever it appears that the constitutional question presented is not, and was not at the time of granting the writ, substantial in character.Sugarman v. United States, 249 U. S. 182, 249 U. S. 184. Long before this suit was instituted, Jacobson v. Massachusetts, 197 U. S. 11, had settled that it is within the police power of a state to provide for compulsory vaccination. That case and others had also settled that a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative. Laurel Hill Cemetery v. San Francisco, 216 U. S. 358. And still others had settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law. Lieberman v. Van de Carr, 199 U. S. 552. A long line of decisions by this Court had also settled

that, in the exercise of the police power, reasonable classification may be freely applied, and that regulation is not violative of the equal protection clause merely because it is not all-embracing. Adams v. Milwaukee, 228 U. S. 572; Miller v. Wilson, 236 U. S. 373,236 U. S. 384. In view of these decisions, we find in the record no question as to the validity of the ordinance sufficiently substantial to support the writ of error. Unlike Yick Wo v. Hopkins, 118 U. S. 356, these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.

There has long been a tension between individual rights and the authority of a state or local authority to protect public health, and those issues started becoming more apparent when people started living close together in large cities, thus making the spread of communicable disease easier, and vaccination started to become a more accurate and less dangerous procedure. At its core, the argument has always been one between where an individual’s right to control their own body, and a parent’s right to determine what is best for the children, ends and the authority of a state or locality to take steps to protect public health begins. History is filled with notable examples of this conflict, such as a the case of Typhoid Mary and, for the most part, the Courts have generally come down on the side of protecting public health, and that is the side that Judge Kuntz comes down upon in this case.

As a matter of law, it seems clear that Judge Kuntz was correct here. Jacobson and Zucht may be old cases, and in the case of Jacobson based on a different set of facts than the one at issue in this case, but they are still good law. Moreover, the argument that there is some generalized right to avoid vaccinations in the face of a real public health concern in the Constitution doesn’t seem to hold water at all. Long before the Constitution and the 14th Amendment were adopted, local governments were recognized to have the authority to take steps necessary to protect the public in an epidemic situation. It’s simply not credible to believe that the drafters of the Constitution or the 14th Amendment intended to take that authority away from government. The question that Courts have to deal with is what limits there are on that authority. An additional factor at work in this case can be found in the fact that 48 states presently allow some form of an exemption from mandatory vaccinations on religious grounds. Judge Kuntz essentially rejected the argument that there is any religious basis at all to refuse vaccination, and that holding alone is very likely to be appealed. However, the fact that the most that can happen here is that children will be asked to stay home when there is a disease outbreak at school, it strikes me that this is a very de minimisresponse that falls far short of banning them from school entirely. If that were the sanction at issue, then I think you could make an argument that the law is unconstitutional because there are obviously less intrusive ways to protect public health than completely banning the child from school.

Beyond the law itself, it seems axiomatic that while parents do have the right to decline to follow the vaccination schedule for their children, or to decline to have them vaccinated at all for either religious reasons or because they have become convinced of mostly flawed arguments that the vaccines pose a risk to their children, they do not have a right to expose others to the danger of being infected with a communicable disease. If you want to send your children to public schools, it doesn’t seem to be at all unreasonable to require that those children be up to date on their vaccines unless there is a valid reason to the contrary. Indeed, even a parent’s authority to make medical decisions for their child is limited by the fact that courts can and do take action in situations where a parent is acting or refusing to act in a manner that puts a child’s health in immediate danger. At the very least, the sanction of having to keep the child home from school when their unvaccinated status could pose a risk to others seems to me to be an entirely reasonable response under the circumstances.  As for vaccination itself,  the fact that we are presently seeing record levels of diseases such as Measles and Whopping Cough that can be directly attributed to parents not vaccinating their children is arguably sufficient justification on its own for those requirements. In the end, though, what we are talking about here isn’t a mandatory vaccination law like the one at issue in Jacobson and it is far less stringent than the absolute bar to admission at issue in Zucht. If the laws in those cases are valid under the 14th Amendment, then certainly the rule in this case should be as well. The New York City policy is, at its heart, a regulation designed to protect the health of children attending public school. As a general rule, and so long as the law in question makes appropriate provisions for exemptions on medical or religious grounds,  I really don’t see what can possibly be objectionable about that.