Empty classroom.

Can Schools Require the COVID-19 Vaccine? Education, Equity, and the Courts

By Emily Caputo and Blake N. Shultz

As school systems consider policy options for the spring semester, both vaccination requirements and proposals to address inequities in access to education may be top of mind. However, policymakers should be aware of the possible legal challenges they may face.

The COVID-19 pandemic has created an educational crisis in the United States by disrupting the learning of millions of students across the country. School closures, remote learning, and generalized societal stress have all raised serious concerns about persistent harm to adolescent learning and development — particularly among low-income and minority students.

While the pandemic has exposed widespread inequities in educational opportunity, it has also revealed the relative inability of the courts to promote access to education. A recent California lawsuit illustrates the manner in which students must rely on state-level, rather than federal, protections to ensure equal access to education. And COVID-19 vaccination requirements, which could facilitate a return to in-person education, are likely to result in lawsuits, and may be struck down by a skeptical and conservative Supreme Court.

Vaccine requirements for school children are common, and many scholars believe that their underlying legal authority is near-unquestionable under the century-old precedent established by the Supreme Court in Jacobson v. Massachusetts. In Jacobson, the Court upheld a city ordinance requiring that all adults be vaccinated against smallpox, subject to a $5 fine. The ordinance was justified based on state “police powers,” which grant the authority to enact reasonable regulations necessary to protect the public health. Jacobson has since been cited widely in support of various public health regulations and a broad scope of state public health power. However, opinions in lawsuits related to COVID-19 suggest that Jacobson’s protections are under threat.

Supreme Court Justice Neil Gorsuch expressed extreme skepticism about historical interpretations of Jacobson in Roman Catholic Diocese of Brooklyn v. Cuomo, a case in which the Court enjoined Governor Cuomo from enforcing regulations limiting the number of individuals who can gather in a place of worship. In his concurrence, Gorsuch emphasized that Jacobson “hardly supports cutting the Constitution loose during a pandemic” and asked “Why have some mistaken this Court’s modest decision in Jacobson for a towering authority…?” Although the current Supreme Court, with its conservative majority, has not yet heard a case involving a mandatory vaccination law, recent scholarship suggests that a skeptical court could strike down some mandates as unconstitutional.

Analyses of Jacobson’s legacy suggest that its subsequent use has unconstitutionally eroded and even superseded its limitations on state police power. Although policymakers would likely use it as a justification, some believe the case could not be used to support a blanket childhood vaccination requirement, such as one without non-medical exemptions like those for religious beliefs. It is also possible a skeptical Court would strike down any back-to-school vaccine requirement as not “narrowly tailored” or not “reasonably necessary.”

Lawsuits against vaccination requirements are almost inevitable given widespread public distrust of COVID-19 vaccines. Roughly 40% of Americans recently reported that they were not willing to get a COVID-19 vaccine. Any legislation mandating COVID-19 vaccination for students is therefore likely to be challenged, and must be carefully drafted. Such a requirement should be narrowly tailored toward groups with a high risk of transmission — such as college students — and should allow for religious and medical exemptions, to reduce the chance of being struck down.

Moreover, the vaccine currently is not approved for use in children under the age of 16. Even if the vaccine is authorized later for use in younger children, the process of vaccinating them will take some time (lawsuits notwithstanding), especially if the current pace of the vaccine roll-out is any indication.

Yet protections for students marginalized by the transition to at-home learning are, again, weaker than one might expect. A recent California lawsuit illuminates the myriad issues students may face in seeking to secure an adequate virtual education while awaiting the vaccine.

Fifteen student plaintiffs, joined by two NGOs, filed a complaint in California Superior Court alleging that the state has failed to meet California’s constitutional standards for equal education during the COVID-19 pandemic. The students seek injunctive relief — a court order requiring California to meet the educational standards its legislature set for the 2020-2021 academic year. These standards include minimum instruction times, proper equipment, and, according to plaintiffs, adequate training for families as they make the transition from parent to teacher. In essence, the suit alleges that California has failed its students of color and impoverished students, who have been left disconnected from their peers and teachers.

But the fundamental right alleged in this lawsuit — “equal access to a public education system” — is not universally protected across states. According to the 1973 Supreme Court decision San Antonio Independent School District v. Rodriguez, Americans do not have a federally protected right to an education under the U.S. Constitution.

Instead, it is the states who safeguard our country’s future, with each individual state left to decide its own parameters for educating America’s youth. For instance, California’s constitution establishes a “system of common schools,” and case law has recognized each young Californian’s right to an education. But a report by the Federal Reserve Bank of Minneapolis suggests that only seven state constitutions contain explicit language protecting students’ equal rights (though additional protections may exist in state judicial precedent, as in California). This variation has resulted in a patchwork of student rights across states. Even if the California plaintiffs succeed in securing an equal education for themselves, their efforts will not serve as a lifeline for similarly situated students across the country.

Some may worry that cash-strapped public school systems, already facing declining enrollment, may not be able to afford to provide students with technology and parents with training. Declining tax revenues and balanced budget requirements are expected to result in unforgivingly low education budgets, which raises concerns. However, some precedent exists to suggest that courts may be able to order states to find the money needed to fulfill their legal obligations. For instance, a federal court famously held in Holt v. Sarver that Arkansas had to reform its unconstitutionally “cruel and unusual” prison system at substantial cost, despite budget shortfalls.

Still, there are larger questions of democratic legitimacy implicated by allowing judges to interfere in budgetary decisions traditionally made by elected legislatures. And while such a controversial decision would make it possible for the California plaintiffs to see improvements to their pandemic education, countless students in states with less comprehensive education protections would remain unable to seek refuge.

Given the potential legal challenges policymakers may face, it is critical that legislation to remedy the COVID-19 educational crisis be carefully drafted. Designing vaccination requirements to be narrowly tailored and allowing for religious and medical exemptions may create policies that are robust enough to survive potential lawsuits. Schools should also continue their efforts to assist marginalized students with securing access to wireless internet and needed technology. Nonetheless, given federal constitutional shortcomings, it may be up to state legislatures to design more proactive policies to ensure America’s students receive equitable and adequate instruction. Otherwise, courts may be as likely to strike down efforts to safely return students to school or to improve on virtual education as they are to uphold them.


Emily Caputo is a 2nd year student at Yale Law School and a fellow at the Solomon Center for Health Law and Policy.

Blake Shultz is an MD/JD candidate at Yale Law School and Yale School of Medicine, as well as a fellow at the Solomon Center for Health Law and Policy.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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