School Business Affairs May 2019

40 MAY 2019 | SCHOOL BUSINESS AFFAIRS asbointl.org legal issues The controversy over required vaccinations continues to play out in courtrooms. Student Vaccinations: The Controversy Continues By Charles J. Russo, J.D., Ed.D. R ecent outbreaks of measles in sev- eral states—including an outbreak in Washington State that prompted the governor to declare a public health emergency—bring to light once again the controversy over vaccinations. Growing numbers of parents and anti-vaccine activists continue to initiate litigation, raising medical, religious, and philosophical objections over requirements that students receive inoculations before attending school. Despite the controversy, most children in the United States are vaccinated. For the 2017/18 school year, the most recent year for which data are available, vaccination coverage for kindergarteners was an esti- mated 95% for MMR (measles, mumps, and rubella ), DTaP (diphtheria, tetanus, and acellular pertussis), and varicella (chicken pox) (Mellerson et al. 2018). Yet outbreaks do happen—most often when a traveler contracts a virus in another country where measles, for example, is still common and brings it back to a commu- nity with a number of unvaccinated people. Measles spreads quickly and easily in public places, such as airports, shopping malls, and amusement parks. Historical Background of Vaccinations After Dr. Edward Jenner developed a small- pox vaccine in 1796, health officials in Europe introduced the use of inoculations to lower disease rates (Hodge and Gostin 2001/2). Shortly thereafter, officials in the United States adopted immunization as a generally safe and cost-effective tool to pro- tect public health. In 1827, Boston became the first American city to require children to be vaccinated before they could attend pub- lic schools (Hodge and Gostin 2001/2). State vaccination laws—which are designed to reduce or eliminate the risk of infection from the most common communi- cable diseases—typically grant exemptions to students with medical concerns. Also, most jurisdictions allow exemptions for reli- gious and philosophical beliefs. As reviewed in the next section, disputes over vaccinations have generated a fair amount of litigation as parents challenge vaccination laws as violations of their con- stitutional rights of freedom from govern- ment interference or freedom of religion. Litigation over Vaccinations The Pennsylvania Supreme Court addressed mandatory vaccinations for students in 1894 in Duffield v. School District of Wil- liamsport . The court reasoned that even without express legislation granting them the ability to do so, education officials could exclude children from school if they were not vaccinated against infectious diseases because inoculations were designed to pro- tect the public welfare. Ten years later, New York’s highest court affirmed the authority of educators to exclude a student who was not vaccinated against smallpox for essentially the same reasons ( Viemester v. White 1904). While conceding the importance of indi- vidual rights to liberty under the Fourteenth Amendment, in 1905, the Supreme Court upheld the constitutionality of a statute authorizing local officials to require uni- versal vaccinations ( Jacobson v. Common- wealth of Massachusetts 1905), finding that community leaders have the right to protect themselves against diseases that might chal- lenge the general welfare. Seventeen years later, the Supreme Court rejected a challenge from parents in Texas who claimed that requiring them to have

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