The “Police Powers” of Governments versus the Rights of Individual Citizens: Required COVID Testing and Required Vaccinations

New York City elementary schools will be reopening Monday (December 7th), a phased re-opening beginning with pre-k and kindergarten, moving up to students in District 75 (schools for moderately/severely handicapped children) and the remaining elementary grades, a caveat, the parent must have signed a COVID testing consent form (Read here)

In order for your child to return to in-person learning, you must submit the consent form for in-school COVID-19 testing by the first day your child returns to their school building 

The New York Post reports, a group of parents opposing barring students from school whose parents refuse to sign and submit COVID testing consent form threaten lawsuits,

“The decision by the Mayor and the DOE to force parents to consent to have their school age children tested for the Covid Virus as a condition of attending school is outrageous, immoral and a violation of their constitutional rights,” read a statement from a group called Parents Opposed to Mandatory Testing.

The group is planning to ask the Eastern District of the Federal Court to halt the consent form requirement.

The next question is whether government can require COVID vaccinations.  At the front of the line are nursing home residents,

A state official said the first batches should be enough to cover all nursing home residents and staff across the state, though Cuomo said he expects some people at those facilities will opt not to be vaccinated. He added he won’t mandate it, either. Instead, he hopes a state public education campaign convinces skeptics that the vaccine can save lives.

David Kirkland, the Director of the NYU Metropolitan Center for Research on Equity and the Transformation of Schools is planning a major campaign to encourage vaccinations.

We are planning a campaign as part of our health awareness initiative to education BIPOC communities on the vaccine. The initiative is titled, “United We Heal.” Stayed tuned. It’s going to be important work.

If large percentages of folks are vaccinated herd immunity may protect the citizenry; however,

Experts do not know what percentage of people would need to get vaccinated to achieve herd immunity to COVID-19. Herd immunity is a term used to describe when enough people have protection—either from previous infection or vaccination—that it is unlikely a virus or bacteria can spread and cause disease.

Unfortunately the general public is not wholly committed to COVID vaccinations.

Only about half of Americans said they would try to get a Covid-19 vaccine once one is available, according to a new CNN Poll conducted by SSRS, and that percentage appears to have dropped since May.

Some argue that the combination of COVID survivors and the vaccinated will create herd immunity. While experts differ Dr Fauci suggests around 80% of the population must be vaccinated or have anti-bodies for herd immunity to be in effect; however, the percent is disputed (Read discussion here)

The consent form requirement issue leads into the larger question: can COVID vaccination be a requirement to attend school?

Vaccination requirements for schools rests with the states, the federal government can recommend, urge, cajole; it’s highly unlikely, it can mandate COVID vaccinations.

All states require vaccinations for students, although the regulations vary and many states allow “religious and/or philosophical exemptions.”  (See New York State Department of Health vaccination requirements here)

In order to attend or remain in school or day care, children who are unvaccinated or overdue must receive at least the first dose of all required vaccines within the first 14 days. They also must plan to receive all follow-up doses at the ages and intervals (time between doses) listed in the recommended vaccination schedule.

Vaccines required for day care, pre-K, and school attendance
  • Diphtheria and Tetanus toxoid-containing vaccine and Pertussis vaccine (DTaP or Tdap, Hepatitis B vaccine,  Measles, Mumps and Rubella vaccine (MMR),  Polio vaccine, Varicella (Chickenpox) vaccine

There is vigorous resistance to requiring vaccinations for school age children. The anti-vaccination movement (“antivaxxers”) assaulted the State Education Department a year ago, pushing past guards, racing through the building, unfurling banners, pounding on doors, all in vain, the vaccination regulations are issued by the Department of Heath, not the Board of Regents or the Department of Education.

The question of requiring vaccinations is not new, if fact, the question was litigated before the Supreme Court,

In Jacobson v Massachusetts  (1905) SCOTUS affirmed the right of a city to require a smallpox vaccination in the midst of an epidemic, the penalty was a fine. The Court supported the City of Cambridge decision, affirming the concept of following the authority of local health authorities.

 To invest such a body [Board of Health] with authority over such matters [vaccinations] 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.  …  if we are to attach any value whatever to the knowledge which, it is safe to affirm, is 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.

Jacobson v Massachusetts has been mentioned in over 60 SCOTUS decisions since 1905. The “police powers” of the government to protect the health and safety of the nation has been firmly embedded for over 100 years.

Last week the Supreme Court, ignored a century of case law and overturned Governor Cuomo’s restrictions on the number of attendees at religious services citing the First Amendment,

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

Justice Sotomayor dissented,

“Epidemiologists and physicians generally agree that religious services are among the riskiest activities”). Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.

Would the Court choose to intervene in the question of mandatory vaccinations? 

Would a mandatory vaccination regulation violate the Fourteenth Amendment?

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Let me not get too far down the road, I believe the question of the COVID test consent form does not cause “irreparable harm,” students are currently learning remotely and could continue until the litigation is resolved.  The question of whether a COVID vaccination is required for September, 2021 is many months away, if it ever arises.

2 responses to “The “Police Powers” of Governments versus the Rights of Individual Citizens: Required COVID Testing and Required Vaccinations

  1. Great job Peter. I think the important question will be, “who can’t get vaccinated?” There will likely be those who due to medical conditions cannot get the vaccine and others for whom it will not be effective, for medical reasons.
    Is there an obligation for the rest of us to protect them? We do not have the right to eat peanuts near those with severe allergies, for example We shall see..


  2. Pingback: September 21 School Opening and Unanswered Questions: Requiring Vaccinations, Remote Instruction, Teacher Accommodations, Summer School and “Catching Up” | Ed In The Apple

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