Vaccine Requirements for Kids 5 and Over Are Coming to Schools. But Will They Hold Up Legally?

Photo: Mike Kai Chen for the NYT

This morning, Pfizer and BioNTech announced that their mRNA vaccine for the Covid-19 virus is safe and effective for children aged 5-11, opening the door for what likely will be an Emergency Use Authorization (EUA) decision from the FDA later this fall so that kids in grades K-6 can get vaccinated. This will come as huge relief for the majority of parents who are eager to protect their families from the virus, but it is already being met with fierce resistance from anti-vaccination parents across social media, who already are vowing never to allow their kids to be injected with the vaccine.

Putting aside the scientific arguments and the political nature of the question, a very real legal question will now be front and center: Can a public school mandate a vaccine after it has received Emergency Use Authorization from the government but before it is fully FDA approved? The short answer, unsurprisingly, is “that depends.”

In some states, such as Ohio, educational institutions such as public universities were forbidden under state law to impose a vaccine mandate under only an EUA. Vaccination advocate could argue that the distinction of EUA versus full FDA approval is not a legally sustainable one; after all, vaccine mandates have been upheld for more than a century under controlling Supreme Court caselaw. And an appellate case involving the University of Indiana recently had upheld the mandate there despite no official approval by the FDA. “Each university may decide what is necessary to keep other students safe in a congregate setting,” Judge Frank H. Easterbrook of the appeals court wrote. “Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza and more) are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at a university close contact is inevitable.” The Supreme Court declined to hear the case without comment.

But practically speaking, once some states imposed the FDA approval hurdle, it made little sense for schools and universities to sue to get past it, as the cases would have unlikely been resolved by the time the FDA wound up fully approving the vaccine. That approval for persons 12 and over wound up occurring around the time the fall semester was set to begin. Rylie Martin, the assistant director of the College Crisis Initiative in North Carolina, cited FDA approval as a "game changer" for universities. "FDA approval is kind of the thing that's going to get them across the finish line to get their student vaccination rates up," Martin told NPR. Once that approval came, many schools and employers moved in tandem, making it less likely that any one of them would draw the anti-vaxxers’ ire and lawsuits.

But no such full FDA approval is likely to come for kids aged 5-11 for some time, leaving the question again to the states to decide whether to forbid mandates under the likely EUA to come. Schools, like many employers, may sidestep the issue somewhat by permitting a testing option in lieu of the vaccine mandate, especially as certain parents seek to claim “religious exemption” for their children—meaning that they can refuse the vaccine based on the parents’ “sincerely held religious beliefs.” But schools or employers can make a reasonable accommodation, such as frequent testing, to satisfy their legal obligations to the objectors. Thus, rather than get tied up in litigation over individual cases, schools could simply elect to provide a testing option. While imperfect, recent studies have shown, at least in the context of air travel, that a 72-hour testing requirement prior to boarding a flight resulted in only one Covid-infected passenger out of 10,000 actually boarding a flight.

The good news for parents who sensibly vaccinate their children against the coronavirus is that the likelihood that they become gravely ill or die drops to levels akin to other random dangers of daily life, such as flus, accidents or even shootings. Life can return in many ways to normal for such families. Indeed, in San Francisco school districts for kids aged 12 and over where 90 percent of the students are vaccinated, there have been no outbreaks of Covid-19 since the fall semester began. 

The danger of course lies with those parents who, for political, religious, or misinformed “scientific” reasons, refuse to vaccinate their young children, despite vaccine requirements for other diseases having been a commonplace part of American education for decades. Vaccine compliance among other children, somewhat ironically, will help keep the kids of anti-vaxxers safer by driving down the prevalence of the virus in schools, but it can’t ultimately protect them against a highly contagious variant such as delta. 

That said, we can expect legal challenges to vaccine mandates in grade schools to spring up immediately. As with the universities, full FDA approval may come for grades K-6 long before a case winds its way to the Supreme Court which, given the current Court’s deference to religious exemptions, would be a welcome development.