While drafting its new policy, The Children’s House consulted Frederick Bimber, an attorney in the area. He explained that while private schools typically have more leeway in implementing regulations, there is considerable legal precedent for states to set immunization requirements for public schools, too. In 1905, in a case that’s still cited to this day, Jacobson v. Massachusetts, the U.S. Supreme Court held that states have the legal authority to mandate vaccinations for all residents. And in 1922, the court reinforced the government’s ability to require vaccinations as a condition of school attendance. By 1970, most states had enacted policies allowing parents to not vaccinate their kids on religious grounds, according to Leslie Meltzer Henry, a law professor at the University of Maryland and faculty member at the Johns Hopkins Berman Institute of Bioethics. But to qualify for these exemptions, families had to demonstrate that vaccinations violate the teachings of a recognized religion to which they belonged. In some cases, state health boards asked parents to get notes from a clergyman. And over the years, a number of courts found these policies unconstitutional under the First Amendment because they required the government to determine whether a person’s religious beliefs are valid—an act that entangles the state with religion. In an effort to avoid these problems, Henry said, 19 states either replaced or expanded their existing religious exemptions with broader personal-belief ones, which turned out to be a double-edged sword.
On the one hand, these personal exemptions are a sign of progress in that they treat religion as only one of a variety of individual belief systems that influence people’s medical choices, for themselves and their children. On the other hand, as Henry explained, strong evidence reveals the grim public-health reality of these exemptions: States that allow people to opt-out for personal beliefs have lower childhood-vaccination rates and significantly higher incidences of infectious diseases compared with states that don’t. According to a 2006 report in the Journal of the American Medical Association, Vermont, for example, has a relatively liberal personal-exemption policy and experienced a higher incidence of pertussis between 1986 and 2004. Nebraska, in contrast, didn’t allow personal exemptions and had a significantly lower number of Pertussis cases in the same time frame.
Further complicating matters, case law allows schools to exclude unvaccinated students, even those with religious exemptions, during periods of infectious disease outbreak, according to Bimber. But school administrators don’t always agree with that premise, as was recently the case one San Francisco-area school district. The issue arose when Carl Krawitt, who lives in Marin County—a community with one of the highest personal exemption rates in the state—emailed the district’s superintendent late last month amid the ongoing measles scare requesting that students who lack vaccinations for non-medical reasons be barred from his son’s elementary school. Krawitt’s 6-year-old son, Rhett, has been fighting leukemia for the past four and a half years. While the little boy’s cancer is in remission, his immune system is still too compromised for vaccinations—a particularly difficult circumstance given that around 7 percent of the families with students at his Bay Area elementary school reportedly opt their kids out of immunizations. Matt Willis, the county health officer, denied Krawitt’s request, citing the balance between controlling communicable disease and maintaining "everybody’s right to freedom." Although Krawitt was unsuccessful in his endeavor, his decision to appeal the policy through the education system exemplifies the degree to which schools are emerging as key players in the vaccine debate—and how they, unlike statutory reform, have the opportunity to take swift, decisive action when there is an outbreak. It took The Children’s House, for example, only four months to develop a new admissions policy in the face of surprising statistics. Getting rid of personal-exemption policies, state by state, could take years, if not decades. (Just this week, California lawmakers introduced a bill that would tighten up its exemption policy, making it more difficult for parents to opt their kids out of vaccinations for personal reasons.)