California school districts can't independently impose COVID vax mandates on students: appeals court

California's 1,000-plus school districts cannot individually impose COVID-19 vaccine mandates, even if limited to extracurricular activities, an appeals court ruled in a decision that could provoke a battle between lawmakers and parents statewide.

It's all-or-nothing when it comes to school vaccine mandates under 132-year-old precedent, the Court of Appeal for the Fourth Appellate District ruled. That California Supreme Court ruling concerned smallpox, a far deadlier disease for children whose routine immunization ended in 1972.

The judges mocked the San Diego Unified School District's argument that it didn't actually impose a mandate, just gave students "the choice to either [get vaccinated] or be enrolled in independent study" remotely.

This is like a school cafeteria "offering a choice between Brussels sprouts or broccoli," the ruling says: "We doubt that students and their parents perceive a real choice" between in-person learning and independent study, which is "likely ... a step backwards" for some students.

The only avenue for mandates under this week's ruling is through the school vaccination schedule, controlled by the Democrat-dominated Legislature and newly reelected Democratic Gov. Gavin Newsom.

State-by-state battles were teed up in October when the CDC added COVID vaccines, including boosters, to the immunization schedule. Several GOP governors and centrist Democratic Colorado Gov. Jared Polis quickly pledged their own schedules weren't changing.

California's "primary series completion" COVID vaccination rate, excluding boosters, plateaued across age groups this spring. Among minors it's highest for 12-17 at 67%, followed by 5-11 at 38%. It's just 6% for children under 5, which likely includes preschoolers.

The rates are markedly lower for children who are Latino or black: 53-55% for 12-17, 24-27% for 5-11 and 2% for under 5. California is 40% Latino or Hispanic of any race, according to July 2021 U.S. Census Bureau estimates.

Anti-mandate group Let Them Choose and an unidentified parent on behalf of their child separately sued San Diego Unified to block a September 2021 "Vaccination Roadmap." It requires students 16 and up to receive COVID vaccines as a condition of in-person class attendance and extracurriculars such as sports. 

The roadmap recognized medical but not religious or personal-belief exemptions, and unexempted students were "involuntarily placed on independent study," the ruling says. A trial court consolidated the suits and agreed with the plaintiffs, saying "a local school district simply doesn't have the authority to do something inconsistent with the statewide standard."

The appellate judges weren't impressed by the district's belated ploy to get out of litigation. It told the court in June that it has "delayed implementing" the mandate until at least July 2023, and asserted for "the first time at oral argument" this month that the case is rendered moot by either this delay or the 2023 graduation of the unidentified student.

"The District could have raised this issue at least five months ago," but even "putting aside forfeiture ... merely postponing (as distinguished from cancelling) the vaccination mandate does not impact this court's ability to render effective relief," the ruling says in footnotes. Even then the court would rule because these are "issues of broad public interest that are likely to recur."

Ten diseases were added to the school vaccination schedule "through legislative action, after careful consideration of the public health risks of these diseases, cost to the state and health system, communicability, and rates of transmission," the ruling says, citing its 2018 ruling upholding the Legislature's 2015 removal of the personal-belief exemption.

In a July 2021 analysis of the average kindergarten vaccination rate 2000-2015 for MMR and DTP, University of California Berkeley researchers found that California regions with rates under 92% — considered low under "estimated herd immunity thresholds" — were concentrated in the north of the state.

But the number of counties below 92% nearly tripled between 2008 and 2015, reaching 58, and their rates were lower in 2015 than 2000. From 2000 through 2013, the average rate across California fell 2 percentage points, they found.

It was against this backdrop that the Legislature removed the personal-belief exemption, and a bill analysis explicitly said the revision applies statewide, not district by district, the court noted. Health officers told legislative staff "a statewide policy provides them the tools to protect all children equally from an outbreak."

While the court concedes the state regulation implementing required school vaccinations is "phrased somewhat awkwardly," the reference to "any other disease deemed appropriate" to mandate is not a slam dunk for the San Diego school district.

The "comprehensive state procedure to determine" compulsory vaccinations implies that students who comply with state requirements can attend school in person, with no additional district mandates, the ruling says.

The regulation does much more than "merely" establish minimum vaccination requirements, "creating a process by which new immunizations can be added to the statutory list without further legislative action." That constitutes a "directive" for statewide criteria, and the state regulator agrees, the court said.

Even if the Department of Public Health added COVID to the school vaccination schedule, the regulation provides for personal-belief exemptions, a footnote reads. Because the roadmap lacks this exemption, "it is even more restrictive than what the DPH itself could lawfully impose."

The crux of the matter is that the Legislature has "fully occupied" required school vaccinations to the extent that "a paramount state concern will not tolerate further or additional local action," the ruling says, laying out the "who, what, when, and where" across 11 factors in state law.

The appellate judges also frowned on the district's alleged conflation of its legal right to administer vaccines — which also requires parental consent — with its right to impose new mandates. "Thus, even if interpreted as the District claims it should be, it would not authorize involuntary COVID-19 vaccination involved in this case."

The district also misreads a 64-year-old attorney general opinion on schools paying for immunizations, the court said. "There is a huge difference between having authority to pay for a flu shot and the power to require a student to get one as a condition of attending class."