Requiring COVID-19 vaccinations, proof could place school districts in legal gray area

photo by: Sylas May/Journal-World Illustration

As COVID-19 cases continue to rise and Kansas schools contemplate precautions to make sure students can learn in person this fall, one possible option stands out above the rest — requiring eligible students and staff to get vaccinated.

But whether schools are willing to consider such an option remains to be seen, likely because it’s unclear whether they are even allowed to.

“The short answer is we don’t exactly know because this issue has never been tested,” said Mark Tallman, associate director of advocacy and communication for the Kansas Association of School Boards. “There is no specific authority for school districts to require COVID vaccination.”

Locally, that option does not appear to be on the Lawrence school district’s radar. District spokeswoman Julie Boyle said the district has not discussed the idea of mandatory COVID-19 vaccines. However, Kansas schools do have precedent in requiring vaccines for other viruses and illnesses.

Additionally, the district may consider wading into a different, but similar, gray area of requiring proof of vaccination.

In its recently announced plans for the fall semester, the district said students and staff who are not vaccinated would be expected to wear masks in school buildings. But it also said it would not require proof of vaccination, relying on people to tell the truth. But one school board member said during a recent meeting she wants the district to reconsider and make sure those who don’t wear masks in schools can prove they are vaccinated.

Meanwhile, Superintendent Anthony Lewis said during the same meeting that students and staff deemed to be in close contact with someone who tested positive for the virus would need to be quarantined, unless they were vaccinated. But in that instance, Lewis said the district — through Lawrence-Douglas County Public Health — would require proof of vaccination.

But Tallman said requiring proof of vaccination for such measures is similarly a gray area, and no Kansas law specifically addresses it either.

Currently, the idea for proof of vaccination for mask wearing is a moot point. Shortly after the school district announced the precautions allowing vaccinated individuals to go unmasked in school buildings, the CDC and health department published new guidelines recommending everyone over the age of 2 to wear masks while indoors, regardless of whether they have been vaccinated, because of increasing cases caused by the delta variant of the virus.

The school district quickly followed the recommendation and updated its announced measures, requiring everyone to be masked in its buildings, the Journal-World previously reported. The district has also repeatedly said its measures are subject to change.

Vaccine requirements

While requiring a vaccine for eligible students and staff might seem like the most extreme option, the idea is not far-fetched, mostly because schools already require students to get several other vaccines before attending school.

According to state law, Kansas students are required to receive seven vaccines before attending early childhood programs and K-12 school. Those vaccines are intended to address certain illnesses like hepatitis A and B, chickenpox, tetanus, measles, mumps, rubella and others. But the law does not address COVID-19.

Tallman said Kansas law may allow schools to require a COVID-19 vaccination because they are given some privileges through local control. Additionally, he said there is no state law prohibiting schools from requiring them.

“The issue is that, to my knowledge, there has never been a pandemic condition like this where this has been tested,” he said. “State law does not specifically allow them to require it and it doesn’t prohibit them. It would be up to the school board if they want to take that step,” he added.

That may be a touchy subject, as much of the response to the virus and how it affects schools has been a contentious issue since the pandemic emerged. Tallman said a local resident could challenge such an order, and it could make its way to the courts where a judge would need to interpret state law.

Another reason schools may not be interested in requiring a vaccine is that the vaccines are not yet fully approved by the FDA. However, President Joe Biden has said COVID-19 vaccines may receive full approval sometime this fall, according to the New York Times.

That might inspire state governments and school districts to take the plunge into a requirement, but that also remains to be seen. When asked whether she would support the school district requiring vaccines, school board President Erica Hill suggested that it was likely something that needed to be determined by health officials.

“The district should continue to rely on our federal, state, and local public health partners for the latest scientific knowledge and medical advice about effective mitigation strategies,” Hill said in an email. “Trusted public health officials decide on the required immunizations for attending schools and childcare facilities.”

In the meantime, district leaders have repeatedly said that the district strongly encourages those who are eligible to get vaccinated.

Proof of vaccination

Although the proof of vaccination for masking appears to no longer be needed, the district will ask for proof of vaccination when students or staff come in close contact with someone who tested positive for the virus.

Lewis said during the board meeting that when a close contact occurs, the district will work with the health department to determine whether the staff or students need to quarantine. He noted that the health department would have access to the Kansas Immunization Information System, also known as WebIZ, to see if the people who came in close contact with the COVID-positive individual were vaccinated. If an individual is not shown to be vaccinated there, Lewis said the district would then ask for proof. If individuals can’t prove they have been vaccinated, they then would be subject to quarantine procedures that would prohibit them from attending school or other related events for a specific period of time.

That is in contrast to what the district planned to do for masking. Under the original guidelines, the district said individuals in its buildings who were not vaccinated would be expected to wear a mask. However, it also said it would not require proof of vaccination for it.

That did not sit well with board member Kelly Jones, who said she didn’t trust the “honor system” of taking people’s word that they’d been vaccinated. She said she encouraged the board to consider asking those who want to go maskless to “voluntarily” show they are vaccinated.

“I do not want to have another year where students are not in person,” Jones said. “I want to see that we’ve done everything possible to make sure our students are in school, and that requires that we are vaccinated.”

Jones asked district administration to look into the realities of requiring proof of vaccination and report back to the board. The district may now be spared from considering that issue, as public health officials recommended all students and staff in school buildings wear masks, regardless of vaccination status, because of the increasing cases.

But if it comes up again, the district may find it’s not simple. Tallman said KASB sees the requirement of proof of vaccination as similar to requiring a vaccine. He said a school board could go that route, but it might be challenged and could end up in the courts. He recommends that districts seek legal counsel before taking those steps.

“School districts do have broad authority to set policies and manage student affairs, but they also don’t have unlimited authority,” he said. “State law is not clear and we are not aware of any case law that would (guide) this.”

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