California guarantees its students a free public education according to its Constitution. Over many years, the state's lawmakers have protected students against discrimination and inequality in the classroom. Tracy Seipel, writing for the San Jose Mercury News, says now a debate over protected access to an education is brewing and has resulted in the most heated legislative battle seen this year. The issue is: Does one student's right to an education override another student's right to remain healthy?
This question is at the center of Senate Bill 277 which aims at tightening the requirement that all children be vaccinated in order to attend a California school. Parents fighting the bill say the mandate for across the board vaccinations takes away their children's constitutional right to an education. Legal experts, however, say state and federal laws allow the government to first protect the health of the community.
"Schools have to be safe, and the state has the power to regulate the schools for safety," said Dorit Reiss, a professor and vaccine law expert at UC Hastings College of the Law in San Francisco.
The bill was introduced by state Sen. Richard Pan (D-Sacramento) and two other legislators in February following the outbreak of measles that began in mid-December at Disneyland. At that time, state health officials attributed the multiple diagnoses of measles to unvaccinated individuals. If the bill passes, parents would not be allowed to obtain exemptions based on personal belief, including religious reasons, and then send their children to school without immunizations. Mississippi and West Virginia have already passed such a bill.
For those parents who choose not to vaccinate their children, the only option would be home schooling, which has been questioned by the Senate Education Committee and parents who are not in a position to stay home to teach their children.
State epidemiologist Dr. Gil Chavez says, in spite of the fact that 92% of California kindergartners are vaccinated, the recent outbreak would not have occurred if more people in California had been immunized. In some parts of the state, the percentage of children who are vaccinated drops to 50% and even lower in areas where many parents have obtained personal belief exemptions. These lowered rates are the reason that "herd immunity" is eliminated making the spread of measles and other infectious diseases more likely.
Bill Koski, a Stanford University professor of law and education, says "the unconditional right to receive an education is not unconditional." One example he cited was a student carrying a concealed weapon. Even if the student had a permit to do so, the school would be within its rights to say that guns are not allowed on campus.
UC Berkeley law professor Stephen Sugarman said:
"We interfere with people's liberty in the name of public health in many ways." He pointed out that individuals with tuberculosis can be quarantined, while chemicals are added into the public water supply to fight tooth decay.
In an editorial published in The Fresno Bee and written by the editorial board, the writers point out that twenty-nine states require students to be vaccinated unless they can show they should be allowed medical or religious exemption. Two other states allow parents to refuse immunizations for their children if they present a doctor's note. Even if those states have anti-vaxxers, somehow the children have managed to get an education.
Those parents who say their children will be denied an education if the state makes it harder to put their non-immunized children into classrooms with immunized children are wrong. First, the rights in question, refusing immunizations and receiving free education, are not equivalent. There are options when it comes to getting a free education in California, but there is only one way to prevent a polio epidemic. In the end, say the editors:
"No one has an inalienable right to endanger public health."