Gwen Zittoun Interview on LexBlog 
February 13, 2015
Can Schools Completely Forbid Kids Who Are Not Vaccinated from Attending?

Colin O’Keefe: Colin O’Keefe, checking in for LXBN TV. There may not be a more controversial topic in the country right now than vaccination policies. But as the stakes grow higher this becomes an increasingly more serious fight. To discuss what schools can and can’t do when it comes to vaccines—they’re really on the front lines of this topic—we bring in attorney Gwen Zittoun. She’s based in Connecticut with Shipman & Goodwin, and author on their blog, School Law. 

Gwen, first off, this is a question that comes up a lot: is it legally possible for schools to forbid children who are not vaccinated from attending schools? I know personal belief exemptions are a big, big thing these days. But is it possible for schools to step in where lawmakers have not yet? 

Gwen Zittoun: Thanks for having me, Colin. It’s an excellent question, and student safety is really of the utmost concern for everyone—and that’s parents and schools alike. It’s a difficult topic. And the brief answer is, it depends. It really depends on state law, and what the state law says. The U.S. Supreme Court has said for states it’s within their police power to require immunizations of students attending schools, irrespective of religious beliefs and possibly other exceptions. 
But then it’s up to the states as to what they want to regulate. All 50 states do require immunizations of the students, with varying exceptions permitted. So really the bottom line is a school’s not permitted to violate their own state law. They would have to follow whatever that law is, and whatever guidance they’ve been given—from either their State Department of Education, or their State Department of Public Health, as well as any school board policies on this topic. 
And again, we all want to make sure that our student’s are safe, but we all have to comply with state laws. It’s all up to the legislature at that point to determine whether the exceptions will be permitted to a general requirement that students be immunized. 

Colin O’Keefe: That makes sense. And then, as the stakes grow higher and there are different types of outbreaks popping up, is there a right way for schools to handle this? I imagine you’ve written on this subject, I imagine you’ve probably spoken to schools about it. What’s your recommendation for keeping the school safe and legally compliant as well? 

Gwen Zittoun: Absolutely. And this really goes for a variety of other topics as well, and that is: stick to those state laws, your board policies, and any guidance you’ve been given from the Department of Health, the Department of Education. Often times schools, as in other places, are very busy places. We want to make sure we’ve followed all those rules to the T. 
I know in Connecticut we have guidance from our State Department of Public Health that allows certain students to be excluded from school if there are outbreaks of certain diseases that could be vaccinated against. And there are specific definitions of outbreak and all other things as well, so a lot of research has to be done. 
But really the safest thing, unless and until the legislature makes changes to a particular state, is to follow those rules as closely as possible. And make sure that upon admission schools are checking immunizations to make sure that students are only admitted if they are immunized or fall under one of the very specific exceptions to that rule. 
Another side of this, and this goes to your first question as well, the McKinney-Vento Act discusses students who are considered homeless. There’s an exception in that law also that requires schools to admit students without record of immunization if they are considered homeless under that law. And there are a lot of other rules that come with that, about how to assist in obtaining immunizations, but that’s another rule that should be followed closely by schools to assist in the safety of all students. 

Colin O’Keefe: That makes sense, and you raise a great point; a lot of research, a lot of thought has gone into these laws and these policies, so it’s really important to follow those policies and to of course just obey the law on the most basic level. 

Gwen Zittoun: Absolutely. 

Colin O’Keefe: Once again, that was Gwen Zittoun of Shipman & Goodwin. For more of her insight in this subject and others in the school law space—I imagine, I’m sure she’s going to be writing about this subject even more in the future as well—be sure to visit ctschoollaw.com. Thank you for joining me today, Gwen.

Gwen Zittoun: Thanks, Colin.