PRIVATE SCHOOLS' ROLE AND RIGHTS IN SETTING VACCINATION POLICY: A CONSTITUTIONAL AND STATUTORY PUZZLE.

• Author: Levin, Hillel Y.

ABSTRACT

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools' rights to exclude unvaccinated children. It finds that the answer is "it depends." It also offers a model law that states should adopt to explicitly allow private schools to adopt policies to exclude unvaccinated children.

INTRODUCTION I. VACCINATION MANDATES AND EXEMPTIONS: WHAT AND WHY? A. A Short Primer on Vaccination and Community Immunity B. Mandatory Vaccination Laws in the United States and the Threat to Community Immunity II. PRIVATE SCHOOLS: THE PROBLEM AND THE LAW A. The Private School Context B. The Statutory Landscape for Private Schools C. The Possibility (and Limits) of Engaging in Sincerity Inquiries 1. What Is a Sincerity Inquiry? 2. Should Private Schools Engage in Sincerity Inquiries? III. BEYOND STATUTES: CONSTITUTIONAL DIMENSIONS OF PRIVATE SCHOOLS' VACCINATION POLICIES A. Challenging the Constitutionality of (Some) Vaccination Exemptions B. Religious Freedom: Church Autonomy 1. Hosanna-Tabor: The Ministerial Exception 2. Beyond the Ministerial Exception: Church Autonomy Under the First Amendment and Schools' Vaccination Policies C. Associational Freedom: Nonreligious Organizations' Conditional Freedom to Choose Their Members D. Putting It All Together IV. TROUBLING IMPLICATIONS AND POSSIBLE SOLUTIONS A. The Problems with the Current State of Affairs B. Legislative, Administrative, and Judicial Solutions CONCLUSION: BEYOND VACCINATION POLICY INTRODUCTION

In 2019, there were more than 1200 cases of measles reported in the United States, which is more than the total number of cases in the previous four years combined. (1) The last time the total number of cases of measles topped the millennium mark in an entire year was 1992. (2) Although the numbers this year are especially striking, this development reflects a broader trend line of the rising incidence of vaccine-preventable childhood illnesses. (3) In the wake of every major outbreak of these diseases, public health advocates, policymakers, and academics inevitably call for tighter vaccination laws and other means of increasing vaccination rates. (4) Sometimes laws change, but more often, they do not. (5)

Meanwhile, many private schools--which tend to have higher nonvaccination rates than public schools (6) and have been loci of outbreaks and drivers of regional epidemics (7)--have begun to consider refusing admission to students who are not vaccinated. (8) The problem is that some state laws appear to prohibit them from doing so. (9) The law here is frustratingly unclear, and the legal questions involve complex issues of both statutory and constitutional interpretation. This Article is the first to address this issue. In so doing, it exposes deep questions of First Amendment law that extend well beyond the context of vaccination.

On the statutory side, do vaccination mandates and exemptions apply to private schools at all? Here, the answer is "sometimes," for it depends on states' statutory schemes, the courts in each state, and even the type of private school. (10) On the constitutional side, the issues are even more complex, as they implicate three foundational values: individuals' rights to be free from the burden and costs of others' religious practices; other individuals' freedoms of religion and conscience; and institutions' religious autonomy and associational rights. When it comes to the issue of private schools' vaccination policies, these values and interests are on a collision course.

In untangling this mess of statutes and undertheorized constitutional values, this Article finds that the law is, well, a mess. In some states, all private schools might have a statutory right to reject vaccination exemptions; in other states, only religious schools have statutory permission to do so; and in yet other states, no private schools are granted such a right. (11) Meanwhile, some religious private schools have the constitutional right to reject exemptions, some nonreligious private schools might have a similar right, and some private schools probably do not. (12) This state of affairs is troubling for three reasons. First, it leaves a great deal of uncertainty for private schools. Second, there are deep constitutional problems with a regime that allows religious private schools to reject vaccination exemptions but that denies that right to similarly situated nonreligious private schools. And finally, it leaves children unnecessarily vulnerable to dangerous, debilitating, and life-threatening illnesses.

With this Article, I hope to make four important and different kinds of contributions. First, the Article describes the law as it currently stands. For at least some private schools, I offer clear answers, and for others, I can at least clarify the issues and the legal landscape. Second, I offer practical solutions to this problem by recommending that states clarify their statutes to allow private schools to exclude students who are unvaccinated for nonmedical reasons, and I offer clear statutory language to do so. I also suggest ways in which the judicial and administrative branches can help. Third, I explore the complex and heretofore undertheorized relationship between the First Amendment's religious autonomy and associational freedom doctrines, particularly as they relate to private schools. Finally, I show that the issues raised by the seemingly narrow question of private schools' vaccination policies have far-reaching implications for some contemporary and hot-button social and constitutional questions.

The Article proceeds as follows. Part I offers a brief introduction to vaccines and vaccination law. It also describes the dangers associated with nonvaccination and the necessity of high vaccination compliance rates. Part II then introduces the particular context of private schools and considers how states' statutes mandating vaccination apply to them. It also assesses whether private schools may and should conduct sincerity inquiries to determine whether individual claimants for vaccination exemptions are entitled to them. Part III addresses the complex constitutional questions involved when private schools choose to exclude nonvaccinated children from admission. It finds some clarity, some lack of clarity, and some troubling practical and constitutional implications. Part IV then explores these implications and offers concrete solutions.

Finally, the Article concludes by exposing and briefly addressing the much broader questions implicated by the religious and associational freedoms analyses. When may private schools discriminate and on what basis? Against whom? What other state statutes may they ignore? On what constitutional grounds? These questions have particular salience today, in a parallel context: do religious organizations have a constitutional right to exclude or discriminate against people on the basis of sexual orientation or sexual identity despite states' laws guaranteeing LGBTQ equality?

1. VACCINATION MANDATES AND EXEMPTIONS: WHAT AND WHY?

   Vaccines have been among the most successful public health interventions in history. (13) Mandatory vaccinations in the United States provide protection from diseases that once threatened to wipe out communities. (14) These diseases are now eradicated, preventable, or manageable. (15) Among children born between 1994 and 2013, routine childhood vaccination will have prevented roughly 322 million cases of disease and 732,000 deaths, with an estimated net cost savings of $1.38 trillion. (16)

   Nevertheless, the choice of a relatively small but growing minority of parents to opt out of vaccination protocols puts the lives and health of their children and, crucially, others in the community as well, at risk. This Part briefly explains the importance of vaccination, the dangers of nonvaccination, and reviews the statutory landscape.

   1. A Short Primer on Vaccination and Community Immunity

      Vaccines work by introducing a benign pathogen into the body that primes the immune system to fight off a related, dangerous version of the pathogen. (17) This process is safe. Complications from mandatory vaccines are mild, and severe complications are exceedingly rare and almost nonexistent. (18) More than two dozen vaccines against major diseases are available, and more are being developed. (19)

      Critically, vaccines' efficacies go beyond their ability to immunize the individuals who receive them. Once enough people in a community are immunized through vaccination, the entire community benefits from what is known as "community immunity," or what is more commonly (but less preferably) referred to as "herd immunity." (20) Community immunity occurs when so many people in a group are immunized that the disease cannot reach any non-immunized individuals that remain because the vectors of disease transmission are effectively closed. (21)

      The development and maintenance of community immunity is critical because every society will have some who cannot, or will not, be immunized. Some are too young to be vaccinated. (22) Others cannot be vaccinated for medical reasons. (23) Yet others receive vaccines but may not successfully develop complete immunity, (24) and others' immunity may have waned since having been vaccinated. (25) Still others are undervaccinated due to lack of access to healthcare or for other socioeconomic reasons. (26) Finally, and most problematically, some parents choose not to have their children vaccinated, either because of...