By Michelle Ball, California Education Attorney for Students since 1995
Most California public school students must be fully vaccinated to attend public or private classroom-based schools. If a student is not vaccinated, or does not fit within an exemption, they will be excluded from school until proof of vaccination is submitted. As a majority of children are vaccinated already, most parents will yawn and send their kids to school. However, what will happen if a student missed even one shot? Are there any options if a parent does not want to vaccinate their child for the student to attend regular school?
The list of required vaccinations is outlined in California Health and Safety Code section 120325 and 120335 and includes slightly different requirements if a student is entering classroom-based school in seventh grade or will start under the new law in transitional kindergarten through sixth grade. The vaccinations required if a student enters prior to seventh grade are:
(1) Diphtheria. (2) Hepatitis B. (3) Haemophilus influenzae type b. (4) Measles. (5) Mumps. (6) Pertussis (whooping cough). (7) Poliomyelitis (polio) (8) Rubella. (9) Tetanus. (10) Varicella (chicken pox).
If a student is unvaccinated when they start seventh grade, they do not have to receive the Hepatitis B vaccination. A presumption may be made that if a student enters beyond seventh grade, this also applies, but the law does not address this.
If a parent missed one of the required vaccinations, or failed to complete all required vaccination administrations (e.g.missed one of the shots in a series), the student may be excluded from school until the vaccination is completed. The student also may be allowed to continue attending so long as they seek vaccinations within a certain time period (unspecified).
If a parent does not obtain the vaccination within any offered time period, or is not vaccinated promptly, and the parent does not transfer their child to a non-classroom based school or program, it is possible the student will be subject to not only continued exclusion, but ironically, potential truancy breach allegations (breach of mandatory compulsory education laws requiring full time attendance for ages of 6-18 with student being potentially labelled truant after 3 missed days). As such, any student excluded will be in a bit of a time crunch and will need to act quickly.
There are a few ways around the legal requirement that a child be vaccinated to attend school:
1) EXEMPTION AND WITHIN GRADE SPAN: If a parent submitted exemption paperwork prior to January 1, 2016, their child may continue attending the current “grade span” unvaccinated. Grade spans outlined in the law are from birth to preschool, transitional kindergarten to sixth grade, and seventh through twelfth grade (see CA Health & Safety section 120335(g)). This means a student entering eighth grade in the fall of 2016 unvaccinated, with a personal belief exemption on file prior to January 1, 2016, may attend through high school. However, a student entering seventh grade in the fall of 2016 unvaccinated with a personal belief exemption on file is out of luck and must be fully vaccinated.
2) MEDICAL EXCUSE: If parents provides a physician’s opinion that their child cannot be vaccinated for medical reasons the student may attend unvaccinated (see CA H & S 120370).
3) SPECIAL EDUCATION: If a student is a special education student, the law states it “does not prohibit” them from receiving their special education and related services. The California Department of Health has clarified in their Frequently Asked Questions page, stating: “Students who have an individualized education program (IEP) should continue to receive all necessary services identified in their IEP regardless of their vaccination status.” There remains some grey area here, and the matter will only be clarified over time and/or by a court or state agency.
4) ATTENDANCE AT EXEMPT SCHOOL: Students may also avoid vaccination requirements by attending home-based private schools or public independent study programs with no classroom-based instruction. An example of this could be seen in an independent study charter or private school where a student remains home for instruction from their parent. Independent study via a traditional public school may also meet this requirement, so long as no classroom-based instruction is part of the program.
A lawsuit has been filed attempting to reverse the vaccination law based on the right to an education (see for example, Goss v. Lopez 419 U.S. 565). However, as of right now, the California mandatory vaccination laws, some of the most restrictive in the United States, remain in effect.
The drama and confusion which will unfold in this process will be difficult for some parents. Hopefully not too many students will be left in the dark or kicked out of their school while it all shakes out.
Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.